Stuart Douglas Parker v Charles Youmaran

[2015] NSWDC 199

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Stuart Douglas Parker v Charles Youmaran [2015] NSWDC 199
Hearing dates:	20, 21, 22 and 23 July 2015;Plaintiff’s further written submissions 27 July 2015;Defendant’s written submissions in reply 6 August 2015.
Date of orders:	11 September 2015
Decision date:	11 September 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict for the Plaintiff
Catchwords:	TORTS – negligence – personal injury – motor vehicle accident – reasonable care – contributory negligence – brain injury– damages
Legislation Cited:	Civil Liability Act 2002 (NSW) s 15B Evidence Act 1995 (NSW) ss 36 and 60 Motor Accidents Compensation Act 1999 (NSW) ss 126 and 141B
Cases Cited:	Davis v Swift [2014] NSWCA 458 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Mason v Demasi [2009] NSWCA 227 McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Verryt v Schoupp [2015] NSWCA 128 Wade and Ors v Allsop (1976) 10 ALR 353
Category:	Principal judgment
Parties:	Stuart Douglas Parker (Plaintiff) Charles Youmaran (Defendant)
Representation:	Counsel: Mr S E McCarthy (Plaintiff) Mr A Renshaw (Defendant)   Solicitors: Shine Lawyers (Plaintiff) Hall & Wilcox (Defendant)
File Number(s):	2014/00046365
Publication restriction:	Nil

Judgment

Introduction

1. On the morning of 1 April 2011 the Plaintiff, Stuart Parker, was en route from his home at River Street, Earlwood in New South Wales to the offices of his employer, AIMIA, at Pyrmont. It was a familiar route riding his Suzuki SV 1000 motorcycle, along Hamilton Avenue, Collingwood Avenue, before heading in an easterly direction along Homer Street. Around 8 am, at a point some three to five hundred metres into his travels along Homer Street, just past the intersection with Watkin Avenue, Mr Parker’s motorcycle collided with the Defendant’s vehicle, being a 2006 Peugeot 307 Hatchback. The Defendant’s vehicle had just exited a driveway on the south side of Homer Street and was seeking to make a right hand turn when the collision occurred.

2. The Defendant has admitted breach of duty of care but has alleged contributory negligence. The nature and extent of the Plaintiff’s injuries and quantum of damages are also in dispute.

Liability

3. It is not in issue that Homer Street has two lanes of traffic to the east and two lanes to the west. At the time of the accident it was described as busy with traffic. The speed limit was 50 kilometres per hour. [1] The Plaintiff had no recollection of the actual collision. He did acknowledge having a general practice of adhering to speed limits. The evidence disclosed that he had two previous speeding infringements (the last in 2002) incurred in 28 years of driving. I do not regard these as relevant in the circumstances.

   1. Exhibit L, p 5

4. The Defendant’s evidence was that he resided at his unit in Homer Street for nine months prior to the accident. He was heading for work on the morning in question and to enter Homer Street, drove up a long driveway which was adjacent to the block of units where he resided. He stated that it was thirty to forty metres in length. According to his evidence, he stated:-

“As I was driving towards the driveway I had a glance to my left as I probably always do, to the right and just as I proceeded to drive, that’s when my wife yelled out.” [2]

2. T 256.28

5. There were vehicles parked to Mr Youmaran’s left. [3] He stated that he believed that there was a ute with a big cage that was always there. [4] He described the cage as a large cage with a lot of junk in it.

   3. T 256.42

   4. T 257.15

6. Thereafter the following exchange took place:-

“Q. So when you were going forward you had on your left his ute with the cage on it and where in relation to that ute did you look to your left, before it or after it, as you entered the road?

A. Before it.

Q. Did you look after it or not?

A. I can't recall, I'm sorry.

Q. Then what happened?

A. That's when my wife screamed out and we - I glanced at her left and I saw Mr Parker heading towards me with a motorbike.” [5]

5. T 257.18-.28

7. The Defendant stated that he always had to stop as there was a wall there before he hit the road. Accordingly he stopped to glance to the left. First, he could not say how far down the road he was when he glanced to the left. When asked to give an estimate he stated:-

“I mean, probably thirty metres, maybe to the left, twenty metres, that these cars obstructing constantly. At that time of the morning there is always cars parked on the left hand side.” [6]

6. T 258.35

8. When asked about his speed of travel, the Defendant stated that it was probably five kilometres per hour but, just as he was turning to the right, maybe a bit faster. [7]

   7. T 258.24-.27

9. In cross-examination, the Defendant was taken to photographs of the scene. [8] Thereafter the following sequence of questions and answers is recorded:-

   8. Exhibit C

“Q. If I could just ask you to go back to photograph 10, please.

A. Yeah, I'm there.

Q. Do you accept that if you had slowly nudged your car out a couple of metres further before making a right-hand turn, you would have enjoyed a view very similar to that shown in the photograph?

A. More than likely, yes.

Q. I don't know how good your eyes are, but if you--

A. Not very good, but yeah.

Q. Just do your best on this one. If you were to look to your left in that photograph, can you see the lights at Watkin Street, shown as really, just a small green ball?

HIS HONOUR: Sorry, is this at photograph 10?

MCCARTHY: Photograph 10, your Honour, yes.

WITNESS: I can see a little green dot a fair bit away, yeah.

MCCARTHY

Q. You know the area. Are you aware that there is a set of lights in the approximate position of that dot, and it's at the intersection of Homer and Watkin?

A. Correct.

Q. So you accept this, don't you sir, that if you got your car into the position shown at photograph 10, you could have seen all the way down, perhaps beyond the intersection of Watkin Street?

A. Yeah, correct.

Q. That's a distance of about 150 metres?

A. I guess so. Yeah.

Q. Is that approximately right?

A. Yeah.

Q. What you could have done, sir, rather than adopting the course you did adopt on that day, was this, I suggest. You could have slowly manoeuvred your vehicle, nose first, into that position. I think you've already accepted that much. Is that correct?

A. Mm.

Q. The consequence of that at worst, would you accept, is that you might have been intruding into the westbound lane by a small amount?

A. Correct.

Q. That wouldn't have been a problem, would it, because there was no imminently oncoming traffic?

A. Not much traffic, yeah. That's correct.

Q. So that wouldn't have been a safety problem for yourself, would it?

A. I guess not.

Q. Even in the event that, having nudged forward, you found a car coming towards you and found yourself stranded, you could have simply just reversed back in your driveway, couldn't you?

A. That's correct.

Q. So there was no need at all, was there, for you to manoeuvre your car into the east-bound lane with the haste which you did, was there?

A. Well, in hindsight, probably not, but—

OBJECTION. FORM. QUESTION REPHRASED

Q. There was nothing at all preventing yourself from having more than one look to the left, was there—

A. No.

Q. I withdraw that. Before you proceed north on the carriageway?

A. No.

Q. You accept, don’t you, that if you looked more than once to the left you would have considerably increased the chances of seeing Mr Parker?

A. Maybe, yes.

Q. That just follows logically, doesn’t it?

A. I’m in – yes.

Q. If you were in the position of the photographer in photograph 10 and Mr Parker was driving his motorcycle east bound on Homer Street, you would have definitely seen him, wouldn’t you?

A. I guess so, yes.

Q. If you’d seen him, you obviously wouldn’t have deliberately tried to hit him, would you?

A. Of course not, no.

Q. You would have done everything you could to avoid an accident?

A. Correct.

Q. That would have involved allowing him to safely pass before you then reconsidered your turning options?

A. Correct.

Q. You accept this, don’t you, that if you’d taken those precautions, that is, the precaution of nosing out into the position in photograph 10 and remaining there until it was clear, then this accident could never have occurred?

A. Yes, well, more than likely, I guess, yes.

Q. I’m putting to you it’s something a bit stronger than that. It simply couldn’t have occurred, could it?

A. Well, it depends on how fast he was going, I guess.

Q. You don’t know anything about that, do you?

A. Exactly, I don’t.” [9]

9. T 266.24-268.31

10. I accept that the Defendant’s view, as he exited the driveway, was partly obscured by parked vehicles to his left. This is demonstrated in photographs P2 and P3 of the report of Hall Technical dated 24 November 2011. [10]

    10. Exhibit 1, p 7-8

11. The police sketch of the crash site showing the rest positions of the vehicles and the configuration of the street are displayed in Figure 1 on page 5 of Exhibit L. The passenger in the vehicle driven by the Defendant was not called to give evidence. Nevertheless the following is recorded in the report of Jamieson Foley Consulting Forensic Engineers [11] as being attributed to the passenger:-

“At approximately 7:55am on Friday, 1 April 2011, my husband and I left our house to go to work. At the time my husband was driving our car which is a silver Peugeot bearing NSW (reg). I was seated in the front passenger’s seat.

As my husband drove out of our driveway he began to turn right into Homer Street so we could drive into the City. In the last moment of my husband completing the turn, I noticed a motorbike travelling towards us. I can’t remember what lane the bike was in.

Upon seeing the bike I said ‘babes, babes’ so I could get my husband’s attention. I had seen the bike swerve to the left towards the footpath to try to avoid us but before I could say anything else the bike collided with the passenger side of our car. The bike collided without car on its side.”

11. Exhibit L, p 17

12. Mr Jamieson records calculations estimating an exposure time of the Defendant’s vehicle of 2.7 seconds. [12] The Defendant’s expert Mr Hall, in his report, discussed an estimated exposure time of 3.5 seconds. [13] However, based on the description provided to police [14] as well as the statement by the Defendant’s wife referred to above, I am satisfied that the Defendant did not glance further to the left after departing, thus reducing exposure time to the level suggested by Mr Jamieson. [15]

    12. Exhibit L, p 19

    13. Exhibit 1, p 17 at [7.4]

    14. Exhibit K

    15. Exhibit L, p 22

13. Based on the traffic conditions accepted by both the Plaintiff and the Defendant at that time of the morning, it is unlikely that the Plaintiff would have travelled at a speed greater than 50km/hr. I also accept the evidence of Mr Jamieson that, taking into consideration the damage occasioned, as shown in appendix C to his report, and the rest position of both vehicles, which was close to the assumed impact area, the expected impact speed was about 35km/hr. [16] This is consistent with the evidence of Mr Hall. [17]

    16. Exhibit L, p 18

    17. Exhibit 1, p 15 at [6.10]

14. Mr Jamieson stated, in relation to Mr Hall’s report the following:-

“A report provided by the Defendants (the insurer of the Peugeot) was reviewed from Mr Chris Hall, MIE. Most of the material in Mr Hall’s report was generalist in nature and agreed with. Similarly, most of the variables included in Mr Hall’s report were agreed with, with him producing ranges of various estimates, including sighting distance and pre-braking speeds of the motorcycle.

While the lower ends of these ranges were agreed with, it was considered that the upper ends of the ranges were probably unlikely, given: the expected nature of the peak traffic on the sub-arterial route, the witness statements, the vehicular damage, and the rest position of the vehicles.

That is, by the time the motorcyclist braked, it was essentially a low speed collision with the motorcyclist falling to the ground with the motorcyclist being trapped under the machine.

Given the sligh angular deviation of this road, combined with the parked traffic, the right-turning Peugeot driver effectively “turned blind”. While such turns are not uncommon, particularly when vehicles are emerging from driveways, it is defensive driving practice for an emerging driver to expose the nose of the vehicle for some time within a lane in order to fully inform approaching drivers of their presence.

In this instance, it is evidence that the Peugeot driver simply drove across the westbound lane, thus reducing his exposure time to a period shorter than the motorcyclist was able to stop.”

15. The onus of establishing the contributory negligence rests with the Defendant. [18]

    18. Verryt v Schoupp [2015] NSWCA 128 at [26] per Meagher JA (with whom Gleeson JA and Sackville AJA agreed)

16. The relevant statutory provisions for determining contributory negligence were referred to in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA and Adamson J agreed). His Honour held:-

[23] Section 138(1) of the MAC Act provides that the "common law and enacted law as to contributory negligence" apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.

[24] The starting point is s 9(1) which provides that if the claimant "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person" the damages recoverable in respect of the wrong "are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].

[25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 as follows:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage .... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

[26] Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is "just and equitable" to have regard "to the claimant's share in the responsibility for the damage", s 138(3) provides:

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

[27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence "where the injured person ... was ... not wearing a seat belt as required" by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was "just and equitable" or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.

[28] In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is "just and equitable in the circumstances of the case" will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] - [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133].

[29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence.”

17. Recently, Beazley P stated in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 (Barrett and Gleeson JJA agreeing) as follows:-

[161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.

[162] As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable “by such percentage as the court thinks just and equitable in the circumstances of the case”.

18. In submissions, Mr Renshaw, who appeared on behalf of the Defendant, referred to evidence given by Mr Youmaran to police after the accident. It was conceded that the Defendant bore the principal part of the liability but attention was drawn to the following exchange recorded by police with Mr Youmaran just after the collision.

“Q. Had you looked for oncoming traffic prior to pulling out of your driveway?

A. Yes. It was completely clear and as soon as I turned just… he was completely flying.

…

Q. Approximately how long was the roadway clear of oncoming traffic before you pulled out?

A. Five seconds, s-10 seconds.”

19. Mr Renshaw contended that this version, being contemporaneous and unpressured by time, should be accepted

20. The contention that the Defendant’s view of the roadway was clear for five to ten seconds before the he pulled out and that the Plaintiff came “completely flying” does not accord with the Defendant’s sworn evidence or that of his wife making observations and calling out to him to get his attention. The latter evidence was not objected to and falls to be considered in accordance with s 60 Evidence Act 1995. The term ‘flying’ in any event is at best a descriptive impression given at a time when the Defendant was on his own admission in deep shock. [19] To the extent that it conveys anything inconsistent with speed in accordance with my findings, I do not accept it. In my view contributory negligence has not been established.

    19. T 68.45

Treatment

21. Following the accident, the Plaintiff was taken by ambulance to the Royal Prince Alfred Hospital. He was noted at the time to have had a Glasgow Coma Scale score of 13 at 8:15am and 8:22am and 14 at 8:32am and 8:42am. Loss of consciousness for 1-2 minutes was recorded as having been witnessed. Morphine was administered for pain and the Plaintiff was thought to have compound fractures to the right clavicle, right humerus and right wrist.

22. At the Royal Prince Alfred Hospital he was noted to have sustained the following:-

1. Close head injuries;

2. Two spinal fractures of C7, T3-9 transverse processes and T 12;

3. Fractures of the pelvis, right scapula, right radius and left metacarpal;

4. Four chest injuries with multiple right rib fractures and associated right pneumohemothorax; and

5. Abdominal trauma (a small sub-scapula splenic haematoma).

23. There were multiple complications which extended the Plaintiff’s recovery time, including:-

1. Hypertension and ongoing requirements for blood products during the initial orthopaedic surgeries;

2. Acute renal failure requiring haemodialysis;

3. Respiratory tract infection;

4. A need for prolonged ventilator support resulting in tracheostomy;

5. Pulmonary emboli necessitating anti-coagulant therapy;

6. Diarrhoea;

7. Superficial vein thrombosis; and

8. Pressure ulcer in the sacral region.

24. The Plaintiff’s evidence was that he was in a coma for around one week, although after that he was still sleeping a large amount of the time and not able to follow anything particularly complex. [20] Notwithstanding he was on opioid medication, he claimed that he was still suffering pain in his spine (particularly the thoracic spine), ribs, down the right side of the abdomen, right wrist and severe pain in the shoulder blade and down into the pelvis. [21]

    20. T 35.44

    21. T 36.5-.10

25. When he awoke from the coma he was heavily medicated and could not move. He was in a neck brace, lying flat on his back and all he could do was look upwards and was unable to move his legs or right arm, use his left hand and could not speak or eat. [22] Initially he could not speak because of the tracheotomy but subsequently was constantly dry in his throat as a result of being fed through a tube down his nose. [23]

    22. T 35.21-.26

    23. T 35.30.33

26. The Plaintiff gave evidence as to the discomfort and pain he felt whilst having a chest and neck brace. [24]

    24. T 37.48

27. The Plaintiff described his condition as feeling “very trapped, to the point of having a panic attack”. He stated that he could not move his legs because of muscle wastage and had little movement in his left hand and felt “totally helpless”. [25]

    25. T 39.17

28. On 1 June 2011, the Plaintiff was discharged from the Royal Prince Alfred Hospital and admitted to the Metro Rehabilitation Hospital. Whilst there, Mr Parker received considerable physiotherapy and occupational therapy as well as social work support. When he arrived he could not walk and was getting around in a wheelchair and in a “forearm brace”. He stated that he was constantly in pain in the thoracic spine, the ribs and the right shoulder. [26] He also stated that he had pain in the pelvis and the right wrist. [27] Further he could not toilet himself on his own but was able to recommence independent toileting after two weeks. Independent showering did not happen for a few weeks after he went home. The daily treatment he received included two sessions of physiotherapy in the gymnasium and one session in the hydrotherapy pool. [28] He conceded that this assisted him in terms of regaining movement. [29]

    26. T 44.5-.9

    27. T 44.13

    28. T 43.35

    29. T 43.38

29. The clinical notes of the Metropolitan Rehabilitation Hospital record chief impairments including “closed head injury”. [30] Further they note that a Montreal Cognitive Assessment (MOCA) indicated cognitive functioning was well preserved over all (total score 29/30) and delayed verbal memory (for five words) was mildly impoverished (4/5 on free call and 5/5 with queuing). [31]

    30. Exhibit E, p117

    31. Exhibit E, p 120 and 332

30. The Plaintiff was discharged on 24 June 2011.

31. The Plaintiff’s evidence was that, at home, metal railings were installed on both sides of the stairs leading to the house and a detachable head, shower seat, a bench for the bath tub and a height-adjustable hospital chair as well as a seat over the toilet.

32. Nerve conduction studies carried out at St Vincent’s Hospital on 29 June 2011 by Dr O’Neill concluded as follows:-

“The right ulner sensory action potential was absent. There was a small compound muscle action potential from ADM. Right ulner motor conduction velocity was normal with no evidence of motor conduction block across the right elbow segment.” [32]

32. Exhibit E, p 101

33. On 30 June 2011, an ultrasound of the right shoulder which was reported on by Dr Stewart as follows:-

“Mild subacromial bursal thickening with bunching on abduction with AC joint degeneration. [33]

33. Exhibit E, p 122

34. A venus duplex scan was carried out on 8 August 2011 in relation to the Plaintiff’s lower extremities. Professor JP Harris commented:-

“Chronic non-occlusive thrombus with right medial gastrocnemius vein with no evidence of extension into the popliteal vein. Patent major axial deep vein left lower extremity with no evidence of deep venus thrombosis. There was evidence of wall thickening with long saphenous veins bilaterally and the right short saphenous vein.” [34]

34. Exhibit E, p 123

35. A chest x-ray was carried out on 15 August 2011, which was reported on by Dr John Harding-Smith. The report noted:-

“At least six posterior right rib fractures, healed/healing. Some associated plural thickening.” [35]

35. Exhibit E ,p 124

36. The Plaintiff was seen on 15 August 2011 by Dr Paul Torzillo, respiratory physician. In a letter of the same date to the Plaintiff’s general practitioner, Dr Ryan, Dr Torzillo stated that the Plaintiff had made a remarkable recovery. Dr Torzillo noted that the Plaintiff was walking but still has some right shoulder and back discomfort but is otherwise coping well. He noted that there were complaints of numbness to the left thigh which he thought was L1 in distribution. He noted that the Plaintiff had good lower limb movement and essentially normal flexion-extension at the hip with well-preserved reflexes. [36]

    36. Exhibit E, p 125

37. On 19 August 2011, the Plaintiff had CT scans of the cervical and thoracic spine performed which were compared with previous scans conducted on 8 May 2011. Dr Wilkinson, radiologist, reported:-

“Multiple cervical spine and thoracic spine fractures noted again. There is maintenance of vertebral body heights and no abnormal alignment detected on today’s studies. There is sclerotic change associated with these factors in keeping with bone healing.” [37]

37. Exhibit E, p 128

38. In relation to the left elbow, an x-ray conducted on 19 August 2011, Dr Schatz reported:-

“There is joint space narrowing. There is some bone irregularity of the lateral edge of the capitellum. On the lateral projection, there is ossific density posteriorly at the level of the olne cranonfossa- either boney spur or loose body. There is also ossification around the surface of the medial epicondyle. The findings would be consistent with previous intra articular injuries. CT is recommended to better define these findings.” [38]

38. Exhibit E, p 127

39. On 12 September 2011, Dr Torzillo noted that the Plaintiff remained well and that his echocardiogram showed no evidence of pulmonary hypertension. [39] Dr Torzillo also noted that the lower limb Doppler studies showed some abnormalities and chest x-rays showed fractured ribs with some plural abnormalities. He recommended that the Plaintiff cease anticoagulants after six months, commencing 1 October.

    39. Exhibit E, p 126

40. The Plaintiff came to be seen by Dr Petchell, orthopaedic surgeon, in late 2011. Dr Petchell noted the Plaintiff’s lack of response to six months of physiotherapy for his shoulder and therefore recommended arthroscopic acromioplasty and capsule release. [40] A right shoulder arthroscopic acromioplasty, distal clavicle co-planning and capsule release was carried out at the Sydney Private Hospital by Dr Petchell on 24 February 2012. Following this, Dr Petchell saw the Plaintiff on 15 May 2012. He noted that the Plaintiff had gained motion and there was good power of the rotator cuff with no discomfort or supraspinatus. He recommended that the Plaintiff continue physiotherapy and commence a strengthening program. [41] There is a suggestion that the Plaintiff saw Dr Petchell in December 2012, however, there is no report of this. [42] The circumstances as to how the Plaintiff came to cease seeing Dr Petchell were not revealed in evidence.

    40. Exhibit E, p133

    41. Exhibit E, p 131

    42. Exhibit 1, p 39

41. What is clear is that on 20 October 2011 the Plaintiff resumed work on a limited duties basis. Commencing 13 October 2012 the Plaintiff attended seeing Professor Cohen, specialist pain management physician and rheumatologist. He has remained with Professor Cohen since.

42. Professor Cohen, referred the Plaintiff for Feldenkrais therapy in order to improve biomechanical function of the thoracic spine and chest cage. This, was not followed through at the time. An alteration was also made to the Plaintiff’s opioid regime with a change to Oxycontin, originally at 60mg per day but subsequently increased to 80 mg per day. He was also prescribed Mirtizapine 15mg at night for its sedative, anti-depressant and its appetite stimulating qualities. [43]

    43. Exhibit E, pp 259-260

43. When reviewed by Professor Cohen on 31 October 2012, the Plaintiff was noted as having some improvement but noted deterioration in mood, worsening sleep and feeling generally out of sorts with headaches and feelings of disorientation. [44]

    44. Exhibit E, p 259

44. On 28 November 2012, the Plaintiff was seen again by Dr Cohen, who recommended reduced opioid usage.

45. On 9 January 2012, Professor Cohen noted that the Plaintiff’s overall predicament was unchanged insofar as the pain was concerned but he was not experiencing as much incident pain and his activity had increased. Sleep and motivation had improved although his mood was between 6 and 5 on a descending scale of depression out of 10. It was noted that the Plaintiff experienced significant incident pain by the time he got home early in the afternoon.

46. The Plaintiff continued to see Professor Cohen, who reported on 9 January 2013 significant incident pain by the time he gets home in the afternoon and recommended changes to Oxycontin and Venlafaxine. [45]

    45. Exhibit E, p 262-4

47. On 6 March 2013, Professor Cohen noted that the Plaintiff’s work was stressful and contributed to his anxiety regarding his future and his income and a pervasive anxiety seemed to occur at other times. On 24 April 2013, Professor Cohen noted that the ultimate intention was for the Oxycontin dosage to be lowered. On 30 May 2013, Professor Cohen noted that Mr Parker remained relatively overdosed with Opioid and suggested that he increase the dose of the Venlafaxine to 112.5mg and if things proceeded well to decrease Oxycontin by 10mg in the morning. [46]

    46. Exhibit E, p 265

48. On 4 July 2013, Professor Cohen noted that the Plaintiff’s sleep and mood remained unsatisfactory. He also noted that the Plaintiff’s concentration and short-term memory were still problematic. He opined:-

“Whether this is due to residua of the closed head injury or medication or the pain is not clear: I would favour medication as the major contributor.”

49. Professor Cohen further noted that the Plaintiff had been cleared to attend Feldenkrais therapy and completed a course with a clinical psychologist. He also noted that the Plaintiff’s current dose of Oxycontin of 45mg was still too high in terms of his brain function but he suggested no change for the moment. He noted a good response to Venlafaxine at 112.5mg per day.

50. On 11 September 2013, Professor Cohen noted that the Plaintiff had been seeing a Feldenkrais therapist on a twice weekly basis. He further noted that this was associated with stirring up some of the pain, arising out of the difficulty which he had in reducing his Oxycontin dosage from 45mg per day. His mood had improved, however, his sleep remained variable. The difficulty with his employment situation was noted, in particular, his relationship with his supervisor and that the job was not secure. [47] This will be discussed later in these reasons.

    47. Exhibit E, p 268

51. On 3 October 2013, the Plaintiff was seen again by Professor Cohen, following his resignation from work. Dr Cohen noted that there were many stresses influencing Mr Parker’s presentation, most of them biomedical and the potential for psychosocial factors to influence experience with pain was acknowledged.

52. In a further report of 27 February 2014, [48] Professor Cohen, noted that the Plaintiff had been attending physiotherapy in Leichardt three times per week for the preceding three to four weeks and that the techniques were mainly passive and painful, associated with an increase in pain of which he complained. He also noted that since the dosage of Venlafaxine was reduced there had been some deterioration in Mr Parker’s mood to which the post-physiotherapy exacerbations of pain may have contributed. He suggested that the dose be restored to 225mg per day and that he continue with other medications, namely, Oxycontin at 45mg per day and Pregabilin at 150mg at night.

    48. Exhibit J

53. On 24 April 2014, Professor Cohen noted that Mr Parker recorded that his mood had stabilised on the high dose of Venlafaxine. Professor Cohen noted that Mr Parker had reached a plateau in his predicament which was unsatisfactory but in respect of which he was being a very good self-manager. The effectiveness of pharmacotherapy was again reviewed and Professor Cohen recommended that the daytime dose of Pregabalin might be added in the mid-morning at 75mg to see if he could reduce the sensitivity of his spine and thus increase his endurance for activities.

54. In a report dated 5 June 2014, Dr Cohen noted that the Plaintiff had attempted to take extra Pregabalin in the mid-morning for a week and a half but at the expense of increased fatigue and feeling disconnected. He reported:-

“Mr Parker has recently pursued the recreational activity of making a new guitar: although that activity gave him much pleasure and elevated his mood, it was associated with the exacerbation of pain.

This lead me to consider other aspects of Mr Parker’s predicament, namely that he is expected to look for work and, at his own request, has been certified as fit to do so albeit for only 16 hours per week. However, a closer look at his predicament suggests that he is really not fit to look for work: he is not yet into “non-work” and his pain is easily exacerbated. I cannot see how he can compete in the open market at this time. I have suggested that he might discuss with you as being certified unfit to work for the time being.”

55. On 6 August 2014, Professor Cohen noted that Mr Parker had reached an unsatisfactory plateau with his main complaint being fatigue, especially physical but also mental, particularly in the afternoons and evenings. He noted that the Plaintiff’s sleep was characterised as being non-refreshing. Professor Cohen noted that while the Venlafaxine and Pregabalin had been of benefit, he was concerned that the Plaintiff’s mental agility and some of his emotionality continued to be dampened most likely due to the opioid. He therefore suggested that Oxycontin be reduced to 10mg (a 115% reduction in dosage) while other drug prescriptions continued.

56. On 6 August 2014, Professor Cohen wrote to Dr Barry, recommending that Mr Parker undertake Feldenkrais therapy for specific attention to thoracic intervertebral and costovertebral movement. [49] It appears that there was a reduction of 5mg per day of Oxycondone in September 2014, which had some impact. On 6 November 2014 Professor Cohen wrote to Dr Barry, suggesting that the dose be restored to 45mg per day. This was subsequently further increased to 60mg per day. [50] Professor Cohen then attempted to place the Plaintiff on Gabapentin with a view to changing from Pregabalin. It was subsequently ascertained that there was no real response to the Gabapentin, with the Plaintiff noticing that incident pain had increased as well as an increase in background pain. [51]

    49. Exhibit J

    50. See Exhibit J, reports dated 11 March 2015 and 17 June 2015

    51. Exhibit J

57. In a report of 11 February 2015, Professor Cohen wrote to Dr Barry stating:-

“In my recent reports to you I have expressed the view that Mr Parker has been travelling as well as possible – but that is still not good enough. I do think that he is doing as well as he can and is continuing to benefit from ongoing clinical psychological input. The challenge is more at the nervous system level – to see if we cannot achieve better control of symptoms. Accordingly, I have now suggested the dose of opioid be increased by adding Targin 5/2.5 mg to each of his current Oxycontin 15mg doses, thereby increasing his total daily opioid dose by one-third. (When his next Authority script is due to be renewed, depending on his response, I would suggest that it be changed to Oxycontin 20mg tds). I have also suggested that gabapentin now be phased out, reducing the daily dose by 300mg every half week to zero.” [52]

52. Exhibit J

58. On 11 March 2015, Professor Cohen wrote to Dr Barry and stated that he had noted that the Plaintiff had commenced treatment with Ms Hellman, Feldenkrais therapist, and continued useful sessions with a clinical psychologist. He noted that the Plaintiff had increased his opioid use to 60mg per day for a probable benefit to background pain. He suggested that Mr Parker continue with Oxycontin and Venlafaxine as before, noting that he was doing as well as he could and asked him to concentrate gently mobilising the thoracic spine with the help of Ms Hellman. [53]

    53. Exhibit J

59. In a final report, as tendered in the proceedings, dated 17 June 2015, Professor Cohen noted:-

“At review on 17 June last, after a three-month interval, Mr Parker certainly appeared to have maintained if not extended his previous gains. He has found that the increased dose of opioid, to Oxycontin 60mg/day, has allowed to him get on (sic) with life to some extent, although he probably does not pace optimally and therefore he experiences more incident pain. Cognitively he recognises that his ability to “multi-task” is compromised: I understand that he has had a full neuropsychiatric assessment recently in which he felt that fatigue and concentration were the main issues.

Regrettably Mr Parker has only had six sessions of Feldenkrais therapy to date and I would very strongly urge the insurer to authorise ongoing such (sic) treatment, as this is a mainstay of his therapy.

It remains my view that Mr Parker is travelling as well as might be expected. I suggest no change to his current pharmacotherapy. I know that the medicolegal aspects of his predicament are due to be heard next month and hopefully a weight will literally be lifted from his shoulders.

We are also discussed (sic) in some detail the principles of brain retraining, both physically (through Feldenkrais) and cognitively (through a number of techniques).” [54]

54. Exhibit J

60. Professor Cohen has not otherwise provided a prognosis. Nor has any substantive report been provided by the Plaintiff’s general practitioners, being Dr Ryan prior to 27 May 2013 and, thereafter, Dr Barry.

61. The Plaintiff did, however, see Dr Endrey-Walder, most recently on 22 August 2014. In that report, Dr Endrey-Walder stated:-

“There is probably little one can do for his restricted movement at the cervical spine, and given the very serious nature of the cervical fracture, one would certainly counsel against any form of chiropractic or osteopathic manipulation.

I was rather concerned regarding this gentleman’s gibbus at the mid-thoracic back when I saw him two years ago and recommended that he should at least have a plain x-ray to see if there is any wedging of the vertebrae in the area. This has not been performed so far and so I can’t comment further.

It is, however, appropriate to recall that he did suffer fractures of the right transverse processes between T3 and T9, although such injuries are not assessable and would not cause the gibbus.

He may benefit from hydrotherapy on a regular basis, which he has had over the last couple of years. The same applies to his lower back.

There is still nothing further to be done regarding the right wrist condition and no therapeutic measures will make any difference to the numbness in the distribution of the ulna nerve in the right hand which is likely to be either a consequence of the fracture of the distal radius or the subsequent surgery. There was discussion with Dr Petchell more than two years ago regarding possible surgery for the ectopic calcification at the left elbow which certainly contributes to the restricted range of movement, and this is one other reason to see the doctor apart from the right shoulder condition.

…

It remains for me to refer to this man’s left inguinal hernia which I was not aware of at the last time. As to whether he had some weakness in the groin prior to the accident or not is now impossible to say, but it is obvious that in 2009, when he had repair of the right inguinal hernia, he did not have this condition, otherwise it would have been repaired as well.

He suffered multiple injuries in and around the pelvis, and the momentary increased inter-abdominal pressure at the time of the accident could well have precipitated this condition.” [55]

55. Exhibit E, p 200

62. The Defendant did not contest the Plaintiff’s physical injuries. It qualified Dr Barrett, who examined the Plaintiff on 21 February 2013. Dr Barrett’s report has not been tendered on behalf of the Defendant. The Defendant did submit evidence from Drs Pascall and Zeeman. That evidence will be discussed later in these reasons.

Psychological Symptoms and Brain Injury

63. As noted earlier, the ambulance records [56] noted the Plaintiff as having a Glasgow Coma Scale score of 13-14. They also record 1-2 minutes loss of consciousness. The discharge summary at the Royal Prince Alfred Hospital recorded a closed head injury with a CT scan of the brain showing:-

“The ventricles and subarachnoid spaces are within normal limits. No intra or extra axial haemorrhage. No focal parenchymal lesions, mass effect of midline shift. The grey/white matter interface is preserved. No skull fracture identified. The mastoid cells and paranasal spaces are well aerated.” [57]

56. Exhibit E, p 1

57. Exhibit E, p 99

64. As noted earlier, the clinical notes of the Metro Rehab Hospital also recorded “closed head injury” and “nil residual cognitive deficits.” [58]

    58. Exhibit E, p117 and 120

65. The Plaintiff was seen by Dr McGee-Collette, neurosurgeon, who referred the Plaintiff to Dr Zed Thayer for a neuropsychological assessment. No reports from either doctor are in evidence. There are references, however, to both doctors’ reports in the report of Dr Langeddecke dated 10 June 2015. [59]

    59. Exhibit E, p 325

66. Dr Thayer is recorded as having reported on 3 September 2011. Cognitive fatigue was observed and the Plaintiff’s performance was in keeping with his estimated superior to very superior premorbid level of ability in most cognitive domains. Exceptions were in areas of working memory, which was average on a digit reversal task, and memory capacity which ranged from low-average to superior for his age. Dr Thayer apparently concluded that the cognitive weaknesses identified were in keeping with brain injury sequelae and could not be adequately explained by pain, analgesia or the mild depressive symptoms indicated by the Plaintiff on a mood state measure.

67. Dr McGee-Collette reviewed the Plaintiff on 13 September 2011. Dr Langeddecke’s report recorded:-

“Dr McGee-Collette noted the findings of the recent neuropsychometric assessment by Dr Thayer and considered them acceptable under the circumstances. Dr McGee-Collette was of the opinion that Mr Parker had not sustained a severe brain injury, and that his long period of PTA (post traumatic amnesia) was due to prolonged sedation necessitated by his pulmonary injuries. Dr McGee-Collette reported no indications for further neurosurgery involvement.”

68. The Plaintiff was assessed for medico-legal purposes by Dr Jungfer, consultant psychiatrist, on 14 June 2012 at the request of the Plaintiff’s solicitors. Dr Jungfer’s report noted that the Plaintiff had sustained a head and brain injury in that he had a period of loss of consciousness, a prolonged period of retrograde amnesia of greater than 12 hours and a period of post traumatic amnesia that was recorded at 46 days, although this would have been impacted upon by issues with physical illness. Dr Jungfer stated that the clinical records would need to be reviewed to determine the severity of the brain injury and further investigations would need to be conducted. [60]

    60. Exhibit E, pp 137-8

69. Dr Jungfer recorded the neuropsychologist’s assessment as being of the opinion that CT scanning was insufficiently sensitive to pick up the effects of structural injury. [61] In conclusion, Dr Jungfer opined:-

“Mr Parker reports a range of symptoms consistent with having sustained a clinically significant acquired brain injury. When looking at the limited clinical information provided, it is likely that Mr Parker sustained both a structural brain injury from acceleration, deceleration and a hypoxic injury due to his massive chest injuries and hypo-bulimia. This should be clarified, however, by reading the clinical records. Mr Parker’s range of his cognitive symptoms which he reports though are consistent with acquired brain injury. He is following a trajectory of recovery consistent with the known recovery pattern of acquired brain injury and is utilising some adaptive strategies although has not benefitted from appropriate rehabilitation from an acquired brain injury perspective.” [62]

61. Exhibit E, p 143

62. Exhibit E, p 144 at (9)

70. Dr Jungfer diagnosed a cognitive disorder secondary to brain injury (multiple contributing factors including structural brain injury and hypoxemia), adjustment disorder with depressed and anxious mood and chronic pain disorder. [63] Dr Jungfer recommended that Mr Parker would benefit from a referral to a clinical psychologist and a rehabilitation service with expertise in brain injury. [64] The Plaintiff was thereafter seen, at the request of his solicitors, by Dr Dinnen on 3 July 2012. Dr Dinnen, psychiatrist, reported on 13 July 2012. [65] Dr Dinnen’s opinion was:-

“The limited documentation does suggest the possibility of a brain injury occurring in the accident but there is not evidence at interview of any significant cognitive impairment. However, there is evidence of an ongoing depressive response to the injuries and limitations of functions, which is not surprising. In my view, he does suffer from an adjustment disorder with depressed mood. Generally he is coping better than one would expect and he has superior abilities and resources which should prove helpful in the long run. The prognosis therefore is a little bit more positive than one might expect.” [66]

63. Exhibit E, p 145

64. Exhibit E, p 145

65. Exhibit E, p 174

66. Exhibit E, p 178

71. Dr Dinnen stated that the main limitations to the Plaintiff’s work capacity were his physical injuries and his psychiatric condition was said to not have much impact relatively speaking. [67]

    67. Exhibit E, p 178

72. An MRI of the brain was carried out by Dr Parker on 4 October 2012. This was provided to Dr Langeddecke at the time of her assessment by the Plaintiff. The scan is said to have provided no evidence of abnormality. The report itself, however, was not tendered in evidence. [68]

    68. Exhibit E, p 334 also in Dr Pascall’s report, Exhibit 1, p 43

73. The Plaintiff was assessed on 10 October 2012 by Ms Elizabeth Carter, clinical psychologist. Ms Carter did not carry out a neuropsychological assessment but relied upon those which had been carried out previously. She opined that the Plaintiff would benefit from psychotherapy provided by a clinical psychologist with expertise in brain injuries. [69]

    69. Exhibit E, p 249

74. It is clear from the Plaintiff’s own evidence and from the contents of Dr Langeddecke’s report that the Plaintiff saw a clinical psychologist, Ms Lyn Bousfield. [70] This commenced in February 2013 initially on a weekly and then later on a fortnightly basis. [71] It appears that Ms Bousfield discharged Mr Parker from psychological treatment on 26 June 2013 but was subsequently referred back by Dr Barry on 4 October 2013. [72] Nevertheless, Dr Langeddecke reported that the records from the treating psychologist available to her were exceptionally limited. [73]

    70. Exhibit E, p335

    71. T 67.5-68.5

    72. Exhibit E, p 335

    73. Exhibit E, p 335 at footnote [4]

75. On 6 and 14 June 2013, the Plaintiff was the subject of a neuropsychological assessment by Ms Corinne Roberts at the request of his solicitors. Ms Roberts’ report noted that the Plaintiff requested a couple of brief breaks during the first testing session and was clearly fatigued and struggling to sustain his concentration and mental efforts towards the end. The appointment was therefore terminated and testing was completed on a second occasion. A number of learning and memory functioning tests were carried out and Ms Roberts opined:-

“Mr Parker’s results at the current assessment were essentially similar to those obtained by Dr Thayer, apart from a slightly poorer performance on a test of verbal memory that involved the apprehension and retention of logical, verbal material (short stories). In demonstrated in tact intellectual ability, immediate span of attention, working memory, speed of information processing, basic language functions, and high level cognitive or executive functioning (planning and organising, problem solving, flexibility of thinking, conceptual ability, ability to generate ideas). However, his performance of new learning and short term recall, particularly in the verbal domain was less efficient than expected for someone of his superior general intellectual ability. In addition, significant cognitive fatigue was evident, such that Mr Parker ran out of steam and was unable to sustain the mental effort needed to complete the assessment in one day.” [74]

74. Exhibit E, p 315

76. Ms Roberts then went on to state:-

“…These high level cognitive difficulties are likely to be due to the combined effect of a number of factors including residual effects of brain injury (mild to moderate TBI plus possible hypoxic injury), chronic pain and possible side effects of medication required to manage this, chronic sleep disturbance and psychological distress related to adjustment issues.” [75]

75. Exhibit E, p 317

77. Ms Roberts stated that the Plaintiff’s ability to make optimum use of his cognitive abilities may well improve if he has the benefit of clinical psychology input, both in regards to managing his chronic pain and alleviating psychological distress. [76]

    76. Exhibit E, p 317

78. On 9 October 2013, the Plaintiff was seen by Dr Spira, consultant neurologist, at the request of the Defendant’s solicitors. Dr Spira obtained a history from the Plaintiff of significant cognitive fatigue which limited his capacity to maintain his attention over prolonged periods. He also obtained a history of short-term memory difficulties and was informed that the Plaintiff was finding it difficult to record details of conversations he has had in the course of his work and he was finding that he had to keep notes where previously he would have been able to retain the information without difficulty. [77]

    77. Exhibit 1, p 59

79. Dr Spira noted that the Plaintiff complained of cognitive sequelae to the accident and stated that it was important that this be quantified by formal psychometric evaluation. He stated that, ideally, the Plaintiff should be subject to an MRI scan to the brain to determine whether objective evidence of a brain injury can be identified. Psychometric testing did take place with the referral to Ms Corinne Roberts abovementioned. Although the report of Ms Roberts is dated 14 November 2013, it is not referred to in Dr Spira’s report of 19 November 2013.

80. In her subsequent report of 29 November 2013, Dr Jungfer stated:-

“…… the report of the neuropsychologist in my opinion confirms a history of structural brain damage impacting upon Mr Parker’s verbal memory functioning. These biological impairments are further impacted upon by his need for chronic pain medication, his chronic pain and his psychological response to the accident. It is also important to note that psychometric testing occurs in optimal environment and that the person is able to compensate for some impairment. It is my opinion that it is likely that he may well have some subtle impairments in other areas such as executive functioning that are not detectable on psychometric testing but become more evident in his work environment as has been alluded to by the neuropsychologist.” [78]

78. Exhibit E, p 173

81. The Plaintiff completed a six week memory training program at the Royal Prince Alfred Hospital. In a report dated 28 May 2014 Mr David Fox, provisional psychologist, and Mr Laurie Miller, supervising clinical neuropsychologist, stated:-

“…I was extremely encouraged to see Mr Parker use some of the internal memory strategies that he had learned during the course at post-assessment. Mr Parker showed significant improvements on measures of verbal anterograde learning, face-name associative learning and prospective memory at the post-training assessment and he more than doubled his performance on a measure of delayed recall (see Figure 1). Moreover, his performance on delayed recall measure at post-assessment was well-above that observed in the general population. While Mr Parker, reported that his every day forgetfulness remained stable over time (see Figure 2), it is possible that his overall confidence in his memory will improve as he becomes more proficient in applying the strategies that he was taught during the program. Accordingly, at the post-training assessment Mr Parker was able to list more internal strategies and external memory aids that he was using on a day to day basis (see Figure 3). He also indicated on a post-evaluation form that he could recognise more factors and/or ‘triggers’ that could make his memory better or worse and felt that he was more equipped to take on memory dependant tasks throughout the day (see Figure 4).

On a self-rate measure of recent mood, Mr Parker reported extremely severe levels of depression and anxiety and moderate levels of stress at both pre and post assessment (see Figure 5)…” [79]

79. Exhibit E, p 322

82. The Plaintiff saw a psychiatrist at the request of the Defendant’s solicitors in May 2014. Although the Plaintiff could not recall the name of the psychiatrist, it does not appear to be in issue that it was Dr Lewin.

83. On 30 August 2014, the Plaintiff was seen for medico-legal purposes by Dr Pascall, occupational physician, at the request of the Defendant. Dr Pascall noted that she was not satisfied that the Plaintiff had sustained a head injury of any note. Dr Pascall noted that the Glasgow Coma Scale score was 15 on admission to the Royal Prince Alfred Hospital and that the assumption that he had suffered a head injury was based on a witnessed loss of consciousness for two minutes. Referring to the ambulance score, recorded as being initially 13 and then 14, Dr Pascall opined that the 1-2 minutes of loss of consciousness was presumably before the arrival of the ambulance and was, therefore, not observed by anyone medical. Dr Pascall stated that the supposed loss of consciousness may not have been a true loss of consciousness, particularly as the Plaintiff would have been having difficulty breathing and would have been in a great deal of pain. Dr Pascall then opined:-

“For Mr Parker to be considered as suffering traumatic brain injury there must have been ‘evidence of significant impact to the head, or a cerebral insult, or that the accident involved a high velocity vehicle impact’ (MAA Guidelines, p.31 para 5.9) – there is nothing in the ambulance report to indicate there was a blow to the head or evidence of trauma to the head; I do not have the Emergency Hospital notes to know if there was any notation about trauma to the head other than the loss of consciousness; there was however, a high velocity vehicle impact.

The second part of para 5.9 states that there has to be ‘one or more significant medically verified abnormalities, such as an abnormal initial post-injury Glasgow Coma Scale score or Post Traumatic Amnesia or brain imaging abnormality’. I am not satisfied that any of these criteria applied in Mr Parker’s case. I do not consider the criteria for a traumatic brain injury to be fulfilled.” [80]

80. Exhibit 1, p 49

84. In cross-examination, Dr Pascall conceded that Dr Jungfer was possibly in a superior position to her to comment on brain injury. She did not concede this in the case of Dr Langeddecke. [81]

    81. T 202.9

85. In re-examination, Dr Pascall stated:-

“The psychometric testing for depression, for instance, can look worse than mild to moderate brain injury. That would need to be stabilised and deemed not to be depressed in interpreting a psych, neuro-psych test. Opioid medication also slows down the cognitive function and awareness, if not the actual motivation to do the testing and to persist with testing protocols which are quite onerous and prolonged.” [82]

82. T 215.27

86. Dr Brian Zeman, consultant in rehabilitation medicine, produced two reports at the request of the Defendant. In his report, dated 20 November 2014, [83] Dr Zeman opined:-

“There is general agreement that Mr Parker sustained traumatic brain injury and may have had some hypoxic brain injury. He had no neurological signs to indicate brain injury such as hemiparesis or dysphasia. He was of superior intelligence before the accident and his scores for tests of cognitive function after the accident were generally above average or average. Only a few areas of cognitive function were reduced and these were in areas that could occur from causes such as depression, poor motivation, pain etc. He is recognised as being depressed. Since Mr Parker was last seen, he said that he had a breakdown as he could not cope and had to stop work for a period. He has since not returned to his previous work and is actively seeking employment. He has restarted seeing L Bousfield (psychologist). On his current presentation and history with depression and pain etc, if he did have cognitive problems from TBI, they are very mild and subtle as one would expect some reduction of performance from the depression and pain.”

83. Exhibit 1, p 74

87. Further testing was thereafter carried out on 20 May 2015 at the request of both parties’ solicitors by Dr Pauline Langeddecke. Dr Langeddecke noted that the Plaintiff’s overall profile on the clinical solutions effort measure placed him below the tenth percentile, relative to a composite clinical sample of specific clinical groups (including traumatic brain injury and major depressive disorder), persons of similar educational level and general intelligence at the 5, 10, 15 and 20 per cent cut-off. Dr Langeddecke stated that the results in relation to memory testing need to be interpreted with caution. [84]

    84. Exhibit E, p 342

88. In relation to memory and learning abilities, Dr Langeddecke noted as follows:-

“Memory and Learning Abilities: Mr Parker’s performance was highly variable, and at times well below expected levels, on tests assessing his ability to encode verbal and visuospatial information and recall it after a delay of 20 to 30 minutes. His familiarity with this information from previous testing (i.e. practice effects) increases the significance of the weaknesses identified. On the Wechsler Memory Scale (WMS-IV), recall of contextual information (short stories) presented once was Average for age immediately after hearing it and after a 20 to 30 minute delay. This represents a decline from performance on the same task when assessed by Dr Thayer in September 2009, when immediate and delayed recall were High Average for age, particularly after considering practice effects. Ability to learn new verbal associations on a word pair learning task was well below expected levels on present testing, with 6 of the 14 word pairs correctly recalled after four successive presentations. Initial learning was Low Average for age, as was the number of word pairs recalled after a 20 minute to 30 minute delay. On the visually-based tasks, Mr Parker’s ability to reproduce simple figural information immediately after viewing it briefly was at a Very Superior level for age. A significant amount of this information was lost after a short delay: his performance falling within the Average range for age. Immediate recall was Average, and short-term recall was High Average, on a visuospatial memory task assessing recall of designs and their position on a grid. On composite measures (WMS-IC Index scores), auditory memory was towards the lower end of the Average range (32nd percentile), visual memory was High Average (81st percentile), and Immediate and Delayed Memory were within the Average range (70th and 45th percentiles, respectively). Auditory, Immediate and Delayed Memory Index scores were unusually low relative to those expected given Mr Parker’s general intelligence on the WAIS-IV (base rates below 10% in the general population).

Further assessment of verbal memory/learning on a word list learning task similar to the Rey Auditory Verbal Learning Test administered previously (i.e., CVLT-II), placed Mr Parker’s initial recall after the first presentation, learning over five trials, retention of the initial word list after exposure to competing material (another list of words), and short-term retention within the Low Average to Average range for age. Performance was well below expected levels on the delayed recognition memory tasks (which are sensitive to inadequate effort), with only 10 of the 16 target words correctly discriminated from non-target words and two errors on a simple task requiring him to indicate which of two words was contained in the initial list.

The Rey Complex Figure Test was not re-administered as Mr Parker performed at a Very Superior level on this fairly demanding visual memory task when initially assessed by Dr Thayer.” [85]

85. Exhibit E, pp 343-4 at [9.6]-[9.8]

89. Dr Langeddecke summarised:-

“Summary: Cognitive functioning was found to be well preserved in all cognitive domains on present testing with the exception of memory/learning abilities which were generally Average for age without correction for practice effects. It is possible that the validity of the memory findings was compromised by inadequate effort. Mr Parker endorsed significant problems with depression, anxiety and stress on a mood state questionnaire. He and his wife indicated problems with selective higher order cognitive functions and emotional regulation in his normal environment on a questionnaire assessing selective executive functions.” [86]

86. Exhibit E, pp 344 at [9.12]

90. The Defendant submitted that I should not accept Dr Jungfer’s opinion. Attention was drawn to the fact that the case for hypoxic brain injury is not supported by any other expert evidence at all.

91. On the evidence I accept the Defendant’s contention as to hypoxic brain damage but I am satisfied that the Plaintiff did in fact suffer some traumatic brain injury from the effects of the collision. I consider this to be very mild. It has not been demonstrated at any of the diagnostic tests. Nevertheless the Plaintiff had a Glasgow Coma Score of 13-14 /15 at the accident scene and a loss of consciousness for 1-2 minutes. Dr Pascall questions lucidity after the loss consciousness as she claims the plaintiff would have had difficulty breathing and would have been in pain. However her views were not supported elsewhere in the evidence. She stated:-

"I was aware of medical reports that were referring to brain injury, but when I analysed the data from the hospital, there were not the criteria to support a brain injury."  [87]

87. T201.1

92. Doctor Pascall noted she did not have access to the full the emergency notes of the Royal Prince Alfred Hospital as she referred only to the discharge summaries and did not see any notation about trauma to the head. [88] In fact closed head injury is referred to in the discharge referral, [89] although as Dr Jungfer notes in her report of 14 June 2012, the severity of the injury cannot be determined. [90] Dr Pascall acknowledged that the accident involved a high impact collision. She questioned the period of post traumatic amnesia of 46 days due to the Plaintiff’s induced coma. Dr Jungfer acknowledged this as an overestimate but refered to the loss of consciousness and prolonged period of retrograde amnesia of greater than 12 hours.

    88. Exhibit 1, p 13

    89. Exhibit E, p 93   

    90. Exhibit E, p 136 at [7]

93. To the extent of establishing mild traumatic brain injury, I prefer the view of Dr Jungfer who Dr Pascall in any event acknowledged was possibly in a superior position to comment. [91] Dr Jungfer’s opinion in this regard appears to accord with Dr Zeman. I am fortified in this view by the fact that the Defendant arranged for the Plaintiff to be examined by Dr Lewin but declined to tender a report into evidence.

    91. T 202.43

Lay Evidence

94. The Plaintiff is currently aged 47.

95. He continues to have Feldenkrais physiotherapy. [92]

    92. T 86.41

96. He stated that he still sees Dr Barry who provides him with prescriptions of Oxycontin. He stated that he would have further surgery on his shoulder if recommended and there was a good chance of improvement. He was still attending hydrotherapy on a weekly basis. The Plaintiff also expressed an expectation that he may have to undergo surgery in relation to a hernia in the left groin area. [93] He was observed in Court walking with a limp favouring the right side. [94]

    93. T 99.36

    94. T 54.10-.15

97. The Plaintiff’s evidence was that he felt guilt regarding the workload that was placed on his wife and he has negative thoughts including suicidal thoughts. [95] He states that he has been receiving assistance from Ms Bousfield, psychologist, who he sees once a fortnight. He stated that he also had a lower libido. He had increased anxiety. He had anxiety attacks every couple of months. [96] Such attacks would last for a time between 15 minutes and a day. [97]

    95. T 92.10

    96. T 93.48

    97. T 94.8

98. Following the accident, he stated he lost approximately 18-19kg in weight but had gradually regained it. [98] He is presently about 9 kg more than he was at the time of the accident. [99] He put this down to a sedentary lifestyle. He stated that he had a reduced ability to play with his children. [100]

    98. T 94.29-.34

    99. T 94.37

    100. T 95.24

99. Whereas he would previously manage discipline of the children with his wife, following his return home after the accident, this was very much left to his wife. He stated that he felt more like a guest rather than a contributing member of the family. He stated that he felt guilty about the load that was being placed onto his wife and other family members.

100. His pre-injury activities were rock-climbing, bike-riding and making guitars. He stated that he had recommenced making guitars recently. [101] He was previously a drum player but had not gone back to playing drums. Although he still played guitar, his ability to do so had been affected by the shoulder and rib pain. The weight of the electric guitar would be too much after a few minutes, rendering him unable to play it standing up. [102]

     101. T 86.7

     102. T 86.21

101. The Plaintiff stated that he has difficulty making a full fist with his right hand, mainly due to stiffness in the two fingers which occasioned nerve damage. [103] This caused him to have difficulties with gripping and reduced grip strength. He stated that he had problems with his balance, losing his equilibrium. [104] This occurs every 1-2 weeks. He does drive but not much longer than half an hour due to soreness in the shoulder and the back. [105] He stated that he had difficulty climbing up and down stairs. [106] He favoured his right leg to push up and tended to use his left arm on the railing. He had regular headaches: several a week. [107] The intensity of these headaches ranged from a good solid headache to a virtual migraine. [108]

     103. T 88.7

     104. T 88.28

     105. T 88.49

     106. T 89.20

     107. T 89.44

     108. T 90.1

102. Currently, the Plaintiff complained that he suffers from a limitation of movement in the neck on a regular basis, affecting both driving and sleeping. A lack of rotation in mobility in the right shoulder with associated pain. Pain in the thoracic spine is constant, the spine is very stiff and he does not get a lot of movement from it. He stated that any activity would aggravate it. [109] Even lying or sitting in one position for a long period of time would aggravate it. He stated that he had pain in the right and left elbow. [110] Insofar as the pelvis is concerned, prolonged sitting or lying would affect the pelvis, depending on the hardness of the chair or surface. [111]

     109. T 96.34

     110. T 97.17-.46

     111. T 97.49

103. The Plaintiff described tingling-like pins and needles sensations in the top of the ring and little fingers and he described a feeling of numbness. [112] He described himself as using predominantly his thumb, index and middle finger of the right hand. [113] With the other two fingers being rolled over just to keep them out of the way.

     112. T 98.9-.26

     113. T 98.37

104. Insofar as the ribs are concerned, he stated that it was quite painful when twisting. [114] He has pain in the right clavicle. [115] The frequency of that pain is dependent on it being cold, if he had a knock or if he moved in the wrong way. Repetitive movements of the right arm would increase pain in the right scapula, particularly when trying to carry a bag or a bottle of milk or driving with arms raised. [116] Insofar as his wrists are concerned, the Plaintiff stated that he had restricted movement in the wrist in certain directions. [117] He stated that he used to use a full hand to type but now tends to use two fingers and a thumb. [118] He stated that he had difficulties writing [119] and had a difficulty with his body temperature, becoming hot in any temperature and sweating profusely. [120]

     114. T 99.47

     115. T 100.15

     116. T 100.22

     117. T 101.22

     118. T 101.40

     119. T 102.8

     120. T 102.36

105. The Plaintiff noted in evidence that he was still having problems with his breathing. [121] He stated that he had a shallow breath, that he could not take deep breaths and that his breathing was into the diaphragm as he did not get much movement in the upper chest. He stated that he suffered from shortness of breath with mild exertion and had a spasm where he would at random need to catch his breath. [122]

     121. T 85.29

     122. T 85.32

106. The Plaintiff gave evidence that, prior to the accident, he had what he would describe as a “photographic” memory [123] although he later qualified it by saying “Not completely photographic but pretty good.” He stated that, following the accident, his memory was “terrible. Short-term wise, yes.” [124] He elaborated as to the difference between short-term and long-term memory and stated:-

“It’s making and recalling new memories. I can remember, you know, things that happened in my life and events, people prior to the accident. I struggle with remembering things that are told to me or that I’ve read post the accident, remembering people, names, things that I’ve said. I’ve been told that I’ve told the same stories twice at family gatherings.” [125]

123. T 63.41

124. T 63.48

125. T 64.2

107. The Plaintiff gave evidence as to the impact which this had on his work. [126] He gave evidence that one of the factors which prevented him from going beyond working three 5 hour days and one 6 hour day when he resumed employment was a combination of pain and cognitive fatigue. [127]

     126. T 64.10

     127. T 62.9-.20

108. The Plaintiff’s complaints were supported by his wife.

109. In particular Mrs Parker gave evidence of the Plaintiff’s loss of short-term memory following the accident. She described the difference since the accident as follows:-

“Immensely. He was - never kept, never used to write lists or anything and now you know we've got some apps that help him and he relies on those. You know, I mean he forgets to take his tablets. We've got alarms set to take his tablets because he forgets and I can walk in the door and tell that he hasn't taken it. So we've got again, you know, pill boxes with the set days and, yeah, it's just immensely different.” [128]

128. T 242.21

110. Michael Whelan was a close friend of the Plaintiff who had known him since their days as students at Newington College. The evidence that he gave was that he was very close to the Plaintiff, having studied at university together, doing the same course and subjects. He described the Plaintiff as being smart with high intellectual horsepower before the accident. [129] He was asked whether he had tried to talk to the Plaintiff following the accident about science or something of that nature, being neutral but complex. His response was as follows:-

“I mean, it’s been four years so I think probably after his accident we probably, I tried to pick up our relationship in the same vein as it once was, but very quickly kind of recognised that he didn’t have the, I don’t know what the term would be. He didn’t have the stamina or even the engagement or insight, or was unable to, seemed unable to partake in conversations of that kind of level. So they slow very quickly, desisted.” [130]

129. T 120.40

130. T 122.24

111. He stated that the Plaintiff was very recluse and often disengaged. He stated that he appears to have lost confidence and his focus is often negative. [131] From the physical perspective he described the Plaintiff being “broken” and “being in pain all the time.” [132]

     131. T 121.41-.45

     132. T 122.33

112. The Plaintiff attended primary school in Wagga Wagga and was educated at Newington College for his secondary schooling. In 1986, he completed his Higher School Certificate with a high grade and thereafter entered Sydney University where he completed degrees in computer science and pure mathematics, minoring in psychology.

Education and Work History

113. From 1990-4, he worked at “Monitor Money” as a graduate programmer. From 1994-6 he was employed at Advanced Bank as a senior systems analyst. In 1996 he obtained additional qualifications at “object orientated design”. Between November 1996 and February 1997, he undertook various contractor roles, including a business analyst role with “Bridges”. Between March 1997 and July 2000, the Plaintiff commenced his own company “Maxx Computer Systems” which was a small software development company specialising in the creation of small to medium size systems. In 2000, he undertook the “foundations of leadership” course at McGinness Partners. In 2002, he undertook advanced management training at McGinness Partners. Between July 2000 and 2003, he was employed as a technology architect/manager at IPAC Securities. In 2004-7, the Plaintiff was employed as a business technology manager for Asia Pacific Premier Global Services. In 2005, he undertook a course in managing culture diversity with IIR Executive Development. In 2005, he undertook a course in managing virtual teams at IIR Executive Development. In November 2007 until June 2010, he was employed as a senior consultant with OBS. In 2009, he undertook a course in “real-time speaking”. He was employed by AIMIA as a business solutions team leader and business analyst in July 2010 to September 2013. The evidence was that he worked on average a 40-45 hour week.

114. He stated that his role was that of a senior business analyst and at the time of commencement, he was earning in excess of $100,000.00 per annum. He described AIMIA as a loyalty marketing company which has systems which could provide for customer loyalty schemes. He indicated, however, that the company provided services which ranged the full lifecycle from consulting through to the full implementation of management. He described that with Qantas they provided a product redemption shop for frequent flyer points, whereas with the Commonwealth Bank of Australia they ran an operation which included call centres and, in other instances, they provided only consulting services. He described his role as the interface between the business people who wanted an amendment or an enhancement to their product or a new product and the IT team. His job was described as highly technical, involving significant communication skills. He stated that he enjoyed being part of making technology understandable to business people and trying to get to the core of what business people were asking for and form a solution that was efficient and creative, bringing a new edge to a company’s product.

115. In the role described, he reported to Mr Gavin Allen. Mr Allen gave evidence in the proceedings and described the role performed by the Plaintiff. [133] He described the Plaintiff as definitely one of the more technical business analysts with whom he had worked. He stated that he had superior communication skills and he was generally very happy with his work. He stated that there was a pay review period in relation to the early part of 2011, January/February, and Mr Parker’s salary was adjusted with a $15,000.00 increase. He stated he recommended the pay rise, which was unusually high but was purely merit-based. He stated that Mr Parker performed extremely well and he was being given more and more responsibility. In relation to the role which Mr Parker fulfilled, Mr Allen stated that:-

“One of the key things a business analyst needs to do is understand all the requirements from the business as well as the capability or feature set of the technical implementation. For them to be able to do that they have to keep a lot of information in their head at any one time because it is very common for business to come up with random questions at random times and to be able to respond to those quickly is very important.” [134]

133. T 173.7

134. T 174.22

116. Insofar as the need for regular attendance at employment, Mr Allen stated:-

“As I said, questions come up all the time from business so it is important that someone is there to respond to those questions when they come up because it can involve costly delays if those answers can’t be found quickly.” [135]

182. In the case of Mrs Parker, the Defendant called for and tendered a statement that she had prepared, which was Exhibit 3 in the proceedings, it is inevitable in cases of this kind that there would be some discrepancies between it and the oral evidence.

183. Nevertheless, I regard it as broadly consistent both in terms of the time spent and the nature of the duties performed. Mrs Parker conceded in evidence that some of the periods are a bit “blurry”. The Plaintiff has conceded case of shopping that this should not be included as it was a jointly performed activity prior to the accident which Mrs Parker now undertakes.

184. The statement also does not include the outdoor handyman work which the Plaintiff previously performed nor the gardening and mowing work which Mrs Parker, according to her evidence, now undertakes. [208] The statement, furthermore, was confined to the work which Mrs Parker performs at the current residence.

     208. T 241.13

185. Dr Davis, in his report of 10 October 2012, noted that the accident had had a profound effect on all spheres of Mr Parker’s life including activities of daily living and his ability to enjoy life’s general amenities. [209] Dr Davis recommended that a formalised home needs assessment should be undertaken by an appropriately qualified and experience occupational therapist.

     209. Exhibit E, p 214

186. That assessment was carried out on 7 February 2013 by Injury Access who provided a report dated 28 April 2013. [210] The report noted in relation to the period during the Plaintiff’s stay at the Royal Prince Alfred Hospital and Metro Rehabilitation Hospital was about 13 weeks and that the domestic activity which the Plaintiff had performed on his behalf by Mrs Parker totalled 555 minutes including 60 minutes of shopping. When the latter is deducted it gives the equivalent of 8.25 hours, being the amount provided by Mrs Parker in paragraph 12 of her statement in Exhibit 3. Whilst I note that the report of Injury Access referred to the need for personal and attendant care services as well as child care assistance, no claim in this regard was made in the Amended Statement of Particulars possibly because it was being covered by the workers compensation insurer.

     210. Exhibit E, p 271

187. During the period from June to August of 2011, the report also documents some personal care needs which were attended to in part by Mrs Parker were the subject of her evidence. This was not set out in Exhibit 3. What is recorded is that from mid-June to the date of the report, 7 hours of domestic assistance was provided excluding shopping and 12 hours child care. This is consistent with Exhibit 2 except that from March 2012 until 10 February 2014, the Plaintiff asserts that the needs for child care dressing, bathing and supervision increased by 3 hours per week to 15 hours. Despite the evidence in exhibit 3, I am not satisfied that any extra hours were incurred.

188. Mrs Parker’s evidence was that as the children matured they were able to do more for themselves. [211] Furthermore in cross examination she conceded that in terms of child care dressing, bathroom and supervision from 2012 to present she was doing probably seven hours that the Plaintiff was previously doing. When the variation from her statement was put to her she stated that she was confused and did not hear the word “supervision” [212] .

     211. T 238.5 and T 251.41

     212. T254.3

189. Dr Endrey-Walder, in his report dated 22 August 2014, supports the view that Mr Parker remains significantly restricted, especially with activities that require him to elevate his dominant upper limb above the shoulder and requires him to lift weights beyond 6-8 kilograms. He noted that the Plaintiff has no capacity to be useful in the backyard for which he will need ongoing help and assistance, likely paid assistance in the long term. [213]

     213. Exhibit E, pp 201-2

190. Dr Pascall, in her report dated 30 August 2014, stated:-

“Apart from the heavier tasks, which might include lifting his son, there is no reason to suppose that he could not participate in his family life to a greater extent than he is currently doing. He could, for instance, take his son and his friend to school and pick them up, if not pick up his daughter as well from day care.

He could be participating more in the household chores. There is no reason he could not do the laundry for the family and a good deal of the family shopping. He could do most of the cleaning tasks in the household if he chooses to do so; he may need to pace himself through heavier tasks, such as vacuuming and carry that out over several days, but there is not routine household task which is not within his capacity.”

193. Dr Zeman, in his report of 20 November 2014, stated that Mr Parker does not require any personal care, attendant care or nursing care as a result of the accident. He acknowledged, however, that the Plaintiff would benefit from assistance for heavy domestic, handyman and gardening activities. He would estimate this at 4 hours per week after the provision of simple equipment such as a laundry basket, kitchen trolley, low-access clothes dryer and washing machine. [214]

     214. Exhibit 1, p 83

194. I prefer to accept the report of Dr Ting, supported as it is by Drs Davis and Endrey-Walder. Dr Ting’s report was a thorough analysis and was broadly consistent with Mrs Parker’s evidence.

195. In McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148, the Court of Appeal rejected a mechanical approach to the assessment of voluntary domestic assistance. Stein AJA stated at [20]:-

“20   The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression

196. The Plaintiff’s claim is 14 hours per week in total. [215] It is put that this involves some discounting although there also appears some averaging. Nevertheless I did not understand it as being put that the Plaintiff failed to meet the statutory thresholds at any point. [216]

     215. T 253.22

     216. See Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91]

197. Consistent with the decision in McConachie (supra), I propose to allow 8 hours per week for the first 12 weeks after the accident. This takes account of the period during which Mr Parker was at the Royal Prince Alfred Hospital and the Metro Rehabilitation Hospital. The figure discounts the component of shopping which has been referred to earlier. Allowing 12 weeks of 8 hours per week at the statutory rate of $25.68 comes to an amount of $2465.28.

198. Thereafter I am satisfied that 7 hours of domestic care was incurred as well as 7 hours of domestic services to the Plaintiff’s children [217] consequent to the Plaintiff’s loss of capacity. In each case I am satisfied that the threshold requirements of s 141B of the Motor Accidents Compensation Act 1999 (NSW) and 15B of the Civil Liability Act 2002 (NSW) have been met.

     217. Born 2008 and 2010 according to Exhibit B

199. Accordingly from 24 June 2011 to date I find 7 hours per week domestic assistance under s 141B of the Motor Accidents Compensation Act 1999 (NSW) and 7 hours per week services under s 15B of the Civil Liability Act 2002 (NSW) as having been incurred. Allowing this at the agreed rate of $28.00 per hour, for 220 weeks comes to an amount of $86,240.

200. This makes total past domestic assistance an amount of $88,705.28.

Domestic Care Services – Future Domestic Assistance

201. In his report of 28 April 2013, Dr Ting opined that he expected Mr Parker to encounter significant difficulties in work and accordingly be less able to discharge his domestic duties into the future. [218] The quantification of future domestic care which the Plaintiff requires and which he deemed necessary and reasonable, equates to 7.6 hours per week after taking into account a deduction of 30 minutes for shopping.

     218. Exhibit E, p 298

202. The evidence before me indicated that the Plaintiff and Mrs Parker were in need of assistance to relieve Mrs Parker of the domestic burden which she has had to bear following the Plaintiff’s injury as well as some maintenance work that has not been carried out at all. I accept the Plaintiff’s submission that some of the services into the future should be provided commercially. This was consistent with the evidence of the Plaintiff [219] and of Mrs Parker. [220] Mrs Parker’s evidence, however, was that she would continue to provide gratuitous services previously performed by her husband. [221] The evidence before me indicates that the commercial rate is $42.00 per hour. [222]

     219. T 148.10-.20

     220. T 241.5

     221. T 242.31-.36

     222. Exhibit E, p 299

203. Looking at the assessment of Dr Ting in table 9 of his report, it seems to me that the services best attuned to commercial provision are those involving cleaning, gardening and home maintenance. This accords with the Plaintiff’s evidence. [223]

     223. T 148.15-.28

204. The allowances made for the future by Dr Ting were made at a time as a result of an assessment in 2013 at a time when the Plaintiff was still working. In his report he states that the Plaintiff was expected to encounter significant difficulties at work and hence less able to discharge domestic duties. This situation clearly does not arise at present as the Plaintiff is not working. In light of my findings as to the Plaintiff’s future employment capacity any work he undertakes in the future would be at a level and duration which he would be better able to accommodate his functionality. Even so I still accept that it will impact on his ability to perform domestic duties.

205. It is not entirely clear as what basis some of the activities mentioned by Dr Ting were included in his future assessment in light of the qualifications expressed by the Plaintiff particularly as to the gardening activities [224] although there was evidence that professional help has been sought in the past for some pruning [225] and hedging. [226]

     224. T 129.25-132.3

     225. T 241.9

     226. T 111.29

206. Although Dr Ting has suggested that the amount of time required for domestic assistance will increase when the Plaintiff reaches 64 years old, It has not been particularised as to how this might occur except by reference to a footnote which suggested that time spent on household work increases with age. There is no evidence which would indicate this is to occur in the Plaintiff’s case. Whilst there is some suggestion of an intention both on the part of the Plaintiff and Mrs Parker to move into a bigger house, I do not consider the provision of additional domestic assistance for this purpose to be reasonable and necessary. To the extent that the present accommodation requires maintenance as disclosed in the evidence this is reflected in the assessment including work that has been deferred. [227]

     227. T 241.29-.41

207. Accordingly, I to allow 3 hours of paid care per week for 38 years (on a multiplier of 902) at the rate of $42.00 per hour, which comes to an amount of $113,652.

208. I allow for gratuitous care for 6 hours per week at the agreed rate of $28.00 for 38 years (on a multiplier of 902) which comes to an amount of $151,536.

209. Dr Ting further stated that Mr Parker would require 5 hours per week of child care assistance until his daughter turns 5 years of age and thereafter he would require 3 hours until the child turns 11 years of age. [228]

     228. Exhibit E, p 299

210. These amounts do not reach the threshold in s 15B(2) Civil Liability Act 2002. In any event there is evidence that the Plaintiff does already attend to providing some transportation and the supervision of children.

211. This makes the total future assistance sum in the amount of $265,188.

Out of Pocket Expenses

212. Past out of pocket expenses have been paid for by the workers compensation insurer and were agreed between the parties in the sum of $284,092.00. In addition, a refund for past Medicare payments has been agreed at an estimate of $3,750.00.

213. In relation to the future, both parties submit that this should be accommodated by way of a cushion. The Plaintiff submitted that this should be in the sum of $110,000.00 for future medical and treatment expenses and $15,000.00 for future aids and equipment. The Defendant proposes a figure of $30,000.00 for future medical expenses and nil for future aids and equipment.

214. In relation to the latter claim there is evidence that the Plaintiff has had some modifications carried out to his home which have been paid for by the workers compensation insurer. These were detailed in the Plaintiff’s evidence and included some steps to the front door, metal railings placed on the side of the stairs, a seated shower, a bench for the bath tub, a seat for the toilet, a railing in the shower and a bath board. [229] The Plaintiff’s submission was that these aids would be required as referenced in the report of Dr Horace Ting. [230] The Plaintiff’s submission was that as the Plaintiff and his wife gave evidence that they intended on moving out of their two-bedroom home and into a bigger residence, it would logically follow that there may be a need for handrails and other forms of aid for any other future residence. The Plaintiff’s evidence was that he had aspired to a bigger house at some point in his life. [231] Mrs Parker gave evidence that the house in which she and the Plaintiff resided was a 3-5 year house, being their first entry into the market. She confirmed that aspiration to move to a bigger house. [232] I do not accept that the provision of further aids to meet an aspiration for a new house as reasonable and necessary for the Defendant to meet. I do accept, however, that there may be a need for an orthopaedic mattress to promote better spinal alignment and improve sleep as set out in Dr Ting’s report. [233] In all the circumstances I propose to make some allowance also in relation to the replacement of existing aids which might require maintenance. Accordingly, I would allow a figure of $7,500.00 in this regard.

     229. T 46.1-.25

     230. Exhibit E, p 301

     231. T 103.36

     232. T 239.17-.29

     233. Exhibit E, p 301

215. In relation to future medical and out of pocket expenses, Dr Jungfer has recommended six reviews from a consultant psychiatrist at a cost of $320.00 per consultation, $40.00 per calendar month for pharmacotherapy with a minimum of 2 years psychiatric care and treatment. She also recommended a further twenty sessions with a clinical psychologist to work on cognitions, anxiety and adjustment issues. This was costed at $220.00. Dr Jungfer opined that referral to a consultant psychiatrist would be appropriate should the pain management specialist not be comfortable in terms of treating Mr Parker for mood symptoms. [234]

     234. Exhibit E, p 168

216. Dr Endrey-Walder recommended a review by Dr Petchell in relation to the Plaintiff’s restriction in range of movement in the right shoulder. This was costed at $300.00. In addition he recommended that an MRI scan of the right shoulder be performed at the cost of $500.00. He indicated that the Plaintiff might benefit from hydrotherapy on a regular basis. Insofar as surgery is concerned, he opined that there was a possible need for surgery for the ectopic clacification of the left elbow which contributed to the restricted range of movement. This was estimated to cost in the vicinity of $6000.00 to $8000.00 including physical rehabilitation. In relation to the multiple injuries in and around the pelvis, Dr Endrey-Walder suggested that surgical intervention is not urgent but would eventually be required at a cost of $6,000.00. [235]

     235. Exhibit E, pp 200-1

217. Dr Davis, in his report dated 10 October 2012, also accepted that it was possible that the Plaintiff may require a release procedure of the left elbow and further that he would almost certainly require ongoing treatment by way of palliative measures provided by physical therapies rather than increased ingestion of medications. He considered that palliative physical therapy should run at cost of $1200.00 per annum. Dr Davis further stated that the Plaintiff will require continual supervision by his orthopaedic surgeon and neurosurgeon in the next three to four years at an estimated cost of $600-$700.00, and also by his general practitioner on a monthly basis at a cost of $65.00 per visit. [236]

     236. Exhibit E, p 214-5

218. Gil Myburg, physiotherapist, carried out a functional assessment in relation to Mr Parker on 10 October 2012 in which recommendation was made for further physiotherapy for back and neck. She indicated that the Plaintiff required an exercise and stretch program in order to improve his posture, core-stability and general physical condition and to this end would require 10-12 treatments a year at a cost of $75.00 each. A supervised gym program was also recommended at a cost of $2500.00.

219. Elizabeth Carter, psychologist, in a vocational assessment carried out on 10 October 2012 recommended that the Plaintiff have 12 sessions of psychotherapy at a cost of $218.00 per hour. Ms Corinne Roberts, clinical and consulting neuropsychologist, in her report dated 14 November 2013 stated that it was highly likely that Mr Parker would continue to require medication to assist in pain management and to this end, it was possible that he would require anti-depressant medication but this should be managed by a psychiatrist in conjunction with a pain management specialist. She also indicated that psychological intervention by a clinical psychologist with expertise in pain management would likely be of benefit to the Plaintiff in terms of optimising his psychological state and his cognitive functioning. Unfortunately, the report from Ms Bousfield, the Plaintiff’s psychologist, which would have assisted me in determining the outcome of the psychological treatment which the Plaintiff has had thus far.

220. Professor Cohen, the Plaintiff’s treating pain specialist, also has not provided a report in relation to the Plaintiff’s future requirements. A series of up to date letters to the Plaintiff’s general practitioner, Dr Barry, were admitted in evidence as Exhibit J. The reports note that the Plaintiff continued to use Oxycontin, Feldenkrais therapy from Ms Margerie Hellman. The Feldenkrais therapy appeared to have ceased as at the time when the Plaintiff last saw Dr Cohen on 17 June 2015, [237] however the Plaintiff’s evidence was that it continued. At Professor Cohen’s suggestion, in February of 2014 physiotherapy, which was described as mainly passive and painful, appeared to have ceased. [238] On 11 February 2015, Dr Cohen noted that the Plaintiff was travelling as well as possible and was continuing to benefit from ongoing clinical psychological input.

     237. Exhibit J

     238. Exhibit J

221. Dr Pascall, in her report date 30 August 2014, stated that the deterioration in the Plaintiff’s right shoulder movement was most likely due to the lack of movement after formalised sessions for physiotherapy ceased. In her view, if the Plaintiff continued to have medications for pain they would have become less and less effective over time. She recommended that the Plaintiff tries to become more active with the assistance of the psychologist, eases of opioids and eventually eliminates them, at the same time as increasing his level of activity. [239] Dr Pascall indicated that a psychologist could give an opinion as to whether ongoing psychological treatment is warranted but some assistance in transitioning back to work and a further six sessions would be warranted on the basis that the Plaintiff would be commencing a work trial or similar program of reintroduction to work. No occupational therapy interventions were recommended but assistance to return to the workplace would be needed through a rehabilitation provider which is often an occupational therapist. Dr Pascall also opined that diverting into an allied field where the Plaintiff would be able to work part-time would require the assistance of a vocational psychologist.

     239. Exhibit 1 p 53

212. Dr Zeman, in his report dated 20 November 2014, indicated that the Plaintiff does not require any long term physiotherapy, occupational therapy or similar treatment. In the longer term he stated that the Plaintiff should not require ongoing pain management although it would be prudent to continue interventions for a further 12 months after which it should be ceased.

213. In quantifying the allowance to be made, the absence of material from treating practitioners has provided some constraints. I have already expressed my views on the Plaintiff’s current treatment regime.

214. The Plaintiff has, on life expectancy tables, 38 years of life remaining. I accept that the two surgical procedures which he was recommended in the medical reports are appropriate and it would be reasonable to make an allowance for supervision by his general practitioner, pain specialist, rehabilitation physician, occupational therapist, physiotherapist and psychologist. Of course he will also require an ongoing supply of medications. He may also require the services of a psychiatrist.

215. I propose to allow a buffer figure $75,000.00.

Conclusion

226. The total sum of the damages are as follows:-

1. Non-economic loss = $300,000

2. Past economic loss = $321,292.48

3. Past loss of superannuation at 11% = $35,342.17

4. Future economic loss = $972,993.68

5. Future loss of superannuation at 13% = $126,489.17

6. Past domestic assistance = $88,705.29

7. Future domestic assistance = $265,188

8. Past out of pocket expenses = $284,092

9. Refund for Medicare payments(agreed estimate) = $3,750

10. Future out of pocket expenses (buffer)= $75,000

11. Future aids (buffer) = $7,500

12. Fox v Wood damages = $7,364

227. This sum comes to an award of damages in the amount of $2,487,717 (rounded up).

Orders

228. For these reasons l order as follows:-

1. Verdict and judgment for the Plaintiff in the sum of $2,487,717.

2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs, the Defendant to pay the Plaintiff’s costs.

3. The exhibits are to be retained for 28 days.

**********

Endnotes

Amendments

16 October 2015 - At paragraphs [198]-[199] references to s 15 of the Civil Liability Act 2002 (NSW) have been changed to s 141B of the Motor Accidents Compensation Act 1999 (NSW) pursuant to UCPR 36.17

At paragraphs [212] and [226] the amount of past out of pocket expenses have been changed from $184,092 to $284,092 pursuant to UCPR 36.17.

At paragraphs [227]-[228] the award of damages has been changed from $2,387,717 to $2,487,717 to adjust for the change in out of pocket expenses pursuant to UCPR 36.17.

Decision last updated: 16 October 2015