Sullivan v Chasi - [2018] NSWDC 144

District Court

New South Wales

Medium Neutral Citation: Sullivan v Chasi [2018] NSWDC 144
Hearing dates: 24, 25 and 26 October 2017, 1 December 2017
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
(a) judgment for the plaintiff against the defendants in the sum of $594,780.00;
(b) the defendants to pay the plaintiff’s costs, as agreed or assessed;
(c) liberty to apply to vary (b);
(d) Exhibits to be returned forthwith.

Catchwords: LIABILITY – who was the “driver” at the time of injury; scope of liability under the Motor Accidents Compensation Act 1989; contributory negligence
DAMAGES – assessment – no issue of principle
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Motor Vehicles Act 1959
Cases Cited: Belanger v The Queen (1970) 2 CCC 206
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty td v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11
Pender v Power Coal [2002] NSWSC 925
R v McDonagh [1974] QB 448
Shortland County Council and the Government Insurance Office (NSW) [1973] 2 NSWLR 257
State Government Insurance Commission v Sweeny (1989) 52 SASR 139
Trans v Allen and Anor (1996) 24 MVR 492
Category: Principal judgment
Parties: Barry Daniel Sullivan (Plaintiff)
Nariman Chasi (1st Defendant)
Walid Akel (2nd Defendant)
Representation:
Counsel:
Mr G Graham (Plaintiff)
Mr P Deakin QC with Ms N Compton (1st and 2nd Defendants)
Solicitors:
Lamrocks (Plaintiff)
Moray and Agnew (1st and 2ndDefendants)

File Number(s): 2015/217311
Publication restriction: None

Judgment

Procedural History

Introduction

The Major Issue

The Evidence

Oral Evidence
The Plaintiff
Lisa Michelle Sullivan

The Plaintiff’s Medical Evidence
Professor Ghabrial
Professor Bolin
Dr Horace Ting
Susie Mullen, OT
Dr Alan Home
Dr Vidyasagar Casikar
Other Medical Reports and Records

The Defendants’ Medical Evidence
Dr Seamus Dalton, Rehabilitation Physician and Sports Physician
Dr Ian Barrett

Other Documents Relied Upon by the Defendants

Submissions re Liability

Findings Relating to Liability and Causation

Determination of Liability

Damages

The Plaintiff’s Claim
The Defendants’ Position

Assessment of Damages

Non-Economic Loss
Past Treatment Expenses
Future Treatment Expenses
Economic Loss Generally
Past Economic Loss
Future Economic Loss
Domestic Assistance Generally
Future Domestic Assistance

Summary of Assessment of Damages

Judgment

procedural history

These proceedings were commenced by the filing of a Statement of Claim on 22 July 2015. The hearing commenced in Parramatta on 24 October 2017 with submissions concluding in Sydney on 1 December 2017.

introduction

The plaintiff’s claim relates to an incident which occurred on 13 October 2011 at approximately 2.45pm.
The plaintiff was a licensed testing officer employed by the New South Wales Roads and Traffic Authority (now RMS). At the time of the incident, the plaintiff was conducting a driving examination of the first defendant, the vehicle being driven (a Mazda 3, registration number BVH 60S) was owned by the second defendant.
The circumstances of the incident will be discussed in detail below. It is sufficient, for introductory purposes, to note that the plaintiff apprehended that the vehicle being driven by the first defendant was about to collide with a second vehicle. As a result, the plaintiff grabbed the steering wheel in order to steer the vehicle through a roundabout in order to avoid the collision.
It is said that it was in the course of grabbing the steering wheel with his left hand that the subject injury was suffered by the plaintiff.
Liability was denied by the defendants and the quantum of damages was disputed. Further, by way of Defence filed 4 December 2015, the defendants alleged contributory negligence on the basis that the plaintiff attempted to steer the vehicle from his position in the front passenger seat when there was no likelihood of a collision occurring.
By way of Further Amended Defence filed 18 October 2017 the defendants also put in issue the question of driver, asserting that, at the time the injury was sustained, the plaintiff was in fact the driver of the vehicle.
In terms of damages, the plaintiff claimed to have suffered an injury to his low back with a disc rupture at L5/S1 causing impingement upon the S1 nerve root. An issue of causation arose by reference to clinical notes and accounts provided by the plaintiff post-accident.
The defendants’ Statement of Issues dated 12 October 2017, identified the following 13 matters:

whether the plaintiff suffered injury, loss and damage as a result of a “motor accident” as that term is defined within the Motor Accidents Compensation Act 1999;

whether any injury, loss and damage allegedly sustained by the plaintiff was caused by the fault of the first defendant;

whether the plaintiff caused any injury loss or damage allegedly sustained by him;

alternatively, whether any injury, loss and damage allegedly sustained by the plaintiff was caused by his own contributory negligence and, if so, the extent of same;

the extent of any injury, loss and damage allegedly sustained by the plaintiff as a result of the accident;

the quantification of any damages to which the plaintiff is entitled;

the nature and extent of past out-of-pocket expenses allegedly incurred as a result of the accident;

the nature of future out-of-pocket expenses that will be incurred as a result of the accident and the extent of those expenses;

the extent of past economic loss (including superannuation) suffered as a result of the accident;

whether the plaintiff’s earing capacity has been affected by the accident;

whether any future economic loss (including superannuation) will be suffered as a result of the accident and, if so, the extent of same;

the extent of past attendant care services required and received as a result of the accident;

whether any future attendant care services will be required as a result of the accident and, if so, the extent of same.

The findings I make below will determine those issues.

the major issue

On the question of liability, the main issue is one of statutory construction. That is, whether or not the injury allegedly suffered by the plaintiff was covered by the statutory policy of insurance issued pursuant to the Motor Accidents Compensation Act 1999 (“the Act”).
The plaintiff contended that the claim came within the policy and the Act but, in the alternative, submitted that if it does not then that of itself does not mean that there is no sustainable cause of action against the named defendants. To quote Counsel for the plaintiff, “it just means that she would not be insured under the statutory policy” [T196.28].
This occupied considerable discussion during submissions as neither defendant was represented in their own right in the proceedings. The insurer acted and appeared pursuant to its right of subrogation. Neither defendant was called to give evidence.
I decided that, in the event that the plaintiff failed in his claim under the Act, I would relist the matter for further argument, given the considerable prejudice which might be occasioned to the named defendants who were not afforded an opportunity of participating in the trial. This will be discussed below. For the reasons which follow, this was not necessary.

The Evidence

Oral Evidence

The Plaintiff

The plaintiff’s evidence relating to the question of liability commences at [T21.31]. At the time of the incident the plaintiff was supervising and directing the first defendant on a pre-determined test course out of the Wetherill Park Registry. The description of events relevantly commenced when the vehicle was driven onto Victoria Street. The first defendant was driving the vehicle in the right of two lanes, also referred to as lane 2. The plaintiff was asked what happened as the vehicle was approaching the roundabout at the intersection of Victoria Street and Wetherill Street. He began by stating what had occurred a few hundred metres back from the roundabout, in the following terms:

Answer: Roughly a, a few hundred metres back from the roundabout there’s a school zone that we entered. We were just out of the school zone and the driver maintaining still a reasonably slow speed with slight increase. Approximately about 50 metres before the roundabout I have no idea what prompted it, I could hear the, the noise of a semi-trailer on its exhaust breaks [sic], just to my left. The driver just veered straight into the left lane and the – I heard the (not transcribable) of the breaks [sic] on the semi-trailer come on. And we were now in the left lane quite erratically. There was no, no prompts, no direction, no indicator, from what I saw she didn’t look. I don’t know what prompted her to changes lanes.
[T22.14-23]

The plaintiff’s attention was then drawn to the progress of the vehicle in lane 1 as it approached the roundabout at the intersection with Wetherill Street. He stated:

Answer: We were approaching the roundabout with minimum decrease in speed. The, the cars that were in the right lane that were behind us now, while we were still maintaining that slow speed, have started to come up beside us and we’re both entering the roundabout together, virtually side by side. The, the driver had made very minimal turn on the steering wheel. No, no turn at all and, and we were about to go straight into the side of the, the car that was in the, the right lane as we’ve crossed outside the - our lane. And I could see that we was going – we were going to have a collision. I’ve reached over with my right hand to grab the steering wheel on the, the upper inside, pulled down away from the car to avoid the collision and tried to steer the car away from the, the gutter now that the, the driver had just abandoned control of the car. I didn’t want to take my right hand off the steering wheel to, to try and steer the steering wheel further but I was reaching and steering as far as I could. At that point I had to reach over with my left hand to get further turn of the steering wheel so that we didn’t go straight up the gutter. At this point the driver has no hands on the steering wheel. She’s not braking. She wasn’t accelerating either. Her foot was still on the accelerator there was no, no shift. I’ve had to steer us around the right curve of the, the roundabout and then steer us back out of the left curve of the roundabout. These cars were still side by side with us and as we’ve exited the roundabout and the car’s now pointing straight down the road I’ve had to ask her to put her hands back on the steering wheel.
[T22.30-50].

The plaintiff described the movement of his body as he grabbed the steering wheel with one hand and then the other. He appeared to initially grab the steering wheel in an under hand motion using his right hand in circumstances where his right shoulder was past the centre console of the vehicle. He then reached his left arm across his body so that his left shoulder was almost perpendicular to the car in order to seize the steering wheel. His left shoulder was pointing towards the windscreen. The plaintiff estimated that he would have reached over 1 metre from his left side. He described steering the vehicle initially to the right and then to the left.
In an attempt to make sense of his evidence, he told the Court that his right hand grabbed the wheel at the position 12 o’clock and that thereafter his left hand grabbed the wheel towards the position 9 o’clock. His evidence was a little unclear except that it was apparent that he had to stretch his left arm considerably to the right in order to secure his second hand on the steering wheel of the vehicle.
The plaintiff’s evidence then went on to describe what occurred after the vehicle exited the roundabout, it continued down Victoria Street before turning left into Hassall Street.
There was a further incident as the vehicle approached the intersection of Chifley Street following which the vehicle was stopped and the plaintiff commenced driving the vehicle from the driver’s seat. The first defendant travelled back to the Registry in the front passenger seat.
Upon return to the Registry, the first defendant was notified that she had failed the test and informed of the reasons for same.
The plaintiff told the Court that after the first defendant and her husband left the Registry he felt “like I’d pulled my hamstring”.
The plaintiff went on to describe the onset of symptoms. He first noticed an “alteration in the leg” as he stepped out of the car. That evening, he had pain through his leg and discomfort in his lower back. He thought that he had strained himself getting out of the car.
The next morning (Friday) the pain was stretching further from his buttock down towards the left knee and that continued through the day with pain medication. He was taking Nurofen Plus. The pain stretched further and further down his leg.
The plaintiff stated that in the days following he got more and more pain through his left leg and lower back. Over the weekend was when the pain started to increase to more and more through his back and stretching down the left side of his calf. By the Sunday morning he was in a lot of pain. The Monday appeared to be particularly problematic. Over the first few days of that week, whilst the plaintiff continued working, he would utilise other workers to take his tests so that he could rest.
The plaintiff was asked why he did not attend his GP immediately. He stated that he understood that it was a muscle strain which would go within a few days but that in this case, it got much worse. He then realised that it was not just a muscular injury and consulted his GP.
The plaintiff then described in his evidence-in-chief how he completed the requisite form on the Ensafe database. The plaintiff’s email to the Ensafe Help Desk became Exhibit F.
When the plaintiff consulted Dr Vyas, one week after the accident, he could “barely walk upright” [T41.17]. He said that he was in a lot of pain and taking a lot of pain medication. He had spent a lot of that morning lying on the tearoom floor, unable to move and barely able to get up. It was then that the plaintiff decided to see his doctor.
After seeing Dr Vyas on Thursday, 20 October 2011, he then did not return to work until the following Monday. At that time, he was still in a lot of pain and taking heavier pain medication. He was working just four hours a day on the counter, not doing the driver testing. The medication he was taking was provided on a script from Dr Vyas and was Mersyndol Forte.
Dr Vyas also referred the plaintiff to physiotherapy.
Ultimately, Dr Vyas referred the plaintiff for an MRI scan. At that time the plaintiff said:

I couldn’t lift my heel off the ground. I couldn’t step up onto my toes. There was a huge amount of numbness that radiated from my left buttock all the way down my left leg, the left side of my knee down into the left side of my foot. I had no function. When I, when I would walk my ankle would fold down over on itself and – which was giving me a lot of pain. The left leg wasn’t functioning at all the same as the right.
[T43.31-36].

The remainder of the plaintiff’s evidence-in-chief described the progressive worsening of his condition leading to surgery and beyond. As causation was a central aspect of the defendants’ challenge to the plaintiff, I have carefully addressed that evidence in the context of the cross-examination, below.
The cross-examination of the plaintiff commenced with questioning concerning matters which related to credibility. In respect of one topic, namely the evidence as to the time of onset of symptoms, the evidence bears both upon credibility and causation.
The first topic of cross-examination related to the plaintiff’s decision to leave the Army (commencing at [T59]). The plaintiff unequivocally stated that he left the Army as a result of two events. The first was his application for discharge made six months prior to being discharged and the second on medical grounds. He referred to injuries to his shoulder and stomach which compromised his capacity.
In a series of questions, the plaintiff was given more than ample opportunity to identify any other reason which may have had bearing upon his discharge from the Army. In answer to a direct question, the plaintiff stated that it was completely his choice to leave the Army [T60.12] and that there was no other factor which entered into his discharge from the Army [T60.20].
Senior Counsel for the defendant then asked questions about drug offences involving marijuana in 1997 or 1998 whilst in the Army. The plaintiff agreed that he was charged and pleaded guilty to drug offences around that time [T60.30]. It was suggested to the plaintiff that it was in respect of those offences to which he pleaded guilty which led to him being required to show cause as to why he ought not be discharged. His answer “And I would have been allowed to stay on” [T60.35].
The plaintiff said that he was required to show cause and he did. In what could only be described as a confusing but obviously evasive answer, the following exchange occurred:

Question: What happened was you, having been charged and found guilty of the drug offences and some other matters, that was put before a panel and you were discharged from the Army, weren’t you?
Answer: Like I – I’d submitted my discharge and they all came round the same time.
[T60.41-44].

The plaintiff then agreed that the drug offences related to events which occurred on 19 November 1997. When asked whether he had informed the authorities that he did not wish to submit any representation to the discharge authority on the basis that he did not wish to contest the discharge decision, the plaintiff stated that he did not recall [T61.5]. Then followed a number of evasive responses to questions, the answers to which one would have expected the plaintiff to recall. The documents, the subject of that cross-examination were marked for identification (MFI 5), and later became an exhibit (Exhibit 2). The following question and answer were then given:

Q: I don’t want to take too much time on it, but that collection of documents contradicts completely the suggestion that it was your decision to leave the Army, doesn’t it?
A: Same end result.
[T62.40].

Whilst the same result may have been achieved, the process by which it occurred was completely at odds with the plaintiff’s first version of events. Plainly, this reflects poorly upon the plaintiff’s credibility.
The plaintiff gave evidence of two prior accidents. The first, a motor cycle accident in 1996 when he injured his right knee and the second, also a motor cycle accident in June 2008. As a result of that accident, he injured his left leg and hip. There was a third accident on 24 May 2010, a year prior to the subject accident when the plaintiff injured his left hip, left knee and neck, although there was some question, not particularly pertinent, that he did not recall the knee injury. There was also an extensive history of Crohn’s Disease and the need to take medication for that condition.
Despite saying in his evidence-in-chief that he was not taking medication in the period before the subject accident for his gastric problems, it became clear in cross-examination that he was seeking treatment and taking medication for gastric reflux. The prescription medication, Nexium (also known by other names) had been prescribed by his GP on 27 August 2011 on the basis that he was to take 1 x 40 mg tablet per day. The effect of his evidence was that he was reminded of the fact that the drug had been prescribed but that he was not taking it on a daily basis.
In my view, the evidence in cross-examination about the plaintiff’s consumption of medication does not materially affect his credibility but rather reflects upon the reliability of his recollection.

In relation to the accident, the plaintiff confirmed his earlier evidence that, so far as he was aware, he thought that he strained himself getting out of the car at the end of the examination. That is when he first noticed discomfort.
The plaintiff was cross-examined about the contents of an email sent by him to the EnSafe Helpdesk on Tuesday 18 October 2011 at 4.25pm. Given its significance to at least part of the defendants’ case, it is worth setting out the contents of the email in full, as follows:

Re: Near miss at Wetherill Park CSC on Thu 13th OCT 2011 approx 1445hrs
Whilst conducting a driving test we were travelling east on Victoria St heading towards the roundabout at Wetherill St we were travelling in the right lane.
On approach to the roundabout the applicant veered from the right lane into the left on [sic] front of a truck and other cars. On entering the roundabout the applicant veered straight from the left lane into the right lane in front of same traffic. I reached with my right hand to take control of the steering and could not steer with one hand only so I reached and grabbed the steering wheel with both hands and started steering us through the roundabout.
After we made a left turn at the traffic lights we entered into the left lane of a two lane road. I said at the second street turn right. We continued straight in the left lane. After the first street I said at the next street turn right. The applicant slammed the brakes from approx. 50 km/h to a complete stop. We had three cars behind us, two in left lane and one in right. All cars came to a screeching stop pressing horns. I grabbed the steering wheel to stop the applicant form turning right from left lane.
I asked the applicant to make a left turn, stopped the test and drove the car back.
When getting out of the car from my next test I noticed my left leg was sore, as is I had pulled a muscle. That evening I had a slight twinge in my left leg.
On the Friday 14th Oct 2011 I had the same problem of an uncomfortable feeling in my left leg when walking and getting of the car.
Over the weekend I had some extreme pain and discomfort in my lower back and my left leg stretching from my buttock to my calf. Medication relieved most of the discomfort.
Tuesday 18th Oct I still have some discomfort but feel as if the problem will dissipate with time.
Regards,
Barry Sullivan

(Emphasis added).

Whilst the plaintiff’s description of the events involving the first defendant generally accorded with his evidence, the email is relevant to the onset of pain. His evidence-in-chief was clear that he was completing the test involving the first defendant when he “felt like I’d pulled my hamstring … just had pain down through the back part of my upper thigh” [T36.5]. The email to his employer of 18 October 2011 is inconsistent with that evidence. In the email, he stated that “when getting out of the car from my next test I noticed my left leg was sore, as is [sic] I had pulled a muscle”.
The obvious significance of the differences between the two versions is the lack of temporal proximity between the relevant event, the subject of these proceedings, and the onset of pain. This dilutes the strength of the inference that the injury was sustained during the course of the examination of the first defendant. There was, however, no suggestion that anything unusual or untoward occurred during the second test. I shall consider this issue in the context of the medical evidence, below.
The email was also relied upon as evidence of the fact that the plaintiff complained of soreness to his left leg, which he thought was as a result of pulling a muscle.
The plaintiff adopted what was contained in the email and, having been reminded of the fact, agreed that he must have first noticed the pain after getting out of the car at the end of the test after the first defendant’s test [T72.30].
The following exchange then occurred:

Q: As you told his Honour, you thought you’d strained yourself getting out of the car, that’s what you thought, wasn’t it?
A: Like I pulled a hamstring.
[T72.35].

The plaintiff was further cross-examined on the email. It was suggested that, according to the email, it was not until the weekend that he had pain and discomfort in his lower back. The driving test of the first defendant took place on the Thursday afternoon and was followed by another test. It was after that test, according to the email, that he first noticed that his leg was sore “as is [sic] I had pulled a muscle”. According to the email, on Friday 14 October 2011 he had “the same problem of an uncomfortable feeling in my left leg when walking and getting out of the car”.
This contrasted with the plaintiff’s sworn evidence that it was the day after the test (the Friday) that he started to get pain in his left leg and low back.
On Monday 17 October 2011, the plaintiff returned to work and worked a full day performing his duties as an examiner. The plaintiff was unable to locate any record of the matter being reported prior to the email of Tuesday 18 October 2011. He denied the suggestion that he worked all day on the Monday without complaint. He agreed that he worked all of the Tuesday and sent the email at 4.25pm informing his employer of his condition.
The final paragraph of the email would seem to suggest that he had experienced some improvement in his condition since the previous Thursday:

Tuesday 18 October 2011 I still have some discomfort but feel as if the problem will dissipate with time.

It was then suggested to the plaintiff that, on Wednesday 19 October 2011, six days after the accident, he had a conversation with Deirdre Crosby. The plaintiff said that he did not recall the conversation but thought that she was the injury work management officer. That is, that if he was to suffer an injury she was the person to whom he was required to report it.
It was put to the plaintiff that he informed Ms Crosby on 19 October 2011 that he was getting better and was able to do “normal driver test duties”. The plaintiff appeared to accept that proposition by stating in evidence “I wanted to move on” [T74.38].
Notwithstanding the contemporaneous records, the plaintiff denied that what he told Ms Crosby was inconsistent with what he said under oath in Court, that is that he was experiencing increasing disablement during that period. Ms Crosby’s note continued as follows:

He has been offered GP/injury net appointment. He will monitor and inform manager if he has any problems with duties or sees doctor. No lost time. Manager to monitor and inform IMC of any change.

This evidence, whilst consistent with the plaintiff’s evidence-in-chief that he struggled through work on Monday, Tuesday and Wednesday of that week, is plainly inconsistent with his evidence that he was in a lot of pain and “barely able to walk upright” [T41.17].
The documents produced by the plaintiff’s employer record a notation by Ms Crosby that the plaintiff reported on 20 October 2011 that he had to leave work as he was going to his GP. He was offered a lift but preferred to drive himself. The plaintiff agreed in cross-examination that, prior to that occurring, he had completed his full days’ work on the Monday, Tuesday and Wednesday of that week [T76.16].
At about 1.50pm on Thursday 20 October 2011, the plaintiff consulted Dr Vyas, GP. The following appears under history in the doctor’s clinical notes:

History:
WC
DOI: 13/10/11
RTA Examiner
Developed L buttock & leg pains since Thurs 13/10/11. Gets numbness at back of L leg. Seemed to have started with ache in buttock – after an incident: Was examining person for driving – however she did dangerous manoeuvre & he had to reach over & turn & twist to grab steering wheel to have control of car. Later had to have brakes slammed & to stop suddenly with same applicant.
Had been starting to improve after Monday – using simple analgesics but was worse this morning after putting boots on. Using Nurofen Plus & panadeine extra
No previous back injuries.
(Emphasis added).

Whilst this entry provides some corroboration for the fact that it was an incident during the driving test with the first defendant which most likely caused the onset of the plaintiff’s condition, it is inconsistent with the pattern of onset which he gave in evidence. He told the doctor that his condition had been starting to improve after Monday but was worse on Thursday morning after “putting boots on”.
In evidence, the plaintiff explained that entry by stating that doing something as simple as putting boots on “made my symptoms worse” [T77.47] and that it “flared up the injury that I had” [T78.1].
I note that the plaintiff told Dr Vyas that he was using Nurofen Plus and Panadeine Extra.
On examination, he presented to the GP with a stiff gait, reduced lumbar lordosis, tight lower back muscles and limited ability to flex.
Dr Vyas diagnosed a low back strain and suggested continued medication with physiotherapy. A prescription for Mersyndol Forte was provided.
The plaintiff was then cross-examined about a representation made by Dr Vyas on 20 November 2011 to the effect that the plaintiff “improved very quickly” after seeing Dr Vyas on that date. Nowhere in the clinical notes of the Cecil Hills Medical Centre can I locate a reference to an examination of the plaintiff by Dr Vyas on that date.
Given the issue raised by the defendant relating to causation, it is necessary to go into some detail as to the plaintiff’s presentation to Dr Vyas in this initial period. I have prepared the following chronology based upon the clinical notes of Dr Vyas:

20 October 2011

1st consultation with Dr Vyas following incident.

Fully extracted above.

24 October 2011

Dr Vyas appeared to respond to questions from the insurer regarding injury and prognosis. It does not appear that a consultation occurred on that date.

27 October 2011

2nd consultation with Dr Vyas.

Seven days following first consultation. 13 days following incident.

Dr Vyas noted that the plaintiff “has been much better. Not using analgesia at present apart from Voltaren Rapid 2 TDS”. The numbness was improving. There is reference to physiotherapy and it is stated “keen and happy to re-start examining – feels that he can manage two tests daily”.

2 November 2011

3rd consultation with Dr Vyas.

Has been improving and keen to upgrade. Feels he can do driving tests up to six times/day. Use Panadeine … still gets some heaviness with walking on heel but numbness improved in getting sensation at back of left leg. Having daily physiotherapy.

8 November 2011

4th consultation with Dr Vyas.

“Has been coping well. Less paraesthesia in left leg. Left leg/foot strength continues to improve. See notes from physio – improving … cautioned re getting in/out of cars”.

18 November 2011

5th consultation with Dr Vyas.

“1 m(onth) post injury. Found current duties just manageable. Agrees now was sensible not to upgrade further. However, had more pains and sensory disturbance in left leg on Saturday and worse on Sunday. Was lying down at the time”.

Reference to still taking Mersyndol Forte and having physiotherapy daily during the week.

Dr Vyas referred the plaintiff for an MRI scan of the lumbo-sacral spine.

23 November 2011

6th consultation with Dr Vyas.

It is clear from the note that the MRI results were discussed and the plaintiff was referred to Dr Kam, Neurosurgeon and Spinal Surgeon.

5 December 2011

7th consultation with Dr Vyas.

“Is to see Dr Kam on 19/1/. However, has noticed sensation on foot coming back and is able to put more wt (weight) on left foot almost walk tippy toes. Feels strength in left foot improved. Needing less analgesia.

19 December 2011

8th consultation with Dr Vyas.

“Has been progressing well. Using Mersyndol alt nights. Feels able to 5-6 tests daily.

23 January 2012

9th consultation with Dr Vyas.

“Dr Kam has advised continue conservative Mx (management). Has been going well. Not needing analgesics. Ceasing physiotherapy after last one on Friday. Has been able to do 5 tests daily comfortably”.

20 February 2012

10th consultation with Dr Vyas.

“Has been going well. No back issues. Feels able to and keen to upgrade to pre-injury. Not needing any analgesia. Current duties near normal”.

Unfortunately, the plaintiff’s progress was interrupted by a subsequent event which resulted in him consulting with Dr Vyas on 2 March 2012.
The plaintiff agreed, consistent with the notes by Dr Vyas that his condition was improving through until the end of 2011 with physiotherapy and medication. It seems that in November and December, the plaintiff was doing about four driving tests a day. Prior to the accident, he ordinarily did nine tests per day working Monday to Friday 8.20am to 4.27pm.
The evidence turned to the plaintiff’s attendance on Dr Kam in January 2012. The plaintiff stated that when he saw Dr Kam he could “barely lift my heel off the ground”. That was apparently not recorded by Dr Kam. When the plaintiff was asked in cross-examination whether he would like the Court to accept that in January 2012 he was worse than he was prior to Christmas in 2011, the plaintiff replied:

My symptoms had plateaued, they weren’t really – they were slowly, slowly improving, as in they weren’t getting worse. They weren’t worse than December. It was slowly, slowly getting better – I’d look at either two spectrums, it’s either getting worse or it’s getting better.
[T81.28-31]

Dr Kam’s report dated 20 January 2012 (Exhibit B, page 80-81) described the occurrence of the incident on 13 October 2011 in much the same terms as the plaintiff’s evidence. Dr Kam noted that the plaintiff felt a twinge and some discomfort involving the left hamstring region and that “over the course of the following few days, his pain escalated”.
Dr Kam noted that some three months had passed since the incident and that “his symptoms have improved to some degree”. He is not struggling with too much pain. He is still working.
Dr Kam’s report contains a description of the MRI scan report in the following terms:

The MRI scan of his lumbar spine shows a very large left L5/S1 disc herniation with the disc fragment migrating behind the body of S1. The S1 nerve root also appears to be distorted by the large disc herniation.

Dr Kam recommended conservative management for the plaintiff’s condition given that his symptoms had “substantially improved”.
The plaintiff agreed that what he said in evidence regarding taking medication in January was “completely contradictory” to the recording by Dr Vyas on 23 January 2012 that he was not needing analgesics.
In terms of work, he said that he was being allocated six tests a day in January 2012. Initially, the plaintiff denied that he was doing those tests comfortably until he was reminded of the fact that Dr Vyas’ records of 23 January 2012 record that fact.
That cross-examination established that the plaintiff’s evidence-in-chief regarding the taking of medication in January 2012 and his capacity to work was inaccurate.
He was then cross-examined on notes created by Dr Vyas on 20 February 2012 (referred to above). The plaintiff denied recalling that he told Dr Vyas that he had no back issues as at that time and that he was able and keen to upgrade to his pre-injury work. The plaintiff’s evidence was further contradicted by Dr Vyas’ notes of 20 February 2012 in which it was recorded “not needing any analgesia”.
It was put to the plaintiff that he had no back issues, was able and keen to upgrade to pre-injury work and was not needing any analgesia until the incident of 2 March [T85.17]. He denied those propositions.
The plaintiff was then asked questions about the incident in March 2012. I pause to note that in his evidence-in-chief, the plaintiff stated in that incident, the driver braked quite heavily causing the plaintiff to be thrown forward in the seat, being caught by the seat belt which did not fully engage but applied force across his waist and left shoulder. He told the Court that this incident resulted in a flare-up of the numbness in his left leg and that pain returned to the back of his left thigh again.
In cross-examination (commencing [T85]) the plaintiff said that the incident of 2 March 2012 caused a jarring of his back producing pain.
I note that the plaintiff again consulted Dr Vyas, GP, on Friday 2 March 2012 at 5.18pm. The attendance was recorded as follows:

History:
WC
Was doing Test yesterday & examinee suddenly braked v hard & Barry’s seat belt did not lock & her [sic] jerked forward – head almost skimming mirror Has noticed more ache in back & numbness in toes in L foot. Not noticed loss of strength.
Took Mersyndol last night.
Done full duties.
Actions:
Letter created.
Prescription added: MERSYNDOL FORTE TABLET 450mg/30mg/5mg 1 nocte
Prescriptions printed:
MERSYNDOL FORTE TABLET 450mg/30mg/5mg 1 nocte

It is plain from the history provided to Dr Vyas that the sudden braking of the vehicle caused the plaintiff to jerk forward resulting in “more ache” in his back and numbness in the toes of his left foot.
It is apparent from Dr Vyas’ notes that following the March incident, the plaintiff increased his consumption of medication which included Panadeine Forte as well as Mersyndol Forte and he returned to physiotherapy.
In what is referred to as a “long discussion” on 29 March 2012, Dr Vyas noted that the plaintiff had not been to work in the last two days. Dr Vyas “explained (that it was) unrealistic to do normal driving duties currents [sic] with flare-ups esp with driving episodes”. Dr Vyas recommended continued consumption of medication, physiotherapy and referred the plaintiff back to Dr Kam certifying the plaintiff fit for suitable duties as charted.
It is further apparent from Dr Vyas’ notes that the plaintiff’s condition continued to worsen resulting in “emergency surgery on the 28 May 2012”. The surgery was apparently an L5/S1 micro-discectomy performed by Dr Kam.
The plaintiff told Dr Vyas of marked improvement of back pain straight after the operation noting that both the paraesthesia and numbness had improved.
The plaintiff’s evidence then turned to the Medical Certificates issued by Dr Fair in 2015 (Exhibit B, page 255). I do not intend to summarise the Certificates in their entirety but rather set out a table which refers to the date the Medical Certificate was signed by the doctor together with the certified capacity for employment.

Date

Capacity

5 January 2015

6 hours a day, 4 days a week

5 February 2015

6 hours a day, 5 days a week

5 March 2015

6 hours a day, 5 days a week

8 April 2015

7 hours a day, 5 days a week

6 May 2015

8 hours a day, 5 days a week

3 June 2015

8 hours a day, 5 days a week

6 July 2015

8 hours a day, 5 days a week

20 July 2015

8 hours a day, 5 day a week

(Form completed by Dr Victor Dechniz)

28 July 2015

4 hours a day, 5 days a week

(Form completed by Dr Victor Dechniz)

12 August 2015

No capacity for employment

(Form completed by Dr Victor Dechniz)

25 August 2015

No capacity for employment

10 September 2015

No capacity for employment

9 October 2015

No capacity for employment

2 November 2015

No capacity for employment

2 December 2015

Fit for pre-injury duties

2 December 2015

8 hours a day, 5 days a week

The plaintiff was cross-examined that by August 2015, both Dr Fair and Dr Dechniz had certified him for fit for full time work. Whilst that may have been correct at some stage in mid 2015, it ignored the Certificates which followed.
In any event, the plaintiff was offered redundancy which he took effective 24 October 2015. Prior to that, he had commenced the preparation for setting up his own business. It was plain from his evidence that he chose to set up his own business rather than be employed so as to manage his own hours and work in a “controlled environment” [T90.36].

In relation to his earlier evidence that he was working in his own business doing four to five lessons a day, six to seven days a week, he agreed in cross-examination that he rarely worked more than five days a week whilst employed by the RMS. He agreed in cross-examination that he was doing the hours and the sessions in the vehicle at the same or even greater rate than he was doing before the accident [T91]. The plaintiff stated that as an employee of the RMS he was being paid $38.00 per hour and was now charging $70.00 per hour in his own business [T92].
In fairness to the plaintiff, he did point out that whilst employed by the RMS he was being paid back-to-back whereas as a self-employed driving instructor, there were gaps between sessions.
The cross-examination of the plaintiff then turned to the question of the accident. The version of the accident provided to Dr Kam was read to the plaintiff. There was an obvious misunderstanding between the plaintiff and Dr Kam in that Dr Kam recorded that the plaintiff said that he tried to reach out with his leg to control the brake pedal. He readily agreed in cross-examination that he could not have done that and denied that he told Dr Kam that he had. The photograph of the subject vehicle (Exhibit 2) makes it clear that this could not have occurred.
More relevantly, however, it was put to the plaintiff that he took control of the steering wheel “because of something (he) thought was about to happen”. The plaintiff agreed with that statement.
The following evidence involved a description by the plaintiff of the movement of his hands to the steering wheel in order to re-direct its movement. The effect of his evidence was that he initially grabbed the inside top of the steering wheel with his right hand pulling the wheel to its left before steering the vehicle to the right again. He stated:

Pulled to the left and needed to steer back to the right, that was when the driver let go of the steering wheel.
[T102.30].

In an attempt to understand the involvement of the plaintiff and the first defendant in the movement of the vehicle after the plaintiff perceived the risk of a collision, Senior Counsel for the defendants carefully explored their respective roles.
The plaintiff agreed that the first defendant’s hands came off the wheel once he started to steer the vehicle. It was his movement of the steering wheel that steered the vehicle through the roundabout. It was his moving of the steering wheel that directed the movement of the car. He was certain that he used both hands to steer the car through the roundabout.
In terms of the position of the vehicle, the plaintiff told the Court that there was no obvious change to the speed or movement of the vehicle and that the first defendant’s foot remained on the accelerator. Subject to that, he agreed that the only input into the movement of the vehicle was through his own control of the steering wheel [T106.49-107.1].
The plaintiff then gave evidence that, upon returning to the depot, he later commenced another test in the 3.30pm time slot. He could not recall but assumed that that test ran its full course before returning to the depot.
Senior Counsel for the defendants tried to pin down the plaintiff as to the period of time between the vehicle passing through the roundabout when the injury is said to have occurred and the plaintiff getting out of the car following the second test. The plaintiff thought that it was in the order of 40 – 45 minutes.
Finally, he gave evidence that he had a good reputation on the Central Coast as a driving instructor. He does all of the driving lessons and his wife, who is a qualified driving tester but not instructor, does some test simulations which are non-instructional.
Overall, I found the plaintiff to be a reliable witness. Although he was less than frank concerning his discharge from the Army, it was obvious that he was trying to put the best gloss on it. In his account of what occurred leading to the injury, I considered his evidence to be credible and consistent with contemporaneous accounts. There was a discrepancy between his evidence of his condition in the first few months compared with the notes of his GP. That does not cause me to reject him as an honest witness. Given the passage of time (six years) one would expect some lack of precision with his evidence being based on his recollection or impression rather than specific references in clinical records.

Lisa Michelle Sullivan

Mrs Sullivan is the plaintiff’s wife and lives with him at Fishing Point on the Central Coast of New South Wales. She describes her involvement in her husband’s business and said that she ran the office and phone calls, taking bookings as well as doing test simulations. She currently uses a bookkeeper but is “learning the ropes”.
In terms of the plaintiff’s pre-accident health, Mrs Sullivan said he was very active and very sporty. She was aware of his motor cycling activities including the fact that he had suffered injuries whilst riding.
After the birth of their sons in 2006 and 2009, Mrs Sullivan described the plaintiff as being “a very hands-on Dad”. Mrs Sullivan was an emotional witness.
She provided some evidence as to her work experience. She confirmed that she was not qualified as a driving instructor but that she was keen to undertake the four day course in order to obtain the Certificate which would permit her to work in that capacity. Apparently, the cost of the course presently was prohibitive.
Mrs Sullivan described how prior to the accident she worked on a permanent part time basis working full time hours. She commenced work at 7.30am and got home at 6.00pm. She described that, prior to the accident, her husband would clean the house, prepare the evening meal and bathe the children. She said that when she returned from work on a Saturday the vacuuming would be done (presumably by her husband) and that he would have done the lawns.
On an average day prior to the accident, the plaintiff would drive the children to before-school care and he would pick them up. He finished his job at 4.27, as he was part of the “relief pool team”.
Mrs Sullivan said that her husband loved to cook, did not mind vacuuming and loved doing the lawns. He also used to participate in the family shopping, lifting heavy groceries and the like.
Her evidence was that all of that changed following the subject accident. She stated:

He couldn’t do anything anymore, he struggled. He tried – every day he was taking heavy painkillers just to get through his days. The kids loved piggy backs and things, he couldn’t even do things like that. I took over the lawns, whipper-snipping and mowing. I went – started going shopping by myself and taking care of the kids by myself.
[T145.31-36].

Mrs Sullivan went on to describe how her husband tried to vacuum a couple of times but “couldn’t get very far”.
Generally, since the subject accident, Mrs Sullivan said that there were no times that he seemed better than others. He never got back to being physically the man she had known in the early years.
Mrs Sullivan described how she would get home and there would be no sign of any domestic activities having been undertaken. The plaintiff was short with the children and did not engage physically with them.
In terms of the plaintiff’s current work, Mrs Sullivan agreed that he was doing more lessons now than he was a year ago “because we’re in a financial collapse”. She described his condition upon returning home from work as being repressed, not engaging in conversation and usually slouching over the lounge to try to stretch his back out.
In terms of her own employment with the RMS, Mrs Sullivan took a redundancy whilst she was at Wallsend. Apparently, she was offered a job at Warners Bay but was unable to take it up because of family demands. That was in December 2015.
She described the plaintiff as being withdrawn and depressed.
Mrs Sullivan was cross-examined by Senior Counsel for the defendants.
She told the Court that she first learned of her husband’s injury the afternoon it is said to have occurred. It was her observation and recollection that her husband was in extreme and continuous pain. She agreed that the pain continued without any easing right through to the present day. She denied witnessing any days where he was feeling any better. This is plainly at odds with the treating doctor’s notes but perhaps represents the impression of a wife who has been dealing with his condition on a daily basis. It does, however, suggest some exaggeration but I do not believe that she was deliberately intending to mislead the Court.
Mrs Sullivan confirmed her evidence-in-chief that the reason she took the redundancy which was offered by the RMS was because of demands placed upon her by children and the plaintiff.
Mrs Sullivan was unable to recall any time at the beginning of 2012 when the plaintiff was not having any problems at all with his back. She maintained that he was “always in pain”. When asked why then in 2012, the family purchased a new house with much larger grounds Mrs Sullivan replied “it was my dream” [T164.12]. She was unable to agree with the proposition that the land area of the new property was nearly four times the size of the Sydney property in which they lived at the time of the accident but agreed that a lot more maintenance work was required. She accepted that they had purchased a ride-on mower and stated that she only saw her husband use it on one occasion.
They also bought a robotic vacuum cleaner which operated without manual input and saved some of the vacuuming work.
The witness gave some confusing evidence about whether or not her husband was capable of walking to the local park or walking around the park. In any event, clearly the impression she intended to create was that he was limited in walking.
The witness was cross-examined about the plaintiff’s pre-accident motor cycle accident. Her answers demonstrated a poor recollection.
In terms of the future, Mrs Sullivan was adamant that she would do the extra training required to become an instructor and when there are days when the plaintiff is feeling pain she would be able to do some of the lessons.
In terms of the business’ current operations, Mrs Sullivan said that her husband is currently working much longer hours than he has ever worked before.
Mrs Sullivan presented as a witness sympathetic to the plaintiff, as one might expect, but also as somebody with a poor recollection of significant events including the onset of symptoms following the subject accident. This may be explained by the passage of time. I found her to be an honest witness.

The Plaintiff’s Medical Evidence

The plaintiff tendered a bundle of documents (Exhibit B) comprising some 59 categories of documents. Many of the reports go to the question of causation and/or credibility and have been dealt with, to the extent relevant, in the analysis of the plaintiff’s evidence above. My focus, instead, will be on the expert medical evidence.

Professor Ghabrial

Professor Ghabrial is an Orthopaedic and Spinal Surgeon. The plaintiff relied upon five reports (commencing at page 1 of Exhibit B). Professor Ghabrial first saw the plaintiff on 22 October 2014. At that time, the plaintiff gave a history of an injury to his low back at work when he was twisting and reaching to take control of a steering wheel on a motor vehicle during a driving test on 13 October 2011. Professor Ghabrial was informed that the plaintiff suffered severe low back pain radiating to the left leg and that conservative treatment made no difference to his symptoms. I have considered the contrary evidence on this question above. He recorded that the plaintiff was referred to Dr Kam who performed an L5/S1 disc excision on 8 May 2012. The plaintiff reported improvement of his acute symptoms.
Professor Ghabrial noted that the plaintiff’s symptoms increased over the next year or so and that further treatment in the form of steroid injections and pain management was required. He was referred to Dr Simon Tame for pain management and a trial spinal cord stimulator was provided.
Professor Ghabrial examined the available radiology. The MRI scan of 22 November 2011 showed a large left L5/S1 disc protrusion with extrusion and compression of the left S1 nerve root.
The MRI scan of 15 May 2013 showed some swelling of the right S1 nerve root but no evidence of any recurrent disc protrusion. That is, there is no objective evidence of any change in the radiological presentation between 11 November 2011 and 13 May 2013.
From the history provided by the plaintiff, Professor Ghabrial accepted that the plaintiff’s employment, specifically the incident in October 2011, was the main contributing factor to his condition. He expressed the opinion that the plaintiff remained restricted indefinitely regarding activities involving heavy lifting, excessive bending and excessive twisting as well as sitting for lengthy periods.
In a second report of the same date (22 October 2014), Professor Ghabrial assessed whole person impairment at 17%. That was revised in a subsequent report dated 5 January 2015 by reference to the DRE Category III giving a combined impairment of 11%.
Professor Ghabrial again examined the plaintiff for the purpose of a third report dated 3 May 2017 (Exhibit B, page 7). By way of update, the plaintiff informed the examiner of the following:

a spinal cord stimulator was implanted by Dr Tame in November 2014;

he has continued with symptoms in his back in the form of pain, stiffness and weakness involving his back and left leg;

he requires assistance from his wife and son for activities on average five to six hours per week;

he was made redundant in 2015 and currently works on a part time casual basis self-employed as a driving instructor, a job which he was performing with difficulties.

Professor Ghabrial repeated his opinion that the plaintiff suffered an injury to his lower back on 13 October 2011 when he was twisting and reaching to take control of a steering wheel in a motor vehicle during a driving test. He thought that the plaintiff would require ongoing treatment in the form of physiotherapy, medications and regular visits to his pain specialist, costing in the order of $3,000.00 per year.
Professor Ghabrial expressed the opinion that the plaintiff will require domestic assistance on average of five hours per week for activities he is not able to perform.
In terms of is employment, Professor Ghabrial expressed the view that the plaintiff’s working capacity was reduced and at best, it will be another 10 years or so until he will find it extremely difficult to carry on with that work.
In his fifth and final report dated 11 August 2017, Professor Ghabrial reviewed his own opinion after considering the reports by Dr Barrett and Dr Dalton and the clinical notes of Dr Vyas, Professor Ghabrial then expressed the following views:

the incident on 13 October 2011 produced the disc protrusion involving the S1 nerve root;

the incident in March 2012 resulted in an aggravation of his symptoms, however, the disc was already markedly extruded;

he would still have had the surgery in May 2012 even if the incident of March 2012 had not occurred;

Professor Ghabrial rejected Dr Barrett’s assessment as to the contribution of the accident and constitutional factors to the plaintiff’s condition noting that the MRI scan of November 2011 showed no evidence of degenerative changes or any other abnormalities; and

the incident of October 2011 produced 80% of impairment and the incident of March 2012 produced 20% of the impairment.

Professor Ghabrial was not cross-examined. I consider his opinion to be rational and cogent.

Professor Bolin

Professor Bolin, from the Gastrointestinal and Liver Clinic at Randwick in Sydney, assessed the plaintiff on 5 May 2015. His focus was the history of Crohn’s disease and its symptoms. He noted a history which can only be considered false that the symptoms referrable to the gastrointestinal tract began one month after injury. Other contemporaneous documents incontrovertibly establish that is not so.
Professor Bolin went on to diagnose gastro-oesophageal reflux and dysmotility and irritable bowel syndrome which he attributed to the work injury in addition to the side effects of the medications that had been taken for pain relief.
Notwithstanding the fact that the expert was not cross-examined on his opinion, I do not accept it. The plaintiff’s clinical history upon which the opinion is based is flawed.

Dr Horace Ting

Dr Ting is an Occupational Therapist/Vocational Assessor. He assessed the plaintiff on 18 May 2017 between 9.30am and 2.15pm. Dr Ting took a history of the accident which has, in general terms, consistent with the plaintiff’s evidence.
Dr Ting performed a wide-ranging examination of the plaintiff administering a number of clinical tests. I do not intend to deal with the detail of that examination. It is sufficient to note that Dr Ting formed the opinion that the plaintiff was limited by the restricted active ranges of motion of the lumbo-sacral spine, reduced upper body function, reduced postural tolerance in sitting and standing, reduced tolerance to dynamic self-paced and paced activities and reduced physical stamina. He also stated that his driving tolerance was reduced.
In addition, Dr Ting expressed the opinion that the plaintiff suffered from psychological difficulties and persistent pain that would impact negatively on his functional work capacity, self-care and personal hygiene, social and recreational activities, ability to travel, social functioning, concentration, persistence and pace and adaptability.
It is plain that Dr Ting considered the plaintiff’s work capacity to be compromised and that his competiveness in the open labour market was reduced. He noted, however, that the plaintiff demonstrated a physical capacity to perform sedentary work for four to five hours per day, five days per week.
Dr Ting went on to identify a number of alternate job prospects including customer service representative, earning approximately $1,000.00 per week and a medical assistant, earning approximately $900.00 per week. He identified those jobs as accommodating the plaintiff’s transferrable skills, vocational aptitudes and functional capabilities.
Dr Ting expressed the opinion that the plaintiff is unable to perform his current duties on a full time basis without suffering aggravation of his condition. He suggested a number of rehabilitative measures that may improve his capacity to remain in employment. By a mathematical process not readily apparent from his report, Dr Ting expressed the chance of the plaintiff gaining new employment as having been reduced by 27%.
He expressed the opinion that the plaintiff would find it increasingly difficult to secure and maintain employment as he ages and the unemployment periods between jobs could lengthen. The plaintiff’s working life expectancy would be reduced by at least five years.
Dr Ting was not cross-examined.

Susie Mullen, OT

Ms Mullen is an Occupational Therapist who was retained by the solicitor for the plaintiff to assess the plaintiff and make recommendations as to his need for assistance. The assessment took place on 29 June 2017 in the plaintiff’s home. She took a history that prior to the accident the plaintiff was independent in all activities of daily living and share domestic tasks with his wife around their respective work hours. It is stated “He was responsible for lawnmowing, gardening, car cleaning and home maintenance tasks”. This is at odds with the evidence of Mrs Sullivan who seemed to suggest by her evidence that the plaintiff was the primary domestic care provider.
Ms Mullen noted that the Sullivan family moved into their current address in December 2012. As noted elsewhere, it is a significantly larger property than that which they occupied at the time of the incident. Ms Mullen recorded that the plaintiff and his wife stated that they would not have bought their current house if they knew that six years after the accident the plaintiff would still be experiencing the difficulties arising from the accident.

In paragraph 7.9 of her report, Ms Mullen summarised the gratuitous assistance provided to the plaintiff commencing 13 May 2011 to 29 June 2017. The amount of assistance provide varied between 10.9 hours per week up to 24.3 hour per week. This is greatly in excess of that reported by the plaintiff to Professor Ghabrial (5 to 6 hours per week) and Professor Ghabrial’s opinion as to same (5 hours per week).
The author then undertook an assessment of the current and future needs for assistance by the plaintiff. She recommended domestic assistance of 4.75 hours per week at a commercial cost of $33.00 per hour. Gardening, home and car maintenance of 1.5 hours per week at a cost of $60.00 per hour, handyman assistance of 0.25 hours per week at a cost of $60.00 per hour and car washing at a cost of $35.00 per week. She also made a number of recommendations in relation to mattresses, equipment and the like.
Although Ms Mullen was not cross-examined, my view is that her recommendations are excessive and do not reflect the degree of incapacity suffered by the plaintiff or his needs, particularly in relation to the past.

Dr Alan Home

Dr Home is a Consultant Physician who was engaged by QBE, the insurer for the RMS. He saw the plaintiff on 18 September 2012, almost a year after the accident occurred. Given the age of Dr Home’s report and the events which have occurred since, it has been considered with caution.
It is of some significance, however, that four months post-surgery Dr Home recorded that the plaintiff had made a good recovery from the left-sided radicular complaints although did report some residual numbness of the left foot and mild weakness in the left calf. Dr Home expressed the opinion that the plaintiff was fit to perform full time work of a sedentary, semi-sedentary and light manual nature as long as he avoided certain manoeuvres.
In relation to causation, Dr Home expressed the opinion that the plaintiff’s ongoing symptoms reflected the injury sustained on 13 October 2011. The reasoning underlying that opinion was not exposed in his report.

Dr Vidyasagar Casikar

Dr Casikar is a Neurosurgeon who examined the plaintiff on 4 April 2014 at the request of the workers compensation insurer. He diagnosed an L5/S1 disc prolapse with post-operative neuropathic pain. He related those conditions to the incident of 13 October 2011, with perhaps some aggravation in March 2012. Dr Casikar expressed some reservation about the plaintiff returning to normal duties, despite his desire to do so.

Other Medical Reports and Records

The remainder of the documents in Exhibit B are produced by either treatment providers or relate to Medical Certificates issued to WorkCover and the like. As stated, I do not intend to embark upon any detailed analysis of those matters save to the extent to which they bear upon the question of causation which I will consider below.

The Defendants’ Medical Evidence

Dr Seamus Dalton, Rehabilitation Physician and Sports Physician

Dr Dalton reviewed the medical evidence. He referred to the plaintiff’s attendances upon Dr Vyas, referred to in detail above.
After reviewing the material, Dr Dalton reached the diagnosis that the plaintiff had pre-existing degenerative lumbar disc disease and probably had a pre-existing L5/S1 disc protrusion at the time of the subject accident. My first reaction to those opinions is that they are baseless as there was nothing to indicate any history or disease either in subjective complaints or objective investigations. Dr Dalton continued:

However, I could find no contemporaneous records to indicate that Mr Sullivan had experienced any previous symptoms or disabilities relating to the L5/S1 disc pathology and following the incident on the 13 October 2011 he developed symptoms in keeping with mild radiculopathy and probably aggravation of the underlying L5/S1 disc protrusion. His level of pain and disability at that time makes it unlikely that he suffered an acute disc extrusion at that time but clearly the incident precipitated the onset of the neuropathic symptoms and back pain and that is in keeping with the mechanism of injury.

I find Dr Dalton’s opinion unconvincing and inconsistent with the known evidence. Dr Dalton appears to have adopted a conclusion that the accident did not cause the disc pathology and worked backwards in an attempt to justify that finding. The primary justification appears to be that the plaintiff’s level of pain and disability at the time of the incident is inconsistent with an acute disc extrusion as demonstrated in subsequent radiology.
Dr Dalton went on to find that the plaintiff suffered a “further aggravation of his symptoms” in November 2011 with a “subsequent significant aggravation following another work related incident in March 2012”. This appears to be based upon the clinical notes which suggest that the plaintiff reported some improvement on 27 October 2011 but by 2 November 2011 reported worsening of symptoms which then continued.
Dr Dalton diagnosed ongoing non-specific mechanical low back pain with persistent neuropathic symptoms affecting his left lower extremity. He suggested that the plaintiff would require occasional review to manage his spinal cord stimulator and some reducing quantity of analgesia.
In terms of work, Dr Dalton was of the view that doing core stability exercises and postural endurance exercises will permit the plaintiff to increase his work hours in the future. He stated that the plaintiff had the potential to resume full time work or alternatively work in a full time capacity in an office-based or semi-sedentary role.
Regarding domestic assistance, Dr Dalton noted that the plaintiff relied upon his wife for most domestic activities but expressed the opinion that the plaintiff should be able to perform many of those tasks himself. He stated that from a physical stand point the plaintiff did not require assistance with normal domestic and household activities. He thought that, at most, the plaintiff may require assistance with heavier aspects of gardening and home maintenance and suggested one hour a fortnight.
Dr Dalton assessed whole person impairment at 10%.
In his report dated 2 November 2016, Dr Dalton was specifically asked to address the question of causation of the L5/S1 disc protrusion. Relying upon the GP’s contemporaneous clinical notes, Dr Dalton observed that the plaintiff’s initial presentation responded well to conservative treatment which, together with the Doctor’s clinical examination at the time suggested that the problem was an aggravation of an underlying L5/S1 disc protrusion. He stated:

In my opinion it is unlikely that he suffered an acute disc extrusion at the time of the MVA and the probability is that his symptoms would have continued to respond to conservative management.

Dr Dalton said that the plaintiff’s condition had resolved by 20 February 2012 only to be aggravated by the incident on 1 March 2012.
He stated:

On the balance of probabilities I believe that had Mr Sullivan not suffered the further flexion/extension injury on the 1 March 2012 it is unlikely that he would have required the L5/S1 micro-discectomy which was undertaken in May.

He further stated:

Given that he appears to have largely recovered from the effects of the initial injury which he sustained in October 2011 it seems probable that the subsequent incident in March 2012 was more significant and largely responsible for the subsequent need for surgery. However, both accidents have contributed to the onset of symptoms.

Notwithstanding those comments, Dr Dalton acknowledged that the material exacerbation at L5/S1 was present prior to the incident in March 2012.
I do not accept Dr Dalton’s opinion, except that, even on his findings, there is some limitation in work and a need for domestic assistance. In relation to the latter, I am mindful of the comments of the New South Wales Court of Appeal in Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty td v DM & BP Wiskich Pty Ltd [2013] NSWCA 443.

Dr Ian Barrett

Dr Barrett is an Orthopaedic Surgeon who has produced two reports in respect of the plaintiff following a single examination on 14 November 2016.
In his first report dated 18 November 2016, Dr Barrett referred to the clinical notes of the plaintiff’s treating general practitioner and concluded that the history of injury was consistent with his complaints. In particular, Dr Barrett stated:

Mr Sullivan experienced immediate pain in the left hamstring region following a sudden twisting movement whilst attempting to gain control of the steering wheel in the car whilst undertaking a driving assessment.

Further, Dr Barrett stated that:

As a result of the incident on 13/10/2011, Mr Sullivan has sustained an L5/S1 disc protrusion/extrusion involving the left S1 nerve root. He has required multiple procedures as discussed under “History”. He continues to experience non-specific mechanical lumbar back pain with referral of pain to his left lower extremity in association with sensory disturbance in an S1 distribution. His presentation is consistent with the investigative information provided including the pre-operative MRI scan and the post-operative nerve conduction studies.

When asked specifically what the relationship was between the plaintiff’s complaints and the incident in question, Dr Barrett unhesitatingly stated that the plaintiff’s complaints were causally related to the incident.
In terms of employment, Dr Barrett expressed the view that the plaintiff would be capable of increasing his hours from four hours a day to eight hours a day.
Regarding domestic assistance, he stated that the plaintiff appears to require four hours domestic assistance per week and that need will continue indefinitely.
Dr Barrett’s report dated 2 February 2017 followed a request by the solicitors for the defendant for a supplementary report. He was provided with the reports by Dr Dalton dated 12 August 2016 and 2 November 2016.
Without providing any reasons, Dr Barrett agreed with the opinions of Dr Dalton that it was more likely than not that the plaintiff had pre-existing degenerative changes affecting his lower lumbar spine without symptoms prior to the subject incident.
This opinion is completely at odds with the previously expressed opinion by Dr Barrett. He has failed to provide any reasons for his change of opinion or his acceptance of Dr Dalton’s opinion.
Dr Barrett went on to state:

In my opinion, it is more likely than not that he did sustain a significant injury at the L5/S1 level resulting in either a new L5/S1 disc protrusion/extrusion or a significant aggravation of a pre-existing condition. The subsequent injury in March 2012 would also have aggravated that condition.

It is not clear what Dr Barrett is in fact talking about in the first sentence of that extract. I assume that he is referring to the incident of 13 October 2011. This further opinion appears to be at odds with his acceptance of Dr Dalton’s view that there was a pre-existing condition. He raises as a possibility that either there was a pre-existing condition or there was a new disc protrusion suffered as a consequence of the injury. His reasoning is completely unexposed and in some respects defies any rational examination.
The absurdity of Dr Barrett’s reasoning continued. He was asked to attribute causation to three incidents namely the subject accident, the incident in March 2012 and an incident in May 2012. Despite stating that “contrary to your referral letter dated 03/01/2017, I can find no reference in any of the documentation provided concerning a third incident in May 2012”, the Doctor attributed 10% of the plaintiff’s condition to that unknown incident on the basis that the plaintiff’s condition was due to pre-existing constitutional though asymptomatic degenerative changes. In my opinion, that view is quite irrational and without any justification. It demonstrated the unsatisfactory approach by Dr Barrett to his second report.
In relation to the other two known incidents namely that of October 2011 and March 2012, Dr Barrett attributes 70% of the plaintiff’s condition to the first incident, the subject of these proceedings and 20% to the second incident.
Despite Dr Barrett’s attempt to accommodate the opinion of Dr Dalton, his opinion supports a finding that the plaintiff’s condition was caused by the subject incident.

Other Documents Relied Upon by the Defendants

The defendants tendered a second bundle of documents (Exhibit 2) containing some 32 categories of documents which were voluminous. A lot of the material tendered was not referred to in addresses or at any time during the trial. I have, nevertheless, read the material.
The first set of reports are from Dr Abi-Hanna and pre-date the accident. Dr Abi-Hanna was the plaintiff’s treating Gastroenterologist in relation to his Crohn’s disease and related illnesses. The contents of those reports are unremarkable and generally consistent with evidence otherwise sourced.
Three additional reports from Dr Abi-Hanna were tendered by the defendants. The first, an endoscopy report dated 18 September 2014 which was generally unremarkable save for an iron deficiency.
The second report, dated 23 September 2014 relates to a consultation with Dr Abi-Hanna in his rooms, presumably following the endoscopy. The gastroscopy and colonoscopy were described as “essentially normal”. There was a reference to iron deficiency which may have been caused by Voltaren but the report is otherwise of no assistance.
For no apparent or any forensic reason, the defendants also tendered a report by Dr Chow dated 28 June 1999. Whilst I have read the report, I do not consider it to be of any significance or relevance.
The defendants tendered a pathology report dated 2 July 2001, more than two years before the accident. Again, the purpose of this tender is unclear.
Next, there are pathology reports by Dr Enno dated 8 May 2006 and Dr Henderson dated 16 February 2009. Neither are probative of any fact in issue in these proceedings. The same can be said of a pathology report by Dr Tschuchnigg dated 18 September 2014.
The Court’s time was further wasted by the defendants tendering and seeking to rely upon the clinical records of the Valley Plaza Medical Centre. Whilst they were printed on 23 December 2015, the last prior consultation with the plaintiff was 7 May 2010, 18 months before the accident. The only possible relevance is an entry of 24 May 2010 where the plaintiff attended upon a GP who recorded a motor cycle accident on the Friday afternoon. The plaintiff complained of bruises to the left hip, left knee, neck pain and in between shoulder blades. The examination was unremarkable and the plaintiff was prescribed Nurofen. Why this was tendered in circumstances where there was no relevant fact in issue pertaining to that matter is not at all apparent.
The next category of documents in Exhibit 2 are the progress notes of the Wattle Grove Family Medical Practice. The last entry of any attendance by the plaintiff on any doctor at that Centre was 6 April 2009 which related to a treatment of the plaintiff’s child.
The defendants also tendered and sought to rely upon documents produced by the Department of Defence about which the plaintiff was cross-examined. They indicate that in the period 2-3 August 1997 and 27 September 1997 he was charged with the use of cannabis. Included in that material is a Minute signed by the plaintiff dated April 1998 in which he acknowledged his guilt in relation to the drug offences and indicated that he did not intend to submit any representation against discharge. He sought a waiver of the three month period in relation to discharge and requested that he be discharged in Darwin on 17 May 1998. I have referred to the relevance of this material in considering the plaintiff’s evidence, above.
The defendants also sought to rely upon the records of the Waratah Medical Services at Cooranbong. They relate to the plaintiff’s treatment by GPs after he moved from Sydney to the Central Coast. No reference was made to the documents by the defendants and they seemingly bear no relevance in relation to any matter in dispute in these proceedings.
The remainder of the documents in Exhibit 2 have, where relevant, been referred to in the analysis of the plaintiff’s evidence, above.

submissions re liability

The defendants’ address focussed upon the definition of driver in s3 of the Act and the restrictions on the application of the Act under s3A.
In relation to the definition of driver in s3, the defendant submitted correctly that it is “an inclusive definition” and that notwithstanding the fact that the first defendant occupied the driver’s seat, the driver at the time of injury was in fact the plaintiff. The result would be that he has no entitlement to claim damages under the Act.
The Court was taken to the decision of the Western Australian Supreme Court of Appeal in State Government Insurance Commission (SA) v Sweeny (1989) 52 SASR 139 (“Sweeny”).
The facts in Sweeny involved a passenger who suffered injury as a result of a motor vehicle accident following the plaintiff grabbing and manipulating the steering wheel of the vehicle. The Court of Appeal held that the passenger was “an insured person” within the meaning of s113 of the Motor Vehicles Act 1959 and a driver of the vehicle at the critical time.
Whilst the decision relates to a different Act to that which is currently under consideration, there are some general principles which may assist in determining the issue.
Counsel for the appellant directed the Court’s attention to a decision of Lord Widgery CJ in R v McDonagh [1974] QB 448 at 451C where it was stated:

The Act does not define the word “drive” and in its simplest meaning we think that it refers to a person using the driver’s controls for the purpose of directing the movement of the vehicle.

Of course, the New South Wales Act under consideration does provide a definition of driver which, as noted, relevantly is “a person for the time being in charge of a motor vehicle”.
In considering the matter, Legoe J had regard to a number of authorities which established certain propositions, including the following:

it is a question of fact whether a motor vehicle is being driven by a particular person or not;

the clear purpose and intention of the Act under consideration in that case warrants a liberal interpretation to be given to the liability provisions. I am not certain that that same proposition is applicable in the context of this Act;

the simple meaning of the word “drives” or “driving” is a starting point for considering any factual situation;

a vehicle may have more than one driver at the same time;

the mere sitting in the driver’s seat cannot be the test, nor can the mere intention of driving the vehicle be a conclusive test as to whether, in fact, a person is the driver or not. It is the control of the vehicle to the relevant degree which has universally been adopted as a criterion for determining whether, in fact, a person was a driver.

(Pp143-144).

A consideration of those principles led Legoe J to dismiss the appeal, upholding the conclusion of the primary judge that the passenger was in fact the driver at the time of the injury suffered by the plaintiff. The insurer’s appeal was dismissed. The two other Judges of Appeal agreed.
Before moving from Sweeny, it is worth noting a comment made by Prior J in which he had picked up what was said by the Trial Judge in referring to a matter of R v McDonagh [1974] QB 448. The Trial Judge stated:

It had once been thought that the test of driving was to determine whether or not the person controlled the means of propulsion of the vehicle. The Court of Appeal held that such was not the test. It said (at 451):
The essence of driving is the use of the driver’s controls in order to direct the movement, however that movement is produced.

The provisions of the Act require a determination as to who the driver at the time the injury was suffered. This issue arises only because of the plaintiff’s act in grabbing the steering wheel in order to steer the vehicle to the left. I find that at the time the injury was suffered, the plaintiff had his right hand in an under-grip on the steering wheel and was twisting in a rightward motion to grab the steering wheel with his left hand in order to steer the vehicle to the left. It follows, that prior to grabbing the steering wheel with his left hand, his control over the direction of the vehicle was tenuous at best.
At that time the following factors are relevant to whether or not the first defendant was the driver of the vehicle:

she was sitting in the driver’s seat. This is relevant but not determinative;

until the plaintiff took over the steering with both hands, the first defendant had control of the steering wheel of the motor vehicle;

the first defendant, at all times, had control of the momentum or acceleration/deceleration of the vehicle; and

the first defendant had control over the braking of the vehicle by using the foot brake.

The first defendant was the driver of the vehicle at the time the injury was suffered by the plaintiff. Further, I find that the injury was caused by the fault of the first defendant in the use or operation of the vehicle. Further, I find that the injury was a result of and was caused during the first defendant’s driving and also by a dangerous situation caused by the driving of the vehicle (s3A(1)(d) or s3A(1)(a)). The relevant driving was the first defendant’s failure to properly steer the vehicle. The dangerous situation was the fact that the vehicle was travelling straight and would have collided with the vehicle(s) in lane 2. When the plaintiff was injured he was the passenger in the process of taking control of the steering of the vehicle. It is not necessary to determine whether, after the injury suffered and the plaintiff had complete control of the steering of the vehicle, he was then the driver. At that time, the injury had already been suffered.
The first defendant’s conduct was the immediate, proximate and direct cause of the plaintiff’s injury.
The present circumstances are to be distinguished from other cases where an injury is suffered by a passenger after he or she became the person in control of the vehicle. Specifically, this case can be distinguished from Sweeny where the plaintiff was the driver at the critical time.
I find that the plaintiff is entitled to succeed in his claim for damages against the defendants under the Act.
To express my conclusions in the terms required by the Civil Liability Act, I find:

the plaintiff suffered harm, being personal injury;

the personal injury to the plaintiff resulted from the negligence of the first defendant;

the relevant breach was the first defendant’s failure to properly steer the vehicle into and through the roundabout;

the first defendant’s conduct gave rise to a foreseeable risk of harm, namely by collision with the vehicle(s) in lane 2;

the risk of harm was not insignificant;

in all of the circumstances, a reasonable person in the position of the first defendant would have safely steered the vehicle through the roundabout;

had that precaution not been taken then harm to the plaintiff was probable;

the harm suffered by colliding into the side of one or more vehicles was most probably serious;

the burden of taking the precaution of safely steering the vehicle was minimal;

driving a motor vehicle safely on a public road carries a high social utility;

the negligence of the first defendant in failing to safely steer the vehicle was a necessary condition of the occurrence of the harm to the plaintiff; and

finally, it is appropriate for the scope of the first defendant’s liability, to extend to the harm caused to the plaintiff.

Accordingly, I find that the first defendant breached her duty of care to the plaintiff
Contributory negligence is alleged in the Further Amended Defence on the basis that the plaintiff failed to take reasonable care for his own safety. In considering this question, the Court is to apply the same principles as is applied to the question of breach of duty of care generally (s5R Civil Liability Act 2002). That requires a consideration of the general principles of duty of care set out in s5B of the Civil Liability Act 2002.
In respect of those matters, I find that:

the risk of injury to the plaintiff by his reaching for the steering wheel was not foreseeable;

the risk was insignificant;

a reasonable person in the position of the plaintiff would have acted in the same manner in which he did, having regard to all of the surrounding circumstances, including the relationship between the plaintiff and the first defendant.

Further, in considering what a reasonable person would do, I find that, had the plaintiff not steered the vehicle to the left, then a collision would have occurred between the first defendant’s vehicle and the vehicle(s) in lane 2. I am comforted in making these findings given that the first defendant was not called to give evidence and her failure to do so was in no way explained.

DAMAGES

The Plaintiff’s Claim

MFI 2 sets out the plaintiff’s Schedule of Damages in the following terms:

Non-economic loss

$275,000.00

Past Out-of-Pocket Expenses –

• Accounts paid by workers compensation insurer

$109,822.00

• Medicare charge

$212.65

$110,034.65

Future Out-of-Pocket Expenses –

• Medication pa

$4,160.00

• GP visits – 12 per annum @ $70 each

$840.00

• Specialists attendances pa

$900.00

• Physiotherapy – once per week @ $85.00 per visit

$4,420.00

• Gym membership per annum

$750.00

• Equipment purchase $510 pa

$510.00

$11,580.00

Allow for life expectancy

$212,113.00

One-off charge for supervised physical conditioning program

$650.00

$212,763.00

Past Economic Loss

• Paid by workers compensation insurer

$16,366.60

• Period 24.10.15 – 17.10.17

• $700 pw for 103 weeks

$72,100.00

$88,466.60

Future Economic Loss

• Allow $670.00 a week for 27 years – after vicissitudes

$466,000.00

• Plus allow for total loss of earning capacity for the last 5 years

$36,500.00

$482,500.00

Past Voluntary Care

Allow 2 hours a day for the past period of 312.4 weeks @ $32.50 per hour

$142,100.00

Future Commercially Sourced

1 ½ hours a week – allow 40 years

$62,400.00

Total

$1,373,264.25

The Defendants’ Position

In addition to oral submissions on the question of damages, the defendants’ also relied upon Supplementary Submissions dated 9 November 2017.
In relation to out-of-pocket expenses, the defendants identified the two sources as being in respect of payments by Medicare and the workers compensation insurer. Of the amount paid by Medicare ($212.65), $160.35 related to gastric problems and $52.35 related to the treatment of back related conditions.
In respect of the payment by the workers compensation insurer, the defendants submitted that the amount ($109,821.87) comprised the following:

$2,623.50 for psychological treatment;

$3,191.64 for pharmaceutical expenses;

$5,837.07 for treatment between the date of the accident and 1 March 2012;

$98,947.55 in respect of treatment received after 1 March 2012.

In relation to the psychological treatment, the defendants submitted that there was no evidence in support of any psychological injury resulting from the accident and that accordingly no amount should be allowed. I agree. No allowance is made.
In relation to the pharmaceutical expenses of $3,191.64, the defendants submitted that the treating records demonstrated that the plaintiff was prescribed medication for his back, gastric and psychiatric conditions. There was no information by which the Court could determine the amount attributable to each component. It was submitted that the figure should be apportioned equally between the three areas allowing $1,063.88 for the back injured in the subject accident. In the absence of evidence as to same, I propose to allow $1,000.00 in respect of pharmaceutical expenses due to the subject injury.
As for the distinction between the balance of treatment expenses prior to and after 1 March 2012, in view of the medical evidence which I have accepted, I find that the plaintiff is entitled to the full amount, that is, approximately $104,000.00.
The defendants’ Supplementary Submissions also advance a significant challenge in relation to the plaintiff’s claim for economic loss, which will be dealt with in that context below.

Assessment of Damages

Non-Economic Loss

I have had regard to the maximum set for non-economic loss pursuant to the Act. It is clear from the evidence of the plaintiff and his wife that he was badly affected by the injury sustained in the accident. I note, however, that in the initial periods there were times when the plaintiff was able to function well.
I have previously found that as a result of the accident the plaintiff suffered a large left L5/S1 disc protrusion with extrusion and compression of the left S1 nerve root, as revealed by the MRI scan of 22 November 2011. In making that finding, I rely upon the opinion of Professor Ghabrial and the defendant’s own doctor, Dr Barrett, to the extent described in the reasons above.
I allow $225,000.00 for non-economic loss.

Past Treatment Expenses

I have referred above to the dispute in respect of past treatment expenses. Based on the reasoning provided above, I have allowed $105,000.00 for past treatment expenses.

Future Treatment Expenses

In my opinion, the plaintiff’s claim for future treatment expenses is excessive. The claim of $11,580.00 per annum for life is without any justification, medical or otherwise. Whilst it is likely that the plaintiff will require medication and visits to his GP in addition to those which he previously had, there is no persuasive evidence to support the remainder of the claim.
The claim, as advanced for the duration of the plaintiff’s life expectancy exceeds $200,000.00.
In relation to future treatment expenses Professor Ghabrial opined that the plaintiff will require ongoing treatment in the form of physiotherapy, medications and regular visits to his pain specialist. Professor Ghabrial estimates that this will be in the vicinity of $3,000.00 per year. There is not any reasoning offered in support of such a substantial allowance or why it would be required for life.
Dr Ting opined that the plaintiff requires a minimum of one physical treatment per week such as physiotherapy and rehabilitation. Dr Ting estimated that the cost of treatment to one body part is $80 per session and that this should be reviewed regularly.
Dr Home examined the plaintiff on 18 September 2012 at which time he opined that the plaintiff would soon be able to progress to a home-based exercise regime for strengthening his core stabilising muscles. At that time, Dr Home also suggested that the symptomatic use of analgesia was reasonable, also stating that these requirements may diminish over time.
In respect of prescribed medications, Dr Casikar believed that Lyrica and Gabapentin were necessary to control the plaintiff’s symptoms. Dr Casikar went on to state that a trial spinal cord stimulator is the most appropriate form of treatment to control the plaintiff’s neuropathic pain due to his large disc prolapse. I note that a stimulator was subsequently inserted.
In the absence of clear, reasoned evidence in support of the amount claimed, I have allowed $25,000.00 for future out-of-pocket expenses.

Economic Loss Generally

In his first report dated 22 October 2014, Professor Ghabrial expressed the opinion that the plaintiff remained restricted indefinitely regarding activities involving heavy lifting, excessive bending and excessive twisting as well as sitting for lengthy periods. Obviously, his current employment would involve sitting for lengthy periods.
In his second report (dated 3 May 2017) Professor Ghabrial was more specific. He stated:

I believe that his working capacity has reduced. He works as a driving instructor and its [sic] best it will be another 10 years or so before he will find it extremely difficult to carry on with his work, if not before.
(Exhibit B, page 8).

I have already commented upon the report by Mr Ting, Occupational Therapist. He identified a number of transferrable skills which would permit the plaintiff to work in other fields of employment.
In terms of capacity, Mr Ting noted that the plaintiff “is limited by the restricted active ranges of motion in the lumbo-sacral spine, reduced upper body function, reduced postural tolerance in sitting and standing, reduced tolerance to dynamitic self-paced and paced activities and reduced physical stamina. His driving tolerance is reduced” (Exhibit B, page 29). What Mr Ting means by what is stated in that extract is unclear except that plainly he considers the plaintiff has a restriction in terms of his lumbo-sacral spine which would impact upon sitting, a relevant consideration given his employment.
Dr Home, Occupational Physician, also provided his opinion as to the plaintiff’s capacity for employment. In fact, he was asked specifically whether the plaintiff is fit for driver testing to which he replied:

Again, whilst Mr Sullivan may obtain sufficient recovery to cope with the physical requirements of driver testing (for long sitting, occasional twisting), he does face increased risk of aggravation of his known back condition in at least the short to medium term, and on that basis, redeployment is recommended.
(Exhibit B, page 67).

Dr Home’s report is dated 18 September 2012 and seems to have been superseded by known events such as the plaintiff’s successful return to driver testing. Given the age of the report by Dr Home, I do not place weight upon it.
Another report of some vintage is that by Dr Casikar, Neurosurgeon, dated 4 April 2014 (Exhibit B, page 70). At that time, the plaintiff was doing administrative work, working normal hours at a desk. Whilst Dr Casikar noted that the plaintiff wished to return to testing, the Doctor was unsure whether that was reasonable until his back is better controlled. The fact that the plaintiff has in fact returned to testing suggests that pain control has, to some extent at least, been achieved.
In the defendant’s camp an opinion was expressed by Dr Dalton, Rehabilitation Specialist as to any capacity the plaintiff may have for work. Dr Dalton noted that the plaintiff’s tolerance of prolonged sitting and driving appears to be the “main limiting factor” but that with more consistency in his doing his core stability and postural endurance exercise, he believes that he will be able to increase his hours at work. At the time of examination (10 May 2016) Dr Dalton considered the plaintiff fit to work as a driving examiner.
Whilst I have previously been critical of the report of Dr Dalton as to causation, it seems to me that his opinion in relation to capacity for employment generally reflects the pattern of employment that has occurred since the plaintiff was seen by Dr Dalton in 2016.
The defendant’s other expert, Dr Barrett, does not appear to provide any useful opinion on the question of capacity for work.
The only other source of evidence which provides some indication as to capacity comes from the plaintiff. He told the Court that he works seven days a week at the moment [T56.31]. When asked how he was coping with that amount of work he stated “not very well, I’ve increased my pain medication, and it’s putting a lot of stress on myself, my wife and my children. I don’t, I don’t cope physically well in the car. I do notice that my decisions are not as sharp as they need to be, being a, “driving instructor of early stage learner drivers”.
He told the Court that after he was made redundant in October 2015 his hours of work had gradually increased to what they were at the time of hearing in October 2017.
He was asked how he was at the end of a working day and stated:

Pretty flat. Once I have the Panadeine Forte to, to take care of the pain, I can’t have the Panadeine Forte through the day, doing this. I’m not, I’m not active, I’m not my normal self, I’m quite lethargic and a bit, a bit withdrawn.
[T58.30].

When asked whether he could continue working at this same level his reply was “not without having a significant incident” [T58.36].
The plaintiff was cross-examined about his participation in the business which he set up in 2015 (commencing at [T90]). He agreed that he was now charging $70.00 per hour compared to the $38.00 per hour he was earning at the RMS. Of course, that did not mean that he was earning that every hour of every day that he worked. There were gaps between appointments. He confirmed that he was now doing four to five lessons a day, six to seven days a week. That represents an income range of somewhere between $1,680.00 and $2,450.00 gross of expenses and tax per week. Overall, the plaintiff agreed with the proposition put to him that he had succeeded in establishing a successful business on the Central Coast. The plaintiff said that he had a good reputation [T120.26].
There was also some cross-examination as to the plaintiff’s tax returns after setting up his own business. Of course, any rational analysis of those documents was complicated by the fact that there are expenses included in the deductions which relate to some household or personal expenses. Further, the analysis is complicated by the fact that in the initial period, there would have been extraordinary set-up costs which would not replicate in subsequent years.
Cross-examination of the plaintiff on those documents was also made difficult by the fact that the documents had not been produced by him. It appears the documents were created by his accountant on information provided by his wife.
A better illustration of the success of the plaintiff’s business came through his booking calendar. That document revealed that the plaintiff was in fact frequently working seven days a week and up to seven lessons a day.
The plaintiff’s wife was cross-examined on the topic. She agreed with the proposition that her husband was working much longer hours now than he has ever worked at any time in his life. When it was suggested to her that he could not fit too many more lessons into the day she suggested on some days he could [T170].

Past Economic Loss

The plaintiff was paid $16,366.60 by the workers compensation insurer. It is appropriate that the defendants pay that sum to be reimbursed to the workers compensation insurer.
As for the period 24 October 2015 to 17 October 2017, the plaintiff claims the sum of $700.00 net per week.
In my opinion, the evidence does not support such an allowance.
After careful consideration, and having regard to the principles to be applied by s126 of the Act, I am unable to reach a reliable assessment of the plaintiff’s past economic loss. I do, however, accept that, as a result of the injuries sustained in the accident he has an incapacity which has from time to time, caused him to suffer loss of income above and beyond that which was paid by for by the workers compensation insurer. On account of that incapacity I have allowed an additional sum of $30,000.00 for past economic loss giving rise to a total of $46,366.60, which I round up to $50,000.00.

Future Economic Loss

It was clear from the evidence of the plaintiff and his wife that they intend to continue in the business. According to Mrs Sullivan, her husband was doing more lessons at the time of hearing than he was a year ago. It was also apparent that Mrs Sullivan will, herself, attain the requisite qualifications to perform driving lessons which will add to the profitability of the business.

The plaintiff claims the sum of $670.00 net a week for 27 years together with a loss of $36,500.00 “for the last five years”.
The starting point for any assessment of damages for economic loss in respect of a motor vehicle accident is s126 of the Act. Section 126(1) prevents a court from making an award of damages for future economic loss unless the claimant has satisfied the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s “most likely future circumstances but for the injury”.
Whilst there is evidence, for example, Professor Ghabrial, that the plaintiff does have some incapacity for work as a consequence of the injury sustained in the accident, the plaintiff’s circumstances, but for the accident are unclear. It is not clear whether the plaintiff would have remained at the RMS or moved to the Central Coast and set up his own business as he has in fact done. The impression I formed from the evidence of the plaintiff and his wife that it was their dream to move to a larger property outside of Sydney. It seems likely that taking the redundancy and setting up their own business was also part of their plain although the evidence is far from clear on this question.
The other consideration that bears upon any assessment for economic loss in this case is, irrespective of what the plaintiff’s earnings would have been but for the accident, there is no evidence that he is earning any less than that amount.
Accordingly, I find that the plaintiff has failed to establish on the evidence the claim which he advances for future economic loss. I do, however, accept the opinion of Professor Ghabrial and others that there is an incapacity which may amongst other losses, result in early retirement. Given the likely involvement of the plaintiff’s wife in the family business, it is impossible to predict the financial consequences of early retirement.
In the circumstances, I do not consider future economic loss to be reliably calculable and accordingly, I allow a buffer of $75,000.00. This reflects the likelihood that the plaintiff will have some limitation in work and may be forced into early retirement.

Domestic Assistance Generally

Ms Mullens recommended the following:

commercial domestic assistance at 4.75 hours per week at a cost of $33.00 per hour;

gardening maintenance at 1.5 hours per week at a cost of $60.00 per hour;

home maintenance at 0.25 hour per week at a cost of $60.00 per hour;

car maintenance at a cost of $35.00 per week (for 2 cars);

equipment recommendations at a cost of $539.90 per annum.

Dr Dalton assessed the plaintiff’s future requirements for domestic and household assistance, home maintenance and gardening as no more than 1 hour a fortnight. Dr Dalton also recommended a self-management plan to control pain and the use of simple analgesic and/or anti-inflammatory medication as required.
Dr Barrett suggested that the plaintiff would require four hours of domestic assistance per week indefinitely (for both domestic tasks and yard duties).
For reasons given, I have rejected the opinion of the plaintiff’s occupational therapist, Ms Mullen, as to her assessment of the plaintiff’s needs. I note that the plaintiff told Professor Ghabrial on 3 May 2017 that his wife and son provided assistance for between five to six hours per week. Professor Ghabrial recommended domestic assistance of five hours per week “for activities he is not able to perform because of his injury”. That was, at the time of the assessment in May 2017.

Past Domestic Assistance

I propose to approach the assessment of past domestic assistance as an average over the period since the accident. Plainly, there are periods when the plaintiff would have required greater assistance (initially and post-surgery) and times when he would have required less assistance.
I am satisfied that the plaintiff has met the statutory threshold for the recovery of damages for gratuitous domestic assistance and care. I propose to allow an average of six hours per week from the date of accident to the date of Professor Ghabrial’s assessment in May 2017, that is, a period of 291 weeks which, allowing $30.00 per hour for six hours per week comes to $52,380.00. This finding is made after taking into account all of the evidence, particularly that of the plaintiff and his wife.
For the period since May 2017 to date, I find that the gratuitous domestic assistance provided to the plaintiff has failed to meet the statutory threshold of six hours per week.

Future Domestic Assistance

The plaintiff claims the sum of $62,400.00 for future commercially-sourced assistance. This is on the basis that he requires 1½ hours per week for 40 years. That appears to have been calculated at the rate of $45.00 per hour which is reasonable for commercially-provided care.
I allow the sum claimed of $62,400.00.

Summary of assessment of damages

Non-Economic Loss

$225,000.00

Past Treatment Expenses

$105,000.00

Future Treatment Expenses

$25,000.00

Past Economic Loss

$50,000.00

Future Economic Loss

$75,000.00

Past Domestic Assistance

$52,380.00

Future Domestic Assistance

$62,400.00

Total

$594,780.00

Accordingly, I order:

judgment for the plaintiff against the defendants in the sum of $594,780.00;

the defendants to pay the plaintiff’s costs, as agreed or assessed;

liberty to apply to vary (b);

Exhibits to be returned forthwith.

**********

Decision last updated: 08 June 2018

Medium Neutral Citation:	Sullivan v Chasi [2018] NSWDC 144
Hearing dates:	24, 25 and 26 October 2017, 1 December 2017
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	(a) judgment for the plaintiff against the defendants in the sum of $594,780.00; (b) the defendants to pay the plaintiff’s costs, as agreed or assessed; (c) liberty to apply to vary (b); (d) Exhibits to be returned forthwith.
Catchwords:	LIABILITY – who was the “driver” at the time of injury; scope of liability under the Motor Accidents Compensation Act 1989; contributory negligence DAMAGES – assessment – no issue of principle
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Motor Vehicles Act 1959
Cases Cited:	Belanger v The Queen (1970) 2 CCC 206 Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty td v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11 Pender v Power Coal [2002] NSWSC 925 R v McDonagh [1974] QB 448 Shortland County Council and the Government Insurance Office (NSW) [1973] 2 NSWLR 257 State Government Insurance Commission v Sweeny (1989) 52 SASR 139 Trans v Allen and Anor (1996) 24 MVR 492
Category:	Principal judgment
Parties:	Barry Daniel Sullivan (Plaintiff) Nariman Chasi (1st Defendant) Walid Akel (2nd Defendant)
Representation:	Counsel: Mr G Graham (Plaintiff) Mr P Deakin QC with Ms N Compton (1st and 2nd Defendants) Solicitors: Lamrocks (Plaintiff) Moray and Agnew (1st and 2ndDefendants)
File Number(s):	2015/217311
Publication restriction:	None

20 October 2011	1st consultation with Dr Vyas following incident. Fully extracted above.
24 October 2011	Dr Vyas appeared to respond to questions from the insurer regarding injury and prognosis. It does not appear that a consultation occurred on that date.
27 October 2011	2nd consultation with Dr Vyas. Seven days following first consultation. 13 days following incident. Dr Vyas noted that the plaintiff “has been much better. Not using analgesia at present apart from Voltaren Rapid 2 TDS”. The numbness was improving. There is reference to physiotherapy and it is stated “keen and happy to re-start examining – feels that he can manage two tests daily”.
2 November 2011	3rd consultation with Dr Vyas. Has been improving and keen to upgrade. Feels he can do driving tests up to six times/day. Use Panadeine … still gets some heaviness with walking on heel but numbness improved in getting sensation at back of left leg. Having daily physiotherapy.
8 November 2011	4th consultation with Dr Vyas. “Has been coping well. Less paraesthesia in left leg. Left leg/foot strength continues to improve. See notes from physio – improving … cautioned re getting in/out of cars”.
18 November 2011	5th consultation with Dr Vyas. “1 m(onth) post injury. Found current duties just manageable. Agrees now was sensible not to upgrade further. However, had more pains and sensory disturbance in left leg on Saturday and worse on Sunday. Was lying down at the time”. Reference to still taking Mersyndol Forte and having physiotherapy daily during the week. Dr Vyas referred the plaintiff for an MRI scan of the lumbo-sacral spine.
23 November 2011	6th consultation with Dr Vyas. It is clear from the note that the MRI results were discussed and the plaintiff was referred to Dr Kam, Neurosurgeon and Spinal Surgeon.
5 December 2011	7th consultation with Dr Vyas. “Is to see Dr Kam on 19/1/. However, has noticed sensation on foot coming back and is able to put more wt (weight) on left foot almost walk tippy toes. Feels strength in left foot improved. Needing less analgesia.
19 December 2011	8th consultation with Dr Vyas. “Has been progressing well. Using Mersyndol alt nights. Feels able to 5-6 tests daily.
23 January 2012	9th consultation with Dr Vyas. “Dr Kam has advised continue conservative Mx (management). Has been going well. Not needing analgesics. Ceasing physiotherapy after last one on Friday. Has been able to do 5 tests daily comfortably”.
20 February 2012	10th consultation with Dr Vyas. “Has been going well. No back issues. Feels able to and keen to upgrade to pre-injury. Not needing any analgesia. Current duties near normal”.

Date	Capacity
5 January 2015	6 hours a day, 4 days a week
5 February 2015	6 hours a day, 5 days a week
5 March 2015	6 hours a day, 5 days a week
8 April 2015	7 hours a day, 5 days a week
6 May 2015	8 hours a day, 5 days a week
3 June 2015	8 hours a day, 5 days a week
6 July 2015	8 hours a day, 5 days a week
20 July 2015	8 hours a day, 5 day a week (Form completed by Dr Victor Dechniz)
28 July 2015	4 hours a day, 5 days a week (Form completed by Dr Victor Dechniz)
12 August 2015	No capacity for employment (Form completed by Dr Victor Dechniz)
25 August 2015	No capacity for employment
10 September 2015	No capacity for employment
9 October 2015	No capacity for employment
2 November 2015	No capacity for employment
2 December 2015	Fit for pre-injury duties
2 December 2015	8 hours a day, 5 days a week

Non-economic loss	$275,000.00
Past Out-of-Pocket Expenses –
• Accounts paid by workers compensation insurer	$109,822.00
• Medicare charge	$212.65	$110,034.65
Future Out-of-Pocket Expenses –
• Medication pa	$4,160.00
• GP visits – 12 per annum @ $70 each	$840.00
• Specialists attendances pa	$900.00
• Physiotherapy – once per week @ $85.00 per visit	$4,420.00
• Gym membership per annum	$750.00
• Equipment purchase $510 pa	$510.00	$11,580.00
Allow for life expectancy	$212,113.00
One-off charge for supervised physical conditioning program	$650.00	$212,763.00
Past Economic Loss
• Paid by workers compensation insurer	$16,366.60
• Period 24.10.15 – 17.10.17
• $700 pw for 103 weeks	$72,100.00	$88,466.60
Future Economic Loss
• Allow $670.00 a week for 27 years – after vicissitudes	$466,000.00
• Plus allow for total loss of earning capacity for the last 5 years	$36,500.00	$482,500.00
Past Voluntary Care
Allow 2 hours a day for the past period of 312.4 weeks @ $32.50 per hour	$142,100.00
Future Commercially Sourced
1 ½ hours a week – allow 40 years	$62,400.00
Total	$1,373,264.25

Non-Economic Loss	$225,000.00
Past Treatment Expenses	$105,000.00
Future Treatment Expenses	$25,000.00
Past Economic Loss	$50,000.00
Future Economic Loss	$75,000.00
Past Domestic Assistance	$52,380.00
Future Domestic Assistance	$62,400.00
Total	$594,780.00