Sterndale v Laurie - [2009] WADC 83

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STERNDALE -v- LAURIE [2009] WADC 83

CORAM: O'BRIEN DCJ

HEARD: 14 APRIL 2009-1 MAY 2009

DELIVERED : 5 JUNE 2009

FILE NO/S: CIV 262 of 2007

BETWEEN: JOHN PAUL STERNDALE
Plaintiff
AND
FREDERICK JAMES JOHN LAURIE
Defendant

Catchwords:

Assessment of damages for personal injury - Causation - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded to plaintiff

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC & Mr J D'Angelo
Defendant: Mr J Staude

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

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

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Amaca Pty Ltd v Hannell [2007] WASCA 158
Amaca Pty Ltd v Moss [2007] WASCA 162
Baird v Roberts [1977] 2 NSWLR 389
Berry v Hames Sharley (WA) Pty Ltd [2008] WASCA 59
Bonnington Castings Ltd v Wardlow [1956] AC 613
Bowen v Tutte (1990) Aust Torts Reports 81‑043
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
March v E & MH Stramare Pty Ltd (1991) 65 ALJR 334
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Poseidon Ltd & Sellars v Adelaide Petroleum NL (1992-1994) 179 CLR 332
Purkess v Crittenden (1965) 114 CLR 164
Shorey v PT Ltd (2003) 77 ALJR 1104
South Australia v Ellis [2008] WASCA 200
Thomas v O'Shea (1989) Aust Torts Reports 80‑251
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
WA v Watson [1990] WAR 248
Watts v Rake (1961) 108 CLR 158
Wenkart v Pitman (1998) 46 NSWLR 502

O'BRIEN DCJ:

Introduction

On 10 May 2003, the plaintiff and his family were sitting in the alfresco area of a restaurant in James Street, Northbridge.
The defendant negligently reversed his car and collided with the plaintiff. The impact of the collision pushed him back in his chair and he ended up wedged between the table and a wall ("the accident").
The defendant admits negligence.
The plaintiff's action is for damages resulting from the accident.
The plaintiff is a commercial airline pilot. Before the accident he had been diagnosed with atrial fibrillation ("AF") and for a time he was not certified as medically fit to fly.
At the time of the accident, the plaintiff's licence had been reinstated.
The plaintiff claims that the accident caused a crush injury of the chest, including fractured ribs and associated bruising; aggravated his AF; and caused a psychological condition. The AF symptoms resolved with treatment. The plaintiff claims that the psychological condition continues and that it prevents him from working as a pilot indefinitely.
The case is essentially about whether the accident caused those injuries and conditions.
The defendant's case is that although the accident precipitated an episode of AF, it did not cause any chronic aggravation of the plaintiff's pre‑existing condition so as to place him at any increased risk of a cardiovascular event.
Alternatively, if there were an accident caused aggravation of the plaintiff’s pre-existing AF, it was successfully treated by catheter ablation and, since January 2004, has been controlled to the same extent as it was prior to the accident.
Further, even if the accident caused an aggravation of the plaintiff's pre‑existing AF, he was at considerable risk of this condition becoming refractory in any event before his expected retirement age.
The defendant now does not dispute that the plaintiff suffers from a stress related psychological condition, but disputes the diagnosis of chronic adjustment disorder and that it was caused by the accident.

The plaintiff's background including his medical condition and treatment

The plaintiff was born in Australia on 7 August 1956 and is now 53 years old. He was 45 years old at the time of the accident.
The plaintiff's father was a pilot and his family moved to Switzerland when he was 4 years old.
The plaintiff testified that he has only ever wanted to work as a pilot.
He completed his primary school in Switzerland and one year of high school.
His parents divorced when he was 14 years old and he moved back to Australia with his mother.
He completed his high schooling to Year 12 in New South Wales.
When he was 19 years old he went to Europe to be with his father, hoping for some financial assistance to achieve his ambition to be a pilot. He stayed for a year.
In 1975, he settled in Perth. He worked in several jobs and saved to pay for flying lessons.
The plaintiff obtained a student pilot licence on 3 February 1976 and eventually obtained a first class transport license on 16 November 1992 which qualified him as a pilot for a commercial airline.
The plaintiff has been employed as a pilot from 1 January 1980 almost continuously until 31 March 2002.
He was married in 1979 to a Swiss woman who wanted to return to Switzerland.
Accordingly, from 1 April 1983 until 31 March 2002, the plaintiff was employed as a pilot with a number of airlines, predominantly airlines associated with Swiss Air which ceased operations on 31 March 2002.
Suffice to say that the plaintiff has considerable experience flying commercial passenger airlines on short, medium and long range journeys in a number of different aircraft.

Qualifications for pilot licence

In order to qualify for an Australian pilot licence, a person must demonstrate the necessary training and professional competency. The licence is valid only if the pilot (relevantly) holds a Class 1 medical certificate. The Civil Aviation Safety Authority ("CASA") regulates pilot licences.
The pilot must undergo a medical examination by a designated aviation medical examiner ("DAME"). In this case, Dr John Bateman is the DAME who mainly dealt with the plaintiff.
Before the age of 40 years, a pilot must be examined once a year by DAME. Thereafter, a pilot must undergo two examinations per year.

The plaintiff's medical history before the accident

The plaintiff has hypertension. His level is in the upper normal range. The DAME prescribed medication. This has controlled the hypertension. The plaintiff has taken the relevant medication for 13 or 14 years.
For the last three years he has taken medication for hypercholesterol.
On 21 July 1984 the plaintiff was involved in a parachuting accident. He suffered a compression fracture of his spine at L1. He claims to have made a full recovery from that injury.
On 29 May 1996, the plaintiff underwent an angiogram for atypical pain in his left arm. Essentially, the results were normal.
Dr Gerhard Junga, a cardiologist who reviewed the plaintiff on 29 June 2004, reported that the angina like pain which induced the angiogram was "stress induced". Presumably this note was based on the plaintiff's account or on previous reports. Dr Bateman made an equivocal note to the same effect underneath the notation of the 1996 angiogram when he saw the plaintiff on 9 September 2002 ("chest pain – stress‑related?").
Dr Bateman was unable to testify at trial as he was ill during the trial.
Dr Miriam Reif is the Swiss equivalent of a DAME. She has known and examined the plaintiff since 1998 in connection with the issue of a medical certificate for the Swiss aviation authorities. She testified and reported that in 1996 when the plaintiff had the angiogram, his symptoms were occasional cardiac fibrillation and increased fatigue, during those episodes and "he felt like warmer temperatures" and tired, so he had to stop what he was doing and sit down and relax.
In 1997 the plaintiff had back surgery for a disc hernia.
In September 2001 Dr Bateman conducted an ECG during a routine medical check and diagnosed the AF. Accordingly, the plaintiff's medical certificate was not renewed.
The principal symptom appears to have been fatigue. The plaintiff also reported fatigue to Dr Neil Ozanne, his general practitioner, on 3 January 2003 and he testified that he had fatigue due to AF.
The plaintiff testified that otherwise he had no symptoms from his AF. After diagnosis, he was only aware of a "butterfly" sensation in his chest. He put this down to the newfound awareness of the condition. He had no pain whatsoever. There was no underlying heart disease and no underlying cause to trigger the AF.
The plaintiff told Dr Reif about the AF diagnosis. As a result his Swiss medical certificate was not renewed (16 October 2001) and Dr Reif declared the plaintiff "unfit for good".

Medical treatment and status of the plaintiff's pilot licence after the AF diagnosis

The attack on the World Trade Centre in September 2001 ("9/11") had a dramatic effect on the airline industry. As a result of 9/11, Swiss Air stopped operating in March 2002.
The plaintiff decided to return to Australia and arrived on 15 July 2002.
Dr Bateman referred him to Dr Bernard Hockings, a cardiologist, for treatment of his AF. Dr Hockings prescribed a variety of medications, general fitness training and dietary modification.
Before the accident, the plaintiff saw Dr Hockings on 8 February 2002, 12 August 2002 and 18 September 2002. Dr Hockings reported that the AF was fairly well controlled with the drug Sotalol before the accident.
Dr Hockings supported an application to CASA for reissue of the licence by letter dated 12 August 2002.
On 22 August 2002, CASA issued the plaintiff with a pilot licence with the restriction that he could only fly "as or with a co‑pilot" ("multi‑crew condition"). CASA also required a cardiologist's report concerning the plaintiff's AF.
Dr Hockings then wrote to CASA on 25 September 2002 requesting re‑consideration of the multi-crew condition. He advised that the plaintiff was "at very low risk for embolic events (<1%)" and that the plaintiff was prepared to stop taking Warfarin which had been prescribed for his AF. CASA required the plaintiff to obtain a second opinion from a cardiologist.
Dr Phillip Cooke, cardiologist, saw the plaintiff on 2 December 2002. In essence, Dr Cooke reported that:
"(A)ssuming good control of blood pressure…I would estimate Mr Sterndale's risk of a cerebrovascular event at 1% or less … In the presence of well controlled anticoagulation with Warfarin, I would estimate the risk of intracranial haemorrhage at <0.5% per year".
On 12 February 2003, CASA removed the multi‑crew condition on the plaintiff's medical certificate but required that it had to be renewed by CASA.
In the meantime, by application dated 22 November 2002, the plaintiff had applied for a job with China Airlines but did not forward the application pending the lifting of the restriction on his licence. He said he submitted the application late and never got a response.
On 25 February 2003, the plaintiff applied for a job with Qatar Air. However, in March 2003, the second Gulf War commenced. Qatar stopped operating and the plaintiff's application effectively was put on hold.
From February 2003 until the date of the accident, the plaintiff made no further applications for employment nor has he since the accident. He testified that he was keen on obtaining a position with Qatar Air and was prepared to wait. Effectively, the plaintiff has not been employed since September 2001.

Summary of plaintiff's medical condition before the accident

The plaintiff had hypertension and high cholesterol which had been controlled with medication for many years.
He had low back pain. The plaintiff had degeneration of the spine at L5/S1 and early degenerative change at L4/5. He had planned surgery in May 2003 to remedy the L5/S1 condition.
In September 2001 the plaintiff had been diagnosed with AF which was intermittently mildly symptomatic. Dr Hockings prescribed the drug Sotalol for the AF in February 2002. The evidence establishes that the plaintiff stopped taking Sotalol in November 2002. The plaintiff told Dr Cooke that he discontinued Sotalol because it was "slowing him down too much and caused exertional dyspnoea".
Dr Jitu Vohra, a cardiologist called by the plaintiff, agreed that these symptoms, along with depression and sleep disturbance, were consistent with side effects of Sotalol.
Drs Hockings and Vohra said that fatigue is also a likely side effect of Sotalol.
Dr Hockings testified that the plaintiff told him that he suffered from [unspecified] side effects of amiodarone and flecainide but not from bisoparol (a Sotalol‑like drug) which drugs were prescribed in Switzerland. He said that the plaintiff did not report any side effects from Sotalol.
Therefore, in my view, it is unlikely that any fatigue reported by the plaintiff before the accident was the result of Sotalol.
The defendant submits that the AF, which Dr Hockings said had been under control with Sotalol, in fact, was not under control with medication given the plaintiff's reported symptoms and that when he saw Dr Ozanne on 6 January 2003 he was "in" atrial fibrillation.
Dr Hockings testified that AF would be under control if sinus rhythm is maintained 100 per cent of the time or if the ventricular rate is controlled.
There is no objective evidence of AF immediately before the accident apart from Holter Monitoring in September 2002 which revealed 28 minutes of AF within 24 hours.
There is no evidence of depression or sleep disturbance before the accident. The likely symptoms of AF include shortness of breath, fatigue and palpitations. Dr Hockings testified the symptoms include "an uncomfortable awareness of your heart rate".
The plaintiff had no underlying heart disease or structural problems with the heart before the accident.
The plaintiff had no psychological history or treatment before the accident. However, he experienced chest pain in 1996 and there is an inconclusive diagnosis that it was stress induced.

The accident

On 10 May 2003, the plaintiff was seated with his family in the alfresco area on the verge of James Street, Northbridge in Vino Vino Restaurant.
He had his back to the traffic and a wrought iron fence was at his back.
He heard a "scrunching sound" and then he was pushed along by the car with the table he was sitting at. He said the table passed over the top of his son and daughter who were seated opposite him and then hit a post.
The legs of his chair were sheared off and the table was pushed up under his ribs. He was wedged against the wall with the table at an angle under his ribs. His whole weight was pushing down onto the table.
He said he was unable to utter a sound as he was "squeezed in".
Eventually one of his daughters got the table to collapse which took the pressure off his chest.
He said he did not experience any pain until he was released from the table. He then gasped for air. He said that it felt like his heart was pounding very fast and very strongly and he had a lot of chest pain across his lower chest and some "upper pain" which he associated with his heart rate.
He had never experienced that sensation before then. There was no comparison to the fluttering he had felt in his heart before the accident. He said there was in a lot of chest pain and every breath hurt "like crazy". He said he had quite a bit of back ache as the fence had pinned him.
He was taken to the Royal Perth Hospital by ambulance and treated in the Emergency Department where he remained for around 12 hours until he was discharged the next morning.
During his stay in hospital various investigations were conducted.
It is not in dispute that the plaintiff underwent an acute episode of AF.
The plaintiff testified that the symptoms of AF spontaneously resolved after 12 hours. However, he testified that as he was leaving the hospital and getting into his car the AF returned. He said it was unmistakeable. He did not want to go back to the hospital but after hours rang his general practitioner, Dr Ozanne.
Once the painkillers prescribed at the hospital had worn off he said the pain came back "with a vengeance".
He saw Dr Ozanne the next day and was prescribed Tramal, a painkiller, and referred for x‑rays and a bone scan.
The Tramal proved very effective.
A bone scan on 30 May 2003 revealed undisplaced anterior rib fractures involving the anterior ends of the right 7th and 8th and the left 6th to 9th ribs. There was associated bruising to the upper abdomen.

After the accident

The plaintiff testified that he had a lot of pain and shortness of breath which he put down to his broken ribs. He also had chest discomfort. When he lay down he got dizzy when he got up from lying down.
He said his ribs healed within six to eight weeks. His back was still sore for about six months but not to the point where it was debilitating.
He said the AF was almost continuous. There were very few times during the day when he did not feel the AF. He said it was not painful but made him very tired. He became very concerned as the symptoms were far worse than before the accident.
The plaintiff said that he knew that he was not going to get his licence back soon so he decided to get his back fixed.
Dr Ozanne's consultation notes reveal that the plaintiff complained of back pain from 3 January 2003 with similar complaints noted on 28 January 2003, 26 February 2003 and 14 March 2003. Dr Ozanne referred the plaintiff for various diagnostic tests and then to Dr Andrew Miles, a neurosurgeon.

Dr Miles

On 28 August 2003 Dr Miles performed a lumbar disc implantation at L5/S1. This surgery was originally scheduled for May 2003 but the accident caused the postponement. The plaintiff said that after the surgery his back was initially very painful. Although the plaintiff still suffered some back pain in September 2004, he was able to cope with it. Dr Miles considered that this pain arose from the L4/5 disc. The plaintiff decided against further surgical intervention after discussion with Dr Miles.
Dr Miles said that in his experience, most patients, from a diverse range of occupations, who undergo the disc procedure return to work at full capacity within two or three months.
Dr Miles' firm opinion was that the back condition was not related to the accident.
Following the back surgery the plaintiff was referred to Dr Michael Kent, a pain specialist, and underwent facet joint injections in April 2004 and investigative discography in August 2004.
On 30 November 2004, the plaintiff was still experiencing lower back pain.
Dr Miles said that before the disc implantation, the plaintiff was debilitated by back pain.
In a medical report to the Swiss Federal Disability Insurance authority dated 14 March 2003, Dr Ozanne certified that the plaintiff was 100 per cent incapacitated from work indefinitely from October 2001 due to the back condition and AF and that no further medical examination was required to determine incapacity.
These opinions reveal the nature and extent of the back pain which the plaintiff was experiencing and which was getting worse from at least January 2003 when Dr Ozanne first saw him.
The evidence establishes that the back surgery in August 2003 was successful and the plaintiff was able to cope with ongoing pain.

Dr Weerasooriya

Due to ongoing concern and symptoms related to his AF and the failure of medication to alleviate the symptoms, on 8 October 2003, Dr Hockings referred the plaintiff to Dr Ruckshen Weerasooriya, a cardiologist, for consideration of a pulmonary vein ablation procedure ("ablation"). Dr Weerasooriya specialises in cardiac electrophysiology. He described himself as "an electrician of the heart".
The plaintiff testified when he went to see Dr Weerasooriya, that continuing symptoms included excessive perspiration which did not exist before the accident; dizziness; racing heart/palpitations; exhaustion and fatigue to the point of struggling to stay awake; irritability and insomnia. He became convinced that he was having a heart attack. The length and sensation of the AF bouts felt a lot stronger. He said that he did not have any of these symptoms before the accident. The plaintiff said he "pushed" to get the ablation done as quickly as possible.
Dr Weerasooriya explained the ablation procedure as follows:
"… we cauterise the muscle tissue in the heart, and by cauterising or burning the tissue, ... by selectively cauterising areas of the heart muscle and converting the muscle to scar, that effectively acts like an electrical insulator, and then no longer allows the short circuits to occur ... We do that in a minimally invasive way by using catheters which are passed through the groin up into the heart. It's a little bit like keyhole type surgery, and using x‑rays and other technologies to tell us where we are."

Dr Weerasooriya performed ablations on 6 November 2003 and 17 January 2004. This was the last resort as all medication options had been exhausted. Dr Weerasooriya reported that prior to the accident, the plaintiff would not have been a suitable candidate for ablation as "his symptoms were far too well controlled on anti‑arrhythmic medication".
The plaintiff testified that after the first ablation the AF became more noticeable again as it "reactivated itself more and more".
After the second ablation, the plaintiff said that he could not feel the AF any more. He expected that he would do more physically but he quickly noticed that the shortness of breath "remained". Dr Weerasooriya testified that the plaintiff did not complain of shortness of breath until after the second ablation.
The plaintiff said that when he got upset about things, he got angina‑like symptoms. These included tightness around his chest which went into the throat, neck and jaw. The dizziness remained. He was convinced that something was still wrong with his heart and was getting more and more worried about his pilot licence.
On 26 November 2003 Dr Hockings wrote to a medical officer at CASA enquiring if CASA had any specific requirements of the plaintiff. This was not accompanied with an application for renewal of his medical certificate.
On 17 May 2004, Dr Hockings wrote to CASA requesting removal of the "CASA only renewal" condition on the medical certificate and restoration of an unrestricted pilot license. In that letter Dr Hockings referred to the plaintiff's history, his stress test and the chest/throat discomfort with emotional stress.
By letter dated 24 May 2004, CASA declined the request.
On 11 June 2004 the plaintiff applied to CASA for renewal of his medical certificate. It was accompanied by a questionnaire recording an examination by Dr Bateman. Dr Bateman recommended that the certificate be endorsed "CASA to renew if appropriate".
CASA renewed the medical certificate on 23 June 2004 which was endorsed "Renew by CASA". Dr Tak Sham, a medical practitioner responsible for medical certification of pilots with CASA, testified that the decision was based on Dr Bateman's report and the reports of the cardiologists and neurologists. Dr Sham testified that the effect of the endorsement was that a DAME could not refuse to issue a medical certificate but should send the application to the Aviation Medical Section for consideration.
However, the plaintiff said that Dr Bateman advised him not to exercise the privileges of his licence. At that time the plaintiff said that he still had shortness of breath, dizziness, lack of sleep and angina‑like symptoms. He did not feel that he was fit to fly and felt "very much like an old man".
Given the plaintiff's account of his symptoms, I find it odd that he should request Dr Hockings to support an application to CASA in May 2004 for the removal of the restriction on his license and that he should himself apply for the renewal of his medical certificate in June 2004.
On 16 August 2004, CASA received correspondence from Dr Bateman (11 August 2004) enclosing the opinions of Dr Hockings (9 August 2004) and Dr Reif that the plaintiff was not fit to fly. Dr Bateman was also of that view. Dr Sham was not prepared to rely on those opinions as he said the material provided by those doctors contained no basis for their opinions.
By letter dated 17 August 2004 to Dr Bateman, Dr Sham enquired whether there were any new developments in the plaintiff's condition. Dr Sham considered that Dr Bateman's reply dated 2 September 2004 provided no new information.

Dr Peter Bremner

Dr Bateman referred the plaintiff to Dr Peter Bremner, a respiratory physician, whom he saw on 5 May 2005.
According to Dr Bremner, the plaintiff reported that he had shortness of breath since the accident which became more noticeable after the second ablation. He noted that the plaintiff "remains reasonably active and independent". The plaintiff reported to Dr Bremner that he experienced chest tightness beginning in the epigrastum and radiating up to the chest and jaw, usually associated with emotional upset.
Dr Bremner excluded any physiological cause for the plaintiff's breathing symptoms. There was mild airway dysfunction on spirometry. In summary, Dr Bremner considered that the plaintiff had "a non‑specific reduction in ventilatory capacity, which may be related to his chest trauma with subsequent reduced chest wall compliance". He considered the mild ventilatory impairment would be insufficient to explain the plaintiff's breathlessness on exertion. He arranged further investigations.
By 25 July 2005, the plaintiff had undergone a bronchial provocation test and a drug trial. Dr Bremner was of the view that the pulmonary exercise test suggested that the plaintiff's physical deconditioning was the likely cause of his breathlessness given that his ventilator capacity was unchanged and insufficiently impaired to account for his symptoms. There was a possibility that the chest wall had become more rigid due to the accident caused chest injury.
Following those tests, the plaintiff contacted Dr Bremner on 26 March 2006, concerned to explore explanations for his shortness of breath which may not be due to deconditioning, for example, an underlying heart disease. Dr Bremner's overall opinion has not altered. However, he wrote to Dr Ozanne on 23 March 2006 advising that the broken ribs will no doubt result in some reduction in chest wall compliance which in turn would translate into some reduction in exercise capacity.
When all tests failed to identify a physical cause for his ongoing symptoms, the plaintiff said that he became more and more depressed and moody. He thought he was not fit to fly. He thought his career had ended.
In 2006, the plaintiff arranged a review of the medical reports by Professor Rene Pretre, a specialist cardiologist practising in Zurich. I refer to Professor Pretre's evidence below.
In 2008 during a consultation with the plaintiff, Professor Pretre suggested in passing that the plaintiff be checked out by a psychiatrist.

The psychiatric assessments

The plaintiff consulted Dr Frederick Ng, a forensic psychiatrist, for a medico‑legal review on 19 June 2008. Dr Ng diagnosed the plaintiff as suffering from pathological anxiety and depressive symptoms. Dr Ng said the diagnosis, in accordance with the DSM‑IV‑TR, was chronic adjustment disorder with mixed anxiety and depressed mood.
Dr Blumberg, a consultant psychiatrist, provided psychiatric treatment to and review of the plaintiff from 3 July 2008 until 9 April 2009. He concurred with Dr Ng's diagnosis.
Dr Blumberg referred the plaintiff to Mr Wygill, a clinical psychologist, for cognitive behavioural therapy.
The plaintiff testified that he got panic attacks at night where he would wake up extremely tense with pins and needles in his arms and legs and soaked in perspiration. He would also get "the chills". In my view, it is far from clear on the evidence when the plaintiff experienced these symptoms. However, it appears that the plaintiff was talking about symptoms he was experiencing when he consulted Dr Blumberg.
During the day, the plaintiff said he tended to have more anxiety. Little things would upset him and he would get tightness in his chest which progressed on occasions to his jaw. He also got "the shakes", breathed more rapidly and his heart rate increased.
Before the psychological treatment he said he would suffer from anxiety attacks on a daily basis. After the treatment by Mr Wygill, he still had anxiety attacks once a day but the panic attacks reduced to two or three times a week. He said that he can now handle these attacks better because he knows how to recognise them. The plaintiff gave no evidence as to the difference, if any, between the symptoms of panic attacks and anxiety attacks.
The plaintiff said that his current symptoms include shortness of breath, dizziness, heavy perspiration, insomnia, and angina like symptoms.
As I observe later in this judgment, I doubt that the plaintiff is an accurate historian and it is not clear when he experienced the onset of the symptoms he described.
The trial was originally listed to commence on 31 March 2008 but was adjourned until 31 August 2008. Before its commencement, the plaintiff applied for leave to adduce psychiatric evidence and amended his statement of claim. Accordingly, the August trial dates were vacated and the trial was relisted to commence in May 2009.
On 29 September 2008, the plaintiff underwent a medical examination by Dr Dymond, a DAME. By letter dated 29 September 2008 from the plaintiff's solicitors to CASA, accompanied by numerous medical reports, the plaintiff sought renewal of his medical certificate. The plaintiff had not communicated with CASA either directly or through his doctors between 2 September 2004 and 29 September 2008. The 2008 application clearly was made primarily for forensic reasons.
By letter dated 8 October 2008, Dr Sham informed the plaintiff of his decision to refuse a medical certificate. This was because of the plaintiff's depression and anxiety symptoms which had an uncertain prognosis. Dr Sham invited the plaintiff to show because why his certificate should be renewed.
Dr Sham testified that at that stage, the plaintiff had no cardiological issues which would disqualify him from obtaining a medical certificate. He said that in order for a medical certificate to be issued, the psychiatrists would have to certify in effect that the psychological condition had either resolved or been treated.
By letter dated 20 November 2008, Dr Sham advised the plaintiff that as there was no new information forthcoming, he would not issue the medical certificate.

The law

The plaintiff must prove on the balance of probabilities that the accident caused his injuries.
The applicable legal principles are not in dispute and are well traversed in the cases.
Questions of causation are not determined by reference to complex philosophical considerations, but as a matter of commonsense and experience: March v E & MH Stramare Pty Ltd (1991) 65 ALJR 334.
The defendant will be liable if his negligence caused or materially contributed to the damage claimed. It is sufficient if the plaintiff proves that the negligence is a material contributing factor to the damage claimed: Medlin v State Government Insurance Commission (1995) 182 CLR 1; Shorey v PT Ltd (2003) 77 ALJR 1104; WA v Watson [1990] WAR 248. The plaintiff will prove that the contribution is material if it is shown on the evidence not to have been negligible: South Australia v Ellis [2008] WASCA 200 applying Bonnington Castings Ltd v Wardlow [1956] AC 613 at 621; WA v Watson (supra) at 286.
As well as considering the relevant expert evidence on the issue, a court is entitled to start with "presumptive inference" which the "sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology": Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563; and Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303.
When the plaintiff establishes harm within the sphere of risk caused by the defendant’s negligence, an onus shifts to the defendant to show it is unrelated to that negligence: Amaca Pty Ltd v Hannell [2007] WASCA 158; Amaca Pty Ltd v Moss [2007] WASCA 162.
In this case to the extent that the defendant alleges that any incapacity to fly (which is denied) is due to pre‑existing conditions, the onus is on the defendant to disentangle and quantify the extent of the plaintiff disability caused by such pre‑existing/concurrent conditions: WA v Watson (supra) at 312; Watts v Rake (1961) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Shorey v PT Ltd (supra) at [44‑45]. However, the defendant merely has an evidentiary burden. That burden being discharged, the ultimate onus is on the plaintiff to show, on all of the evidence, what has been the effect of the accident related injuries: Purkess v Crittenden (supra) at 168.
Where the defendant alleges that a plaintiff is fit for alternative work, the defendant carries an onus to show that is so and also carries an onus as to the availability of such work: Thomas v O'Shea (1989) Aust Torts Reports 80‑251; Baird v Roberts [1977] 2 NSWLR 389; Bowen v Tutte (1990) Aust Torts Reports 81‑043.
In this case the defendant alleges that the plaintiff failed to mitigate his loss. In that situation the defendant must prove that there has been such a failure on the part of the plaintiff and that that failure has been unreasonable: Wenkart v Pitman (1998) 46 NSWLR 502 at 523.
Essentially, the issues for determination in this case are factual issues to be determined by the application of the principles outlined above.
As to whether the accident cause the psychological condition, I refer to the dicta of Deane, Dawson, Toohey and Gaudron JJ in Medlin v The State Government Insurance Commission (supra) at 6 - 7 (citations omitted):
"For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience … [W]here the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage … the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision."
It is necessary to determine whether the potential causes for the psychological condition are alternative, that is, whether the condition can be attributable to only one of them, or cumulative, that is, if they operate inter‑dependently to produce the injury or disease. Steytler P and McLure JA said in Ellis (supra):
"[312] If the state of medical knowledge is such that experts are unable to assist in identifying the actual cause(s) of a disease or whether potential causes are cumulative, there remain the question whether the law permits a plaintiff to jump the evidential gap in proving causation and if so, in what circumstances. The majority in [Amaca Pty Ltd v Hannell (2007) 34 WAR 109] answered the question in the affirmative at least where the same causative agent is involved [420]."

The plaintiff's heart condition

The defendant concedes that the acute AF experienced by the plaintiff after the accident was caused by the accident and that the second ablation "cured" the AF. These concessions are well made and are supported by the medical evidence. I therefore will not detail that evidence on those particular issues.

If the accident did not happen, what was the likely progression of the AF?

There are different categories of AF according to the level of seriousness.
"Lone" AF is where there is no underlying defect of the heart. The plaintiff had lone paroxysmal (occasional) AF which is the mildest form. The next levels are permanent and persistent AF.

Professor Rene Pretre

Professor Pretre is a cardiac and trauma surgeon and a Professor of Surgery at the University of Zurich. His specialty is cardiac surgery. He has been practising for 27 years. He has worked as a general surgeon, especially as a trauma surgeon up to the age of 32 years when he switched to cardiac surgery but he was still involved with the trauma patients as a consultant. He has had numerous articles published in respected medical journals on trauma, chest trauma, cardiac or vascular trauma.
He assessed the plaintiff in Switzerland in 2008. He had previously provided two written reports dated 17 December 2006 and 22 October 2007 based on documents provided by the plaintiff's solicitors. His reports are extremely detailed and well supported by references to documented studies and research.
Although Professor Pretre recognised the clear contribution of the accident to the evolution of the plaintiff's condition, he acknowledged that the plaintiff's "heart presented increased susceptibility to arrhythmic decompensation and that an MVA of the same magnitude to another person would not have initiated the domino cause leading to his debilitating symptoms".
However, he said that the plaintiff presents none of the identified risk factors for degeneration (increased age, significant aortic valve stenosis, mitral valve regurgitation, left atria enlargement or cardiomyopathy) and even presents a tachycardic response during paroxysmal fibrillation.
Professor Pretre referred to a "Canadian study" published in 2005 which evaluated the risk of degeneration of paroxysmal AF to permanent AF.
Professor Pretre said that based on the results of the Canadian study, he evaluated the risk of the plaintiff AF progressing to permanent AF without the intervention of the accident at around 15 per cent at five years, 25 per cent at 10 years, 35 per cent at 15 years and 50 per cent at 20 years from the date of diagnosis.

Dr Langton

Dr John Langton is a cardiologist who was engaged by the defendant to comment on various reports. He reviewed the hospital notes, opinions by Professor Pretre, Drs Hocking, Weerasooriya, Ozanne, Bremner and Bateman and provided a medico‑legal report dated 10 January 2008. He did not examine or speak to the plaintiff.
Despite Dr Langton doubting that the accident caused the AF on admission to hospital, that issue is no longer in dispute.
Dr Langton was of the view that although painful or stressful stimuli often bring on episodes of AF, this is not a recognised risk factor in causing a greater degree of fibrillation in the future. He noted the Canadian study referred to by Professor Pretre, but stated:
"One of the greatest predictors of recurrent fibrillation is the frequency of existing paroxysms of fibrillation. [The plaintiff's] episodes were largely asymptomatic prior to the accident but may well have been frequent. In this case the risk of progressive atrial fibrillation (i.e. increasingly frequent paroxysms or persistent fibrillation) is likely to have been substantial, in the order of ‑70%."
Dr Langton stated that on balance, "there would be at least a 50 per cent chance that [the plaintiff's] atrial fibrillation would have recurred and would have precluded him from working without the advent of the accident".
It would seem that there is a variety of factors, some of which are unknown, which might influence the progression of the plaintiff's mild form of AF to permanent AF. There can be no accurate, mathematical or statistical prognosis on the issue.
There is a dispute between the medical opinions as to the likelihood of the plaintiff progressing to permanent or persistent AF even without the intervention of the accident. On balance, I accept the results of the Canadian study, which were not disputed by the defendant, rather than Dr Langton's opinion which is unsupported by empirical evidence.

Did the accident cause an increased incidence and severity in AF?

There is no objective medical test which shows an increase in the incidence of AF after the accident. However, the plaintiff noted increased symptoms of AF and increased severity of symptoms after the accident. Largely based on the subjective symptoms reported by the plaintiff, Dr Hockings diagnosed increased episodes of AF. However, the AF symptoms resolved after the second ablation, and as far as the plaintiff was concerned he no longer had AF. Holter Monitoring on 12 February 2008 (21 hours of monitoring with reported irregular heartbeat which correlated with sinus rhythm) and 15 July 2008 (seven days monitoring with no reported symptoms and no reported abnormality) did not reveal AF.
Professor Pretre said that after the accident the rate of occurrence and the duration of the episodes had "definitely worsened" requiring ablation. He said the dramatic worsening of the AF "has been clearly caused by the chest injury. By inducing the very long episode and probably by increasing the rate of episodes, it has increased the susceptibility of the atrium to other triggers or to previously subliminal triggers … The chronological evolution of the [plaintiff's] atrial fibrillation points to the accident as the initiator of the vicious circle that ultimately led to the need for an aggressive handling in the hope of stopping the galloping evolution".
He said that the accident triggered the initial decompensation which, with a domino effect, led to further deterioration in the plaintiff's condition.
Dr Weerasooriya reported on 14 September 2004 that:
"There is a clear temporal relationship between the worsening of atria fibrillation and the accident. Although there is no data in the literature to firmly support a severe crush injury worsening atria fibrillation the history is clear and I believe that it is reasonable to propose that the accident did aggravate the atrial fibrillation."
In my view, it is more probable than not that the accident caused an increase in the incidence and severity of AF which resolved after the second ablation in January 2004.

Did the accident increase the risk of the plaintiff progressing to persistent AF?

It is accepted that the second ablation "cured" the AF. It is accepted that the accident caused the acute episode of AF in the hospital. This is in accordance with the weight of the medical opinion.
Although the plaintiff reported an increased awareness of palpitations after the accident, there is no objective evidence that the AF had returned. The Holter Monitoring on 12 February 2008 and 15 July 2008 did not reveal AF, although the plaintiff reported symptoms during the monitoring on 12 February 2008.
The issue of whether the accident increased the plaintiff's risk of recurrent or persistent or permanent AF is to some extent academic as it is accepted that if his AF increased to those levels, he would have undergone ablation and been cured in any event.
However, for the sake of completeness, I examine the medical opinions on the issue of increased risk of persistent AF after the accident.

Dr Weerasooriya

Dr Weerasooriya testified that AF begets AF and can lead to remodelling of the heart. His view is that after a person develops the first episode of AF and even if the person is treated with medication it is highly likely that it will get worse. The AF may progress to the point where the person will consider an ablation. He said that even asymptomatic episodes of AF will cause remodelling of the heart. He explained remodelling as the heart having a "muscle memory" of the arrhythmia so that the episodes of AF become longer and the time between episodes become shorter. He said generally speaking, the symptoms do not change over time. If a person does not take Sotalol, it would increase the chances of remodelling.
When asked that effect the accident had on the condition as a whole, Dr Weerasooriya said:
"This is a difficult one for me to answer because as a scientist and researcher interested in this field I cannot see how six weeks after, once one has recovered from this, that you would have so much remodelling from that one episode that you've now suddenly become a lot worse ... I've never seen another patient…. who's had a motor vehicle accident or this scenario. So I just guess ‑ it's a little bit of a mystery and of interest to me how this particular remodelling seemed to occur. But I think it's ‑ it's a long bow to draw to blame the accident on the longer term progress and on the ... decision to have the pulmonary vein ablation. Because to my mind the decision to have the pulmonary vein ablation was based on symptoms purely, so it's a separate issue."
As to the ordinary course of the plaintiff's AF, Dr Weerasooriya said he could not comment on an individual case as "the process" of AF is unpredictable. Overall he was unable to comment on whether the plaintiff's heart would be subject to remodelling, and if so, over what period of time.
Dr Weerasooriya testified that 90 per cent of patients who have undergone ablation have not had a recurrence within five years. He said that ablation does not treat underlying causes for worsening AF such as sleep apnoea or hypertension. As I understand his evidence, the results are preliminary given that the ablation procedure is "relatively new".

Professor Pretre

Professor Pretre noted that the plaintiff suffers no valve disease, has a normal heart function and no myocardial ischaemic disease. The left atrium has been described as slightly enlarged in echocardiography (which he considered to be about normal considering the patient size), and two recent CTs described the left atrium as normal.
Professor Pretre reported that the natural evolution of AF is dependent on many factors, all of which are not entirely known.
He said that where there is no ongoing underlying process (for example, a valvular disease or uncontrolled high blood pressure), the condition can remain extremely stable up to 10 years.
The size of the left atrium, the frequency of the AF and the quality of the atrioventricular system are crucial factors determining the long-term prognosis of AF. As long as the left atrium remains within normal size, any fibrillation episode is likely to terminate itself spontaneously. However, if the left atrium increased in size, fibrillation would no longer terminate and even with the help of stabilising drugs the patient would end up in persistent/permanent AF.
Professor Pretre said that in the plaintiff's case there is no reason to believe that the size of his left atrium would increase.
Professor Pretre said an episode of AF tends to promote the next one. Professor Pretre said that if the frequency of AF episodes is low, the situation is stable and it can remain so over an extremely long period of time.
However, if the frequency of AF suddenly increases, the promotion of the next episode is such that the frequency augments not in a linear but in an exponential fashion and, rapidly, a situation degenerates into an uncontrollable one.
The health of the atrioventricular node has an important part for rhythm prognosis. There is nothing in the plaintiff's presentation to indicate that his atrioventricular node was otherwise than healthy.
Relevant factors include the plaintiff's increased susceptibility to arrhythmic decompensation and that an accident of the same magnitude to another person would not have initiated the domino cause leading to the plaintiff's symptoms.
On the other hand, the plaintiff presented with none of the identified risk factors for degeneration.
Given the condition of the plaintiff's heart and lack of identified risk factors for degeneration described by Professor Pretre, I am unable to be satisfied that it is more probable than not that the accident increased the risk of the plaintiff progressing to persistent AF.

The heart condition: summary of findings

Accordingly, for the purpose of assessing damages, I find that:
•Even without the intervention of the accident, there was a risk (assessed in the Canadian study) of permanent AF;
•The accident caused the acute episode of AF and continuing episodes of AF;
•The second ablation in January 2004 cured the AF;
•The accident did not increase the risk of the plaintiff's AF progressing to permanent AF.

The plaintiff's psychological condition

The primary question if whether the accident caused the psychological condition.
The plaintiff's case is that he had experienced a very traumatic event in 2003. Thereafter he had eight months of distressing AF which was caused by the accident. He had fractured ribs which healed after six to eight weeks or so. He had associated upper abdominal bruising. He had some reduced chest wall compliance as a result of the broken ribs. It was against that background that the psychological condition developed. The plaintiff's counsel submits that the psychological symptoms were "unmasked" after the successful second ablation in January 2004.
At the end of the trial the defendant's position is that it is not disputed that the plaintiff suffers from a stress related psychological condition but the diagnosis is disputed and the defendant asserts that the condition was not caused by the accident.
The diagnosis of chronic adjustment disorder is dependent on proof of the plaintiff's symptoms as related to the psychiatrists and the application of the diagnostic criteria in the DSM‑IV.
Professor Pretre considered the plaintiff's complaint of chest pain was triggered by emotion and stress. Overall, he was unable to attribute any physiological cause for this connected with cardiac issues.
He considered that given that the plaintiff might suffer from a psychological problem and recommended psychological assessment.
Until Professor Pretre suggested a psychological assessment, none of the other medical professionals gave any real thought to that option. By 2008 the plaintiff's action against the defendant had progressed significantly.
I have referred to the course of the litigation above.
I examine the psychiatric evidence in more detail below, which sets out the reported symptoms on which the psychologists made the diagnosis.

Dr Frederick Ng

Following the suggestion of Professor Pretre, the plaintiff's solicitors arranged for him to undergo a medico‑legal psychiatric assessment.
Dr Frederick Ng, consultant psychiatrist, assessed the plaintiff on 19 June 2008.
The history of symptoms the plaintiff provided to Dr Ng is as follows.
He told Dr Ng he became stressed following the accident with tightness in his chest and throat and pain in his throat and lower jaw under stress.
These symptoms could last between 30 minutes and two hours.
Associated with those symptoms were increased perspiration, the need to pant, increased heart rate, and feelings of anxiousness in the context of those episodes.
Following the accident these episodes occurred every second day. Following the second ablation procedure, the AF symptoms settled. However, the plaintiff reported that the chest tightening and associated symptoms continued happening when he felt stressed.
The plaintiff told Dr Ng that in the last 18 months [before the consultation] his stress levels had increased because of financial difficulties. He became more easily irritable, felt not in control of his life, his moods also fluctuated, and that he started feeling depressed about four years previously when he could no longer fly.
The plaintiff told Dr Ng that at the time of consultation, he was experiencing the following symptoms: sleep disturbances, waking up about 20 to 30 times; nightmares every second night; moderately irritable and grumpy and more easily angered; less robust moods; decreased concentration and general confidence; forgetfulness; low libido; moderate diminishment of his general motivation and drive; jumping at sudden loud noises; moderate diminishment of his energy levels; and somewhat socially withdrawn.
Dr Ng was of the view that the plaintiff suffered from pathological anxiety and depressive symptoms. He identified the symptoms as anxiety/panic attacks although he was unable to rule out a cardiac association which was outside his area of expertise.
Dr Ng noted that the plaintiff suffers from anticipatory anxiety about having further panic attacks.
He considered that the plaintiff's work capacity as an airline pilot is compromised given the potential of having a panic attack in emergency situations.
Dr Ng also considered the plaintiff to be unfit for any work that would cause him sufficient stress to induce the described symptoms. He considered the plaintiff was only able to work in a partial capacity in work which is minimally stressful until the episodes are resolved or improved.
Dr Ng considered that if the episodes remain for the foreseeable future, the plaintiff will have permanent psychiatric difficulties and a permanent inability to work for the foreseeable future.
Dr Ng considered that it was more likely than not that the plaintiff did have pre‑existing stress related problems given the direction of his career leading up to him stopping work. Dr Ng considered that the physical effects of the accident and the consequential concerns about the cardiac situation would have been sufficient to exacerbate any pre‑existing psychological stress. That opinion might hold true if there were evidence of pre‑existing stress, but there is not.
Dr Ng was unable to be certain if the plaintiff had any of the anxiety/panic episodes before the accident.
Under cross‑examination, Dr Ng agreed that the plaintiff experienced stress factors such as an inability to fly, financial concerns, medico‑legal concerns and uncertainty for the future.
However, although believing that the plaintiff experienced stress before the accident, Dr Ng believed that he was coping with it and that he had not been diagnosed with any history concerning his mental health. Further, he described the plaintiff's pre‑morbid personality as assertive, goal‑oriented, organised, self‑confident, focused, social, slow to anger, not a "worrier" and having a sense of self‑worth. Thus, in Dr Ng's opinion, the plaintiff had not decompensated because of stress before 2003.
The pre-accident stress referred to by Dr Ng appears to be an assumption which is unsupported by the evidence. The plaintiff does not acknowledge he had pre-existing stress. Indeed his own assessment of his personality and the way he approached life and his job is inconsistent with him suffering pre‑existing stress. There is only brief and equivocal mention in the medical notes of possible stress related angina in 1996 and certainly no firm diagnosis.
Ultimately, Dr Ng diagnosed the plaintiff as having a chronic adjustment disorder with mixed anxiety and a depressed mood, by applying the diagnostic criteria in the DSM‑IV‑TR. The relevant extract from the DSM‑IV is attached to this judgment (Annexure A).
Under cross‑examination about the specific criteria applicable to the DSM diagnosis, Dr Ng said that due to the passage of time it was not possible for him to ascertain whether the required symptoms for a diagnosis existed within two or three months of the accident. He agreed that there was an unclear chronology of the onset of specific symptoms. He said that it is impossible to chronologically and specifically identify which symptom occurred at what particular time.
Dr Ng said he made the DSM diagnosis because the symptoms the plaintiff described he experienced after the accident were over and above what he experienced before the accident. Hence in his opinion, the plaintiff developed pathological anxiety symptoms and functional impairment following the accident.
He said that if the pathological anxiety symptoms came on many months after the accident, then there will be a problem in tying the two together. He agreed the later the onset of the symptoms, the more difficult it was to attribute them to the accident.
Dr Ng said that panic attacks are usually associated with a psychiatric condition but can be brought on by a physical condition.
He believed that the accident was the "straw which broke the camel's back". However, there is no reliable evidence to support a view that the plaintiff experienced stress before the accident. I reject Dr Ng's opinion that the accident exacerbated pre‑existing stress given that there is no evidence that the plaintiff did in fact have pre‑existing stress and the opinion of Dr Ng that he did is pure speculation.
Dr Ng recommended that the plaintiff would benefit from psychotherapy from a consultant psychiatrist or a clinical psychologist.
He noted that the plaintiff was taking the antidepressant Dothep in a small dose of 25 milligrams per night mainly for sleep and recommended optimising the current antidepressant treatment by putting him on a newer generation SSRI antidepressant.

Dr Lawrence Blumberg

Dr Blumberg is a consultant psychiatrist.
He has seen the plaintiff roughly on a monthly basis from 3 July 2008 to 9 April 2009 on referral by Dr Ozanne.
He described the plaintiff's reported symptoms in his four written reports dated 7 September 2008, 1 August 2008, 4 July 2008 and 8 April 2009 and in his evidence.
According to Dr Blumberg, the plaintiff reported experiencing ongoing anxiety and panic symptoms since the accident. These included nightmares; disrupted sleep pattern; a fluctuating appetite; poor energy levels; decreased libido; decrease in enjoyment of pleasurable activities; social withdrawal; hypervigilence; and feelings of irritability, frustration, hopelessness and helplessness.
The plaintiff also described physical symptoms of tightness in his throat associated with excessive perspiration, increased heart rate, chest pain and shortness of breath.
The plaintiff reported that these symptoms would occur out of the blue or after he felt stressed. At times they could last up to between 30 minutes and two hours.
The reported symptoms included "anticipatory anxiety" about having further panic attacks in stressful environments.
The plaintiff reported to Dr Blumberg that although the symptoms of AF almost disappeared after the second ablation on 17 January 2004, he continued to experience episodes of shortness of breath and what he described as "angina‑like" chest pain symptoms which were exacerbated when he was under stress. The plaintiff himself was unsure if these symptoms were cardiac related or psychologically related symptoms.
The plaintiff also described himself as a "worrier". He was worried about his finances, losing his assets, his future, the welfare of his family and the inability to be able to fly in the future.
The plaintiff told Dr Blumberg that before the accident he was focused, organised and confident. He had no history of psychiatric or psychological intervention.
Dr Blumberg's initial diagnosis was that the plaintiff had a chronic adjustment disorder with anxiety and depressed mood. He also applied the criteria in the DSM‑IV.
Dr Blumberg was of the view that the plaintiff should consult a psychologist for cognitive behavioural therapy in addition to appropriate medication.
Initially he prescribed the antidepressant Efexor XR at 75 milligrams daily. He monitored the medication and gradually increased it to 450 milligrams daily on 22 December 2008 due to a decompensation in the plaintiff's medical state. When Dr Blumberg last saw the plaintiff on 9 April 2009, the plaintiff was taking 450 milligrams of Efexor XR daily and 50 milligrams of Dothep to address sleeping disorders.
Dr Blumberg conceded that it is difficult on occasions to distinguish between cardiac related symptoms and panic symptoms. However, in the plaintiff's case, once the AF had been alleviated by the second ablation, the fact that the plaintiff "continued" to experience the "angina‑like" symptoms, indicated that they were panic symptoms.
In his latest report dated 8 April 2009, Dr Blumberg reported the plaintiff's mood was more settled and he felt improved. He still experienced difficulty sleeping, although the Endep had helped address his initial insomnia but his sleep pattern was still disrupted at times. His energy levels were stable but he still experienced a decreased libido. The plaintiff reported that his concentration was not as good as it used to be and he was sometimes forgetful.

He still experienced anxiety symptoms and panic attacks associated with chest pain, palpations and shortness of breath.
The plaintiff was still concerned about his "chest wall compliance and underlying cardiac status". He also experienced dizziness which Dr Blumberg considered was a possible adverse side effect from the combination of his antidepressant medications.
Dr Blumberg is now of the view that the plaintiff's depressive symptoms have improved on his antidepressant medication and with cognitive behavioural therapy but his anxiety symptoms and unpredictable panic attacks continue.
In Dr Blumberg's view, the accident was the main precipitating factor for the anxiety symptoms and panic attacks. The delay in diagnosing the psychiatric condition had an effect on the plaintiff's mental state in that he continued to experience panic symptoms and panic attacks whilst under the [mistaken] impression that these symptoms were cardiac symptoms from the AF. Dr Blumberg's view is that the plaintiff will not be able to engage in any work that involves significant stress as this is a trigger for future panic attacks. His depressive symptomology is perpetuated by his inability to work as a pilot.
Under cross-examination, Dr Blumberg agreed that the plaintiff's day‑to‑day functioning was "quite good", that he is not incapacitated by the chronic adjustment disorder but that he still experiences panic symptoms.
Dr Blumberg conceded that the litigation which has preoccupied him for a number of years is a significant stressor. He agreed that the chronic adjustment disorder is meant to lift if the stressor is removed and if that happens within a three-month period the adjustment disorder would be acute. However, in some cases it becomes a chronic condition.
He also agreed that there are a number of stressors which could operate to cause chronic adjustment disorder and he could not be sure of the specific contribution of each stressor but was adamant that the catalyst was the motor vehicle accident which had a domino effect.
He could not be sure when the first panic attack occurred because of the overlap between AF symptoms and panic attack symptoms.
Under cross-examination, Dr Blumberg said that the plaintiff is not fit to fly because he needs to be off his antidepressant medication and to be free of panic attacks. He testified that the plaintiff reported that he was still having panic attacks one or two times a week both spontaneously and related to stress, which included the legal process. In effect he agreed that resolution of the litigation would remove a major stressor from the plaintiff's life.
Dr Blumberg testified that the symptoms of panic attacks would continue indefinitely because they are unpredictable. In the plaintiff's case he still has panic attacks despite medication and cognitive behavioural therapy. It may be possible to consider another antidepressant medication regime but this must be approached with caution. He could not say that the panic attacks will ever go away. The main stressor in the plaintiff's life at present is the unexpected panic attacks.
In Dr Blumberg's opinion, the plaintiff needs to continue with regular psychiatric treatment and follow‑up for his condition and his mental state will need to be reviewed on a monthly basis. Dr Blumberg's view was that the cognitive behavioural therapy should continue on a four to six weekly basis to help deal with the ongoing anxiety symptoms and panic attacks.
Dr Blumberg's opinion is that the plaintiff will continue to experience psychiatric symptoms despite pharmacological and psychological treatments in the foreseeable future. He based that opinion on the fact that it is now around six years since the accident and the plaintiff is still experiencing the symptoms which started since the accident.
Dr Blumberg said the plaintiff will need to continue with his psychotropic medications in the long term to prevent any further decompensation in his mental state.
He said that the plaintiff's psychiatric condition is likely to be permanent in the sense that he possibly will continue to experience further panic attacks which could occur spontaneously or when under stress and that there is a risk of future panic attacks despite being appropriately medicated.
The plaintiff testified that on receipt of the psychiatric diagnosis, he did not want to believe it as he had always been determined, strong‑minded with a sharp mind. He readily agreed to a treatment regime of medication, consultations with Dr Blumberg and cognitive behavioural therapy with Mr Wygill. Dr Blumberg described the plaintiff as a "model patient".
The plaintiff said that he profited a lot from Mr Wygill's treatment. He was able to recognise triggers for his anxiety and learned mechanisms to deal with it such as deep breathing.

Other evidence of the plaintiff's symptoms

It is clear that the identification and application of the criteria in the DSM was critical to the particular diagnosis made by the psychiatrists.
I have already outlined the plaintiff's evidence about his symptoms.
It is necessary to examine other evidence relating to the plaintiff's symptoms.

Dr Ozanne

As far as I can make out, according to Dr Ozanne's notes of consultation with the plaintiff which took place after the accident, he saw the plaintiff over 60 times as well as monitoring various medical tests and reviews from other doctors which he documented in his notes.
Although Dr Ozanne notes symptoms relating to back pain and other ailments, obviously unconnected with the accident, there is no specific note at all of the plaintiff experiencing nightmares, fluctuating appetite, decreased libido, diminishment in pleasurable activities, social withdrawal, tightness in the chest, shortness of breath, angina‑like symptoms, anticipatory anxiety, fluctuating moods or lack of confidence and concentration.
However, Dr Wright, a doctor practising from the same practice as Dr Ozanne, referred the plaintiff to Dr Bremner for investigation of his dyspnoea in May 2005. I infer that the plaintiff complained of dyspnoea to warrant the referral.
The first mention in Dr Ozanne's notes of anything resembling any psychological symptoms is on 7 December 2004 when the plaintiff consulted Dr Ozanne for dermatitis and Dr Ozanne's notes reads: "Multiple stresses incl retirement issues". On 10 December 2004, Dr Ozanne notes "Lethargy. Discussed exercise to reduce body fat to reduce insulin resistance". The next relevant note was made at the consultation on 7 December 2006 as follows: "Tired & a little bit cranky", with the diagnosis recorded as "Feeling; tired". On 17 April 2007 the notes read:
"Waking up 10 times/night with pins & needles in both upper limbs> Intermittent dizzy spells and headache every day from midday onwards irrespective of when he eats lunch."
Dr Ozanne prescribed Endep.
On 13 March 2008, Dr Ozanne's notes read:
"Anxious+++/insomnia re pending court case. Endep>2 nights ànightmares. Try dose dothiepin/nortrypliline."
Under cross‑examination, Dr Ozanne said that there are recognised symptoms of anxiety as a medical condition, and that general practitioners are able to discern them.
Dr Ozanne said that before the accident, the plaintiff did not exhibit any signs of anxiety over and above the normal concern about his back and heart.
Leading up to the back operation in August 2003, Dr Ozanne said that he considered any signs of anxiety to be within "normal limits".
I refer to an email from the plaintiff to Dr Ozanne dated 6 June 2007. In that, the plaintiff reports on the success of Endep to help him sleep. Far from complaining of any irritability, social withdrawal or lack of energy, he wrote:
"… I sleep better and wake up more refreshed and ready for a full day. My arms still go stiff during the night, but the pins and needles sensation is gone and therefore doesn’t awaken me constantly. Haven't needed an afternoon nap in weeks and best of all, Esther [wife] thinks I am more bearable (I took this as a complement (sic)) ... Feel like an idiot thinking it might have been my heart."
It is not suggested that the stiff arms and pins and needles sensation were part of the psychological condition.

Dr Weerasooriya

Dr Weerasooriya said that "interestingly" the plaintiff complained of lethargy, low libido, depression and feeling like an old man after ablation and not before. He said that also most immediately after the second ablation the plaintiff reported shortness of breath, as do the majority of patients, but it wasn't a "major component".
On 15 March 2004, the plaintiff told Dr Weerasooriya that he had shortness of breath on exertion.
Dr Weerasooriya thought there might be pulmonary vein stenosis. On investigation, although the plaintiff had said that the shortness of breath was associated with palpitations, there was no abnormal rhythm. Dr Weerasooriya excluded AF and pulmonary vein stenosis as a cause of the plaintiff's reported symptoms.
Dr Weerasooriya said that the plaintiff did not manifest any signs of anxiety. Dr Weerasooriya said that he has seen lots of patients with a history of panic attacks. He did not consider that the shortness of breath was a panic attack. He thought that the symptoms might be related to the impending court case.
Although Dr Weerasooriya said that [in hindsight] the symptoms the plaintiff complained of before the second ablation were consistent with a panic attack, he observed that the plaintiff also had abnormal heart rhythm. It is not clear from the evidence which symptoms Dr Weerasooriya was referring to.
Dr Weerasooriya said the plaintiff did not complain of chest pain extending up to his jaw until after the second ablation. In my view, if this symptom was present before the second ablation, I would expect the plaintiff to mention it as it clearly had potential cardiac implications.
Dr Weerasooriya testified that he was concerned about this reported symptom but not enough to report it to Dr Hockings as a possible anxiety disorder.

Dr Hockings

The plaintiff told Dr Hockings on 25 November 2003 that he was feeling well but that he was having a few episodes of palpitations but nothing like the problems he was having before the ablations. On 24 April 2004 the plaintiff told Dr Hockings that he had chest and throat discomfort with emotional stress.
Dr Hockings wrote to Dr Ozanne that on 17 May 2004, the plaintiff said that he was aware of chest and throat discomfort with emotional stress. This would come on within seconds and last five to 10 minutes. (I note that the plaintiff told the psychiatrists that the symptoms lasted between 30 minutes and two hours). Sometimes with physical exertion he would develop chest discomfort which started low down and spread upwards, but did NOT reach his jaw and shoulder (my emphasis). Dr Hockings wrote to Dr Ozanne that "John is fairly happy with his medical situation …".
According to Dr Hockings, the plaintiff complained of shortness of breath on exertion which seems to be consistent with the results of the stress test and Dr Bremner's opinion.

Mount Hospital admission document

The plaintiff completed a questionnaire for admission to the Mount Hospital for back surgery on 5 August 2003. He answered "no" to the questions whether he had any shortness of breath or "any lung, chest or breathing problems".

Dr Bremner

On 24 April 2004 Dr Hockings arranged a stress test which he reported was "satisfactory although [the plaintiff] did become short of breath with increasing activity".
On 29 June 2004 Dr Junga examined the plaintiff in Switzerland. Dr Junga reported that "during ergometry" the plaintiff only reached "a capacity" of 75 per cent compared with 79 per cent in July 2002. Dr Junga noted that the plaintiff complained of shortness of breath and stress induced angina pectoris.
On 5 May 2005, the plaintiff reported to Dr Bremner that he had shortness of breath since the accident which became more noticeable after the second ablation. Dr Bremner noted that the plaintiff "remains reasonably active and independent".
As outlined above, Dr Bremner considered that the shortness of breath was due to physical deconditioning with some contribution of reduced chest wall compliance due to the broken ribs.
The medical professionals, both the cardiologists and the respiratory physician, investigated causes of the symptoms in the context of their own particular specialities. These medical professionals were unable to identify a physical cause for the symptoms. It would seem that none turned his mind to a psychological cause until Professor Pretre raised the prospect in 2008. Dr Hockings alluded to a possibility of a psychological cause but this was not explored with him and it is very clear from his evidence and the evidence of Dr Weerasooriya that they were focused on investigating cardiological causes for the ongoing symptoms. Dr Weerasooriya thought the symptoms reported after the second ablation might be related to the impending court case.

Psychological condition: findings

The diagnosis

Two psychiatrists diagnosed the plaintiff with chronic adjustment disorder. Assuming that the plaintiff experienced the symptoms he reported to the psychiatrists shortly after and since the accident; the exclusion of physiological causes; and the identification and application of the criteria in the DSM‑IV I could not doubt the diagnosis.
The history given by the plaintiff to Drs Ng and Blumberg must be considered with caution. I accept that it may be a difficult task to give a consistent, accurate and chronological history of a variety of symptoms over a period of five years especially given the other medical conditions which preoccupied the plaintiff during that time. This makes the temporal link between the reported symptoms and the accident potentially very tenuous. It becomes even more tenuous when symptoms reported to other doctors do not match those reported to the psychiatrists. There is no evidence of independent observation of a panic attack notwithstanding the plaintiff's evidence that he experienced panic daily before treatment.
In my view, the specific diagnosis is not supported by reliable evidence as to the criteria required for diagnosis of a chronic adjustment disorder. Notwithstanding that Dr Ng said the criteria are vague, nonetheless those criteria are required before the diagnosis can be made.
The DSM‑IV requires the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
There is an imprecise account of the onset of the symptoms the plaintiff reported to the psychiatrists. The psychiatrists acknowledge that any one of a number of stressors could account for the development of the symptoms.
The evidence does not establish the required temporal link between the stressor (said to be the accident) and the symptoms. The temporal link is important for an accurate diagnosis. Dr Ng said that the longer the period between the onset of symptoms the more difficult it is to link them to the diagnosis.
The plaintiff's account of the symptoms reported to the psychiatrists is largely unsupported by documented evidence of his reported symptoms in the medical notes of other doctors who treated him since the accident. This causes me to have serious doubts that the plaintiff did report the symptoms to those doctors, as I would expect him to do, given that there were extensive investigations after the second ablation to ascertain why he was still having heart symptoms and given that the plaintiff testified that before treatment, he was experiencing panic attacks daily.
Given the evidence of the plaintiff's treating doctors of the symptoms he reported to them, I have grave doubts that those symptoms reported to the psychiatrists commenced shortly after the accident.
The DSM also requires that:
"These symptoms or behaviours are clinically significant as evidenced by either of the following:
1.Marked distress that is in excess of what would be expected from exposure to the stressor.
2.Significant impairment in social or occupational (academic) functioning."
Dr Blumberg testified that the plaintiff's day‑to‑day functioning was "quite good", that he is not incapacitated by the chronic adjustment disorder but that he still experiences panic symptoms. This opinion seems somewhat inconsistent. It does not suggest that there is "significant impairment in social or occupational (academic) functioning".
Dr Ozanne did not notice and made no note of any anxiety symptoms after the accident except as I have outlined above. I would expect that given his understanding of anxiety as a medical condition, the number of times he saw the plaintiff and the symptoms the plaintiff claims he was experiencing from the date of the accident, that if the plaintiff had complained of any of the claimed psychological symptoms, Dr Ozanne would have made a note of them. I therefore infer that the plaintiff made no such complaint notwithstanding, on his account, he was suffering daily from panic attacks with quite marked symptoms.
Dr Weerasooriya had treated "lots" of patients with a history of panic attacks. According to him the plaintiff did not exhibit signs of anxiety over and above what he would expect for a person in his position.
Dr Bremner's view is that the shortness of breath is due to physical deconditioning with some contribution from diminished chest wall compliance. I have already referred to the plaintiff's reports of breathlessness on exertion. This does not appear to have been considered by the psychiatrists.
Again this evidence does not support the plaintiff's evidence that he was experiencing daily panic attacks before and after the ablations.
Apart from that observation, I make the following comments on the plaintiff's credibility.
The plaintiff said that before the accident he did not have the symptoms he described when he first saw Dr Weerasooriya. However, before the accident, the evidence contains reports of fatigue requiring him to stop physical activity and to rest being the main symptom with the pre‑existing AF and Dr Reif's reference to him experiencing "warmer temperatures" during AF.
The plaintiff testified about episodes which he described as "panic attacks" or "anxiety attacks". He did not so categorise or describe those claimed episodes to any treating or reviewing doctor before the psychiatric diagnosis. Having been diagnosed with those conditions, he has clearly categorised his post‑accident symptoms as such attacks.
The answers the plaintiff recorded on the Mount Hospital Admission document concerning shortness of breath and breathing difficulties are inconsistent with his evidence of, in effect, chronic shortness of breath. The plaintiff's reports of shortness of breath on exertion and the opinion of Dr Bremner, based on exercise tests, that the shortness of breath was due to deconditioning are also inconsistent with the chronic shortness of breath which the plaintiff claims to have suffered on a daily basis before the psychiatric treatment.
In my view, the plaintiff has reconstructed his account of the symptoms in the course of his psychiatric assessments. I am not satisfied that his account to the psychiatrists concerning the time frame of the symptoms is reliable.
As I understand the psychiatric opinions, it is the combination of the reported symptoms being present within three months of the accident which forms the basis for the diagnosis of chronic adjustment disorder.
Dr Ng conceded in cross examination that it was not possible for him to ascertain whether the required symptoms for diagnosis existed within three months of the accident.
I am not satisfied that it is more probable than not that the plaintiff suffered the symptoms he reported to the psychiatrist shortly after and since the accident as a continuing set of symptoms which had their onset within three months of the accident.

Further, the DSM‑IV provides that "[O]nce the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months". The psychiatrists say that the relevant stressor was the accident. The consequences of the accident (that is, the AF, the fractured ribs, the bruising) resolved at the latest by the second ablation notwithstanding as far as the plaintiff was concerned, he still had a heart problem. However, I do not place much weight on this point as it was not explored in evidence and it is not clear what "consequences" the DSM‑IV is referring to.
I therefore reject the diagnosis of chronic adjustment disorder based on the criteria outlined in the DSM‑IV.

Did the accident cause the psychological condition?

Even assuming that the plaintiff experienced his reported symptoms, I have grave doubts they were caused by the accident. In reaching that view, I take into account the following factors.
The plaintiff has no history of psychological or psychiatric symptoms, conditions or treatment before the accident.
The plaintiff was a competent, capable, clear thinking and work focused person before the accident.
The plaintiff's evidence generally reveals a continuous history of symptoms, consistent with the disorder since the accident although some symptoms were also consistent with AF. However, the AF was "cured" by the second ablation and yet the symptoms persevered.
Despite extensive investigations and review by highly qualified medical specialists, none (apart from Professor Pretre) considered a psychological cause for the ongoing symptoms. This may account for the delay in diagnosis.
Medication and psychiatric and psychological treatment since diagnosis has been of some benefit to the plaintiff.
The psychiatrists' views are that the accident was the main precipitating factor for the anxiety symptoms and panic attacks. (I observe that this is of minor weight as that is the ultimate issue for determination by the Court).
Dr Blumberg said that the delay in diagnosing the psychiatric condition had an effect on the plaintiff's mental state in that he continued to experience panic symptoms and attacks whilst under the [mistaken] impression that these symptoms were cardiac symptoms from the AF.
Some symptoms predated the accident (e.g. fatigue which was associated with AF). The evidence points to the shortness of breath occurring on exertion. Dr Bremner's opinion, based on physical testing, is that the principal cause for the shortness of breath was physical deconditioning, albeit that lack of chest wall compliance due to the fractured ribs may have contributed. Dr Ng accepted that any one or more of a number of different stressors could have caused the plaintiff's symptoms of anxiety and depressed mood.
Dr Ng notes the plaintiff's robust personality before the accident. Yet he said that the plaintiff suffered from pre-existing stress (about which there is scant, equivocal and undeniable evidence) and asserts that the accident and consequential concerns about the cardiac condition were sufficient to exacerbate pre‑existing stress. In my view, Dr Ng has speculated that the plaintiff had pre‑existing stress. He assumed that it was likely given the direction of the plaintiff's career leading up to him stopping work. He does not outline the basis for his view.
The plaintiff was experiencing a number of stressors and pain not associated with the accident. The plaintiff had a pre‑existing back condition which Dr Ozanne considered (together with the pre-existing AF) sufficient to incapacitate him from working. The plaintiff suffered disabling pain from the back condition and ultimately had surgery. The surgery was painful. The evidence is that the plaintiff was still being evaluated for treatment of the pain and receiving treatment for the pain as late as August 2004. Further, surgery was under consideration up until September 2004. The plaintiff was still experiencing back pain as at 30 November 2004. Despite the plaintiff's evidence that his back "came good very quickly", the objective evidence points to the back pain, surgery, the after effects of the surgery and inevitable concern about the potential disabling effects of the back condition constituting significant stress for the plaintiff.
Despite being assessed by numerous highly qualified specialists over a period of years, no‑one documented symptoms associated with panic attacks as reflected by the plaintiff's report of his symptoms reported to the psychiatrists.
The specialists naturally concentrated on symptoms which might be relevant to the focus of their speciality. However, they are highly trained. If the plaintiff was experiencing the miscellany of distressing symptoms over a period of five years which he reported to the psychiatrists, I consider it extremely unlikely that he would not have mentioned them to one or more of the specialists and/or his general practitioner.
I also consider it unlikely that the specialists and Dr Ozanne would not have at least considered the issue of a psychological cause if there had been sufficient basis for it in the plaintiff's presentation to them. The effect of the testimony of all doctors questioned about the issue, was the plaintiff was not exhibiting anxiety symptoms consistent with a condition which required psychological intervention.
The absence of complaints to the treating doctors about the debilitating and distressing symptoms as described to the psychiatrists, the delay in diagnosis and the quality of the evidence relied on by the psychiatrists to make the specific diagnosis which caused me to reject the diagnosis, create an insurmountable doubt in my mind that the accident was a material cause of the psychological condition.
Further, for the reasons outlined above, I am not satisfied notwithstanding the intervention of the back condition and sequelae, that the defendant's negligence is, as a matter of common sense and experience, properly to be seen as having caused the psychological condition.

Psychological condition: summary of findings

For the reasons outlined above, I find that:

•The diagnosis of chronic adjustment disorder is not supported by the evidence.

•The accident did not cause the psychological condition.

Damages

Summary of findings on which damages to be assessed

I find that:
•The plaintiff suffered a very traumatic event on 10 May 2003. He suffered a crush injury of the chest which did not damage any internal organs. The plaintiff suffered fractured ribs and bruising to the upper abdomen which was very painful. The ribs healed within six to eight weeks. There remains some minor diminution of chest wall compliance which probably contributes in a minor way to shortness of breath on exertion;
•The accident caused the acute episode of AF and continuing episodes of AF until the ablation in January 2004;
•The symptoms of AF before the second ablation were distressing and concerning;
•The second ablation in January 2004 cured the AF;
•Based on Dr Sham's evidence, there was no cardiological condition which prevented the plaintiff obtaining a pilot license after the second ablation;
•The accident did not increase the risk of the plaintiff's AF progressing to permanent AF;
•Even without the intervention of the accident, there was a risk (assessed in the Canadian study) of permanent AF;
•I am not satisfied that it is more probable than not that the accident caused the psychological condition.

Assessment of damages

Given my findings, I make no award of damages for future economic loss.
The parties will agree the amount of special damages in the light of my findings. If they are unable to agree, there will be liberty to apply to the court.

General damages

Section 3C Motor Vehicle (Third Party Insurance) Act 1943 provides the statutory formula for the awarding of non‑pecuniary loss.
In my view, given the injuries suffered in the accident and the consequences which I have outlined above, the proportional severity of injury by reference to a most extreme case is 12 per cent.
Thus the amount of damages for non pecuniary loss is calculated as follows:
$37,080 (12% of $309,000) less $15,500 (Amount B) = $21,580 (s 3C(5))

Capital loss on the sale of the family home

The plaintiff claims the capital loss for the sale of his family home in Kalamunda. He sold the property in 2006. He claims that it was, in effect, a forced sale because of his financial difficulties caused by the accident.
In my view, assuming that the plaintiff was in financial difficulties serious enough to force the sale of the family home, those financial difficulties were not caused by the accident.
The plaintiff had not worked for around 20 months before the accident. The effective time he was out of work due to the accident was around four months. He was incapacitated for work for eight months after the accident and before the second ablation. He would have been incapacitated for four months due to his back condition in any event.
The accident‑caused period the plaintiff was out of work should be calculated from 1 September 2003 (the date when he would be fit to return to work but for the accident and after recovery from back surgery) until the time he was fit to return to work after the second ablation. There is no specific evidence as to the latter. Accordingly, doing the best I can, I estimate that recovery time of a month would have been sufficient.
Therefore the period the plaintiff was out of work due to the accident was from 1 September 2003 until, say, 28 February 2004 ("the relevant period").
There is no evidence before me as to the financial need to sell the house other than the fact that the plaintiff was not working during the relevant period. Given that he did not have to sell his house until 2006, I assume that he would have had sufficient reserves or other means to support himself from 1 September 2003 until 28 February 2004.
I therefore reject the plaintiff's claim for capital losses on the sale of his family home.

Past loss of income

In order for there to be an award of damages for past loss of income, the onus is on the plaintiff to prove that but for the accident, he would have been employed within the relevant period.
Mr Lawrence Cox and Professor John Mangan testified about the plaintiff's prospects of securing employment generally.
Mr Cox is the Manager Industrial Relations for the Australian Federation of Air Pilots. His evidence related essentially to the specific job market for pilots and the likely salary and conditions which the plaintiff might attract depending on the particular airline. Professor John Mangan is professor of Economics at the University of Queensland and Research Dean of the Faculty of Business Economics Law, specializing in labour market economics and economic modelling. Professor Mangan's report and evidence dealt with the current labour market conditions for airline pilots and related occupations within the aviation industry with particular treatment of the Australian labour market for pilots.
In deciding whether the plaintiff would have obtained work as a pilot within the relevant period I take into account:
•The relevant period;
•The plaintiff's employability having regard to his age, medical history, the time period he had not worked prior to the accident and the limited license endorsements (for example, he had no training to fly Boeing aircraft and would have to be retrained to fly that aircraft);
•The evidence as to the lack of local opportunities for direct entry command; and
•Opportunities within the general labour market for pilots.
There was evidence that the plaintiff had worked as a pilot for almost his entire working life, progressing up the hierarchy of command until he reached the level of captain in 1992. He had no interest in pursuing any other sort of employment. He had evidenced his intention to obtain employment as a pilot by his two applications for work with China Airlines and Qatar Air. As at February 2003, he was prepared to wait for a posting with a Middle Eastern airline. However, there is no evidence as to how long he was prepared to wait. There is no doubt in my mind that the plaintiff wanted to obtain work as a pilot (at captain level) and but for the accident would have attempted to obtain work.
The plaintiff had not worked as a pilot from September 2001.
Given my findings that the plaintiff did not accurately present his symptoms to the psychiatrists and that I cannot be satisfied as to the diagnosis, I have no evidence as to the appropriate diagnosis of the plaintiff's present psychological condition and I cannot assume that it existed during the relevant period. In other words, I cannot factor in a psychological condition in deciding whether the plaintiff would have secured employment.
The plaintiff's back condition would have prevented him from working from May 2003 (when surgery was initially scheduled) until 1 September 2003. There is no evidence from any likely employer whether the plaintiff would have met the medical requirements of any particular airline given his back condition, notwithstanding that he had a Class 1 medical certificate in Australia.
The plaintiff said he intended to work until the retirement age of 65 years. I am prepared to accept that evidence.
Professor Mangan testified that at the age of 45 years, the plaintiff would have had real difficulty in obtaining employment.
Mr Cox testified that there was a shortage of pilots in the airline industry between 2005 and 2008.
Except in those airlines which permitted direct entry command (usually overseas' airlines), the plaintiff would have had to start at the bottom of the hierarchy as a flight officer. Mr Cox testified that it would be rare for a senior captain to return to work except in a direct entry command position. In my view, the plaintiff would be unlikely to accept a position unless he were appointed at the level he was occupying before he stopped work in September 2001.
If the plaintiff obtained work overseas in a direct entry command position, this would have been on contract.
CASA imposed the multi‑crew condition on 22 August 2002. CASA removed the multi-crew condition on 12 February 2003 after consideration of cardiological reports but endorsed the medical certificate "renew by CASA". As far as CASA was concerned, the plaintiff's heart condition did not disqualify him on medical grounds as a qualified pilot.
Balancing all these factors, I am satisfied on the balance of probabilities that the plaintiff had the chance of obtaining employment within the relevant period. I have no doubt that the plaintiff was deprived of that chance because of the aggravated AF caused by the accident. I cannot ascertain with certainty the specific airline and the salary and conditions would have been applicable to the plaintiff. This is despite extensive evidence from Mr Cox and Professor Mangan.
The leading case on the assessment of damages for loss of a chance is Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 where the majority held at 549:
"Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550–1. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
The plaintiff must prove on the balance of probabilities that he has sustained loss or damage which had some value and which was caused by the contravening conduct, in this case, the accident. The value is ascertained by reference to the degrees of probabilities or possibilities: Poseidon Ltd & Sellars v Adelaide Petroleum NL (1992‑1994) 179 CLR 332.
It is unnecessary to traverse all the decided authorities and the rationale for this decision. In this regard, in Berry v Hames Sharley (WA) Pty Ltd [2008] WASCA 59, Hasluck J examined the relevant cases. In particular, at 536 his Honour stated:
"It appears from Sellars [supra] and related cases that the valuation process of a loss of chance is ascertained by reference to the degree of probabilities and possibilities inherent in the plaintiff succeeding had the plaintiff been given the chance which the contract promised. However, it is essential when assessing loss of chance that the court looks at the value of the chance, not what would have been received had the benefit or opportunity materialised: Howe v Teefy (1927) 27 SR (NSW) 301."
It is a difficult task to assess the probability of the plaintiff obtaining work within the period. However, I would assess the probability of him obtaining work within the period at 60 per cent. I make that assessment by revisiting the abovementioned evidence.
The defendant submits that I should take the plaintiff's retained earning capacity to earn income from alternative employment within the period into account. However, given the relatively short period of time I am to consider, I consider that it would not have been reasonable to expect the plaintiff to look for alternative employment within that period.
I would award a global amount to reflect ancillary benefits such as superannuation, bonus, overtime and travel benefit which I am satisfied would have been payable although it is impossible to particularise these or to attribute a specific value to each benefit.
In all the circumstances, I consider that the plaintiff should receive an award of $40,000 for the loss of a chance to obtain employment because of the injuries he suffered in the accident.

Summary of damages awarded

The damages I award are summarised below:
Non pecuniary loss $21,580
Loss of a chance to obtain employment $40,000
$61,580
I shall hear submissions from counsel as to the issues of interest and costs.

Annexure A: Extract from DSM-IV

Diagnostic criteria for adjustment disorders

A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
B.These symptoms or behaviours are clinically significant as evidenced by either of the following:
1.Marked distress that is in excess of what would be expected from exposure to the stressor.
2.Significant impairment in social or occupational (academic) functioning.

C.The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre‑existing Axis I or Axis II disorder.
D.The symptoms do not represent bereavement.
E.Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Specify if:
Acute: If the disturbance lasts less than six months.
Chronic:If the disturbance lasts for six months or longer.