Tran (by his next friend Thi Xuyen Pham) v Alami - [2015] WADC 134

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TRAN (by his next friend THI XUYEN PHAM) -v- ALAMI [2015] WADC 134

CORAM: STEVENSON DCJ

HEARD: 30 MARCH-2 APRIL, 10-11 AUGUST 2015

DELIVERED : 13 NOVEMBER 2015

FILE NO/S: CIV 242 of 2013

BETWEEN: DUNG ANH TRAN (by his next friend THI XUYEN PHAM)
Plaintiff
AND
MOHAMMED SADIQ ALAMI
First defendant
THA KLER HTOO
Second defendant

Catchwords:

Tort - Negligence - Plaintiff driver involved in two motor vehicle accidents - Liability admitted - Minor soft tissue injury in first accident - No permanent physical injury - Whether plaintiff suffered psychiatric condition - Post‑traumatic stress disorder - Melancholic depression and anxiety disorder - Causation - Damages - Assessment - Seasonal casual market gardener

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Plaintiff's damages assessed as $137,701.90

Representation:

Counsel:

Plaintiff:     Mr T H Offer
First defendant              :     Mr P E Jarman
Second defendant          :     Mr P E Jarman

Solicitors:

Plaintiff:     Vertannes Georgiou
First defendant              :     Jarman McKenna
Second defendant          :     Jarman McKenna

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

City of Stirling v Tremeer [2006] WASCA 73
CSR v Eddy [2005] HCA 64
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mastaglia v Burns [2006] WASCA 190
Medlin v State Government Insurance Commission (1995) 127 CLR 180
Taroporewalla v Berkery [1983] 3 NSWLR 28

STEVENSON DCJ:

Introduction

The plaintiff was involved in a motor vehicle accident with the first defendant on 15 April 2010 (the first accident) and the second defendant on 1 July 2010 (the second accident). On each occasion he was driving. Liability for the accidents is admitted by the defendants.
The issue for determination is whether the plaintiff suffered a compensable injury and, if so, was it caused by either accident, or both accidents in combination. If the answer to both questions is in the affirmative, the court must assess the quantum of damages payable to the plaintiff. In short, the issues are causation and quantum.
The plaintiff contends that as a result of the accidents he suffered a significant psychiatric injury, namely post-traumatic stress disorder (PTSD). The defendants have changed their position and now accept the plaintiff suffers from a major depressive and anxiety disorder. However, the defendants maintain the onset of the plaintiff's psychiatric illness was spontaneous and unrelated to the occurrence of the accidents.
Irrespective of the correct diagnosis or 'label' for the plaintiff's symptoms, it is common ground the optimum treatment algorithm is, in effect, the same and has not been afforded to the plaintiff thus far.

First motor vehicle accident – 15 April 2010

For the purpose of the trial the parties agreed the first accident occurred in the following circumstances:
On 15 April 2010 at or about 5.30pm the plaintiff was the driver of a motor vehicle registration 8 CX 217 travelling west along Elliott Road near the intersection with Wanneroo Road, Hocking.
Elliott Road is a dual-carriageway. The area speed zone was 60kph. Immediately prior to the accident the plaintiff was travelling at a speed of approximately 60kph and the first defendant was travelling at the same speed.
The first defendant was the driver of a taxi motor vehicle registration TAXI 928 travelling east along Elliott Road when the first defendant executed a right hand turn into the path of the plaintiff's motor vehicle and collided into the right front bonnet and right front driver's door of the plaintiff's motor vehicle.
The driver's side front headlight and the driver's side door of the plaintiff's motor vehicle was smashed in and the plaintiff was stuck inside the motor vehicle. Fire and Rescue personnel were required to cut the right driver's side door of the plaintiff's motor vehicle to extricate the plaintiff from the motor vehicle.

Second motor vehicle accident – 1 July 2010

The parties agreed the second motor vehicle accident occurred in the following circumstances:
The second motor vehicle accident occurred on 1 July 2010 at or about 8.05am near the intersection of Marangaroo Drive and Highclere Boulevard, Marangaroo. The area speed zone was 70kph. The intersection of Highclere Boulevard and Marangaroo Drive is a three way T-junction controlled by traffic lights.
The plaintiff was the driver of a motor vehicle registration 1 DFZ 147 which was stationary at the lights on Marangaroo Drive intending to execute a right hand turn into Highclere Boulevard. The plaintiff's motor vehicle was behind another stationary vehicle at the traffic lights. The plaintiff's motor vehicle was facing west at the time of the collision.
The second defendant was driving a motor vehicle registration 1 AOJ 441 along Highclere Boulevard and attempting to execute a left hand turn into Marangaroo Drive when he lost control of his motor vehicle and collided into the rear of the motor vehicle in front of the plaintiff's motor vehicle and subsequently collided with the plaintiff's vehicle in the area of the right front driver's headlight and right side driver's bumper. The second defendant's motor vehicle was travelling east at the time of the collision.

Plaintiff's evidence

Dung Anh Tran (the plaintiff)

Mr Tran was born in Vietnam on 30 April 1965. He is 49 years old. His parents, now deceased, owned a fruit and vegetable market garden. He has three sisters and six brothers. Currently, one brother lives in Perth and one sister lives in Adelaide. His other siblings remain in Vietnam.
While in Vietnam, he completed five years of schooling and left school aged about 11. He worked in his parents' market garden and since then has had no further formal education or training.
The plaintiff left Vietnam by boat in 1983. After about 18 months in Thailand, he arrived in Australia (by air) in 1984. He lived in Adelaide until 2007 when he moved to Perth with his wife.
When he first arrived in Australia he did not work for about two years. During this time he undertook an English language course. He was aged about 19 years when he arrived in Australia.
The plaintiff commenced his first formal employment at the Mitsubishi car factory in Adelaide in 1986. He worked on the assembly line for about two years and was then promoted to a quality checker. He worked full-time for about 14 years for Mitsubishi until the factory closed in 2000. Since then all his employment has been part-time on a seasonal basis as a casual labourer in market gardens owned by family members.
After the Adelaide factory closed, the plaintiff commenced working for his sister and brother‑in‑law who grew cucumbers. He also worked for someone else but is unable to recall that name. The plaintiff was involved in the planting, watering and harvesting of cucumbers on a seasonal basis for about six months of the year.
Since his arrival in Australia and up until he married in 2003, the plaintiff lived with his sister and brother-in-law. The plaintiff said he returned to Vietnam where his cousin introduced him to his future wife. They married in Vietnam and she came back to Australia with the plaintiff in 2003.
The plaintiff's evidence is that, after he married, he continued to live in Adelaide with his wife until 2007. They worked for his sister and brother-in-law but rented their own home. In 2007, the plaintiff said that they decided to come to Perth at the invitation of his niece as she had said there was more work available in Western Australia than South Australia.
On arrival, the plaintiff said he commenced working for his 'ex‑brother‑in‑law' on his strawberry farm. He rented a house in Balga where he still lives with his family and, since late 2013, his brother, Mr Van Binh Tran.
In cross-examination, the plaintiff said his ex-brother-in-law's name was 'Luc'. Mr Tan Luc Nguyen gave evidence in the second tranche of evidence. The plaintiff said he worked for Mr Nguyen in the market garden and was involved on a seasonal basis in planting, maintaining and harvesting the strawberry crop. His evidence was that he was earning about $400 per week for about three months of the year.
The plaintiff, in examination-in-chief, was asked if he had a choice, where would he like to work? His answer was 'Maybe my own farm'. He indicated that he liked working in a market garden because that is what he did in Vietnam before coming to Australia. However, when further asked as to whether he would prefer to work in a market garden or in a factory his answer was: 'If I got better job, I work in the factory, yeah' (ts 30). I infer this was not the answer the plaintiff's counsel was expecting because his next question was: 'If the pay was the same in each position, then which would you prefer?'. The plaintiff's answer was 'Factory, yeah'.
I interpose that the plaintiff's case was opened on the basis that his life plan was to save a sum of money so that he had sufficient capital to commence his own market garden operation. The genesis for this contention appears to come from the plaintiff's evidence that he was working for 'Luc' in order to obtain experience on the basis that 'Luc' had indicated to him that he should commence his own market garden operation and that he would assist him to make a start. His evidence in this regard is not persuasive that he had, or has, any concrete or real plan to obtain his own farm or market garden. In my view it is more likely this idea was planted in his mind by those associated with him as something he could secure by maintaining his claim for damages. In any event, by the end of the trial the plaintiff no longer sought damages on the basis that there was a chance of a future in this regard.
Further and relevantly, the plaintiff's evidence was that, at the time of his first accident on 15 April 2010, he and his wife had saved about $10,000. According to the plaintiff's counsel in opening the plaintiff's case, the aim was to get $50,000 in savings to allow the plaintiff to undertake his own market garden operation. There is no concrete evidence as to the amount of start-up capital required.
The plaintiff's counsel attempted to re-visit the question as to whether he preferred working in the car factory or on a farm. The plaintiff's response was: 'No, I likes – everything like if in factory or in farm. If we can make more money, yeah, I do that one' (ts 33). Consistent with the plaintiff's own evidence, the position with respect to a preferred working place is dictated by the amount of remuneration, not the type or nature of work. I find the plaintiff's primary motivation for choice of employment is the amount of reward for working.
When the plaintiff and his wife came to Perth, his wife obtained work as a nail beautician for three days a week. In Adelaide, she had also been working in the market garden. In Adelaide, and in Perth, because the nature of the work undertaken by the plaintiff and his wife was seasonal, they obtained 'money from Centrelink as well'.
According to the plaintiff, before his accidents while in Perth he and his wife used to visit friends, travel into the city for dinner and to go to the cinema. The plaintiff gave evidence that he liked singing karaoke and also played a guitar. When asked if he was a religious man, the plaintiff answered 'no' but then went on to give evidence that he believed in God. According to the plaintiff, prior to the accident, he went to church every Sunday in Wanneroo.
His hobbies included fishing and going to the beach. He also did the gardening and looked after it, including cutting the lawn.
The plaintiff's son was born on 11 May 2009. After his birth, the plaintiff's wife stopped working for 'about one year'. On her return she was working, according to the plaintiff, three to four days per week but now works full‑time.
The plaintiff said he maintains contact with his brothers and sisters in Vietnam by telephone and, when he could afford to, he would send money to them. This willingness to provide financially for his extended family in Vietnam obviously impacted on his ability to save sufficient funds to commence his own market garden.
The plaintiff's evidence in relation to his intention to commence his own market garden operation was equivocal in what he said and in my observation of him as a witness. His evidence was that his ex‑brother‑in‑law asked him to work for him and indicated 'he would teach me, you know, how to plan, how to do everything, you know? After I can, you know, maybe get my own farm' (ts 39). The plaintiff's evidence was that his ex-brother-in-law told him that he needed to obtain more experience before he could start a market garden operation.
The plaintiff's evidence was that, while working for his ex‑brother‑in‑law, he worked every day during the season. He said his ex‑brother-in-law told him that he would need 'Maybe 50,000 or 60,000, yeah, depend on – yeah'. According to him, he also offered to assist him with money. Interestingly the plaintiff, when asked how long it would be before he could start his own operation, responded by saying 'My brother, he told me, maybe one year, maybe. Yeah. Like one year being training'.
In examination-in-chief, the plaintiff was asked why it was that he had not therefore started his own market garden by 2010. His response was: 'Now I got – after that I got car accident – after that'. The plaintiff's counsel sought to clarify the response and asked the question in a different way and the effect of the plaintiff's answer was that he had not saved enough money by the end of 2008 and that in 2009 'I get accident'. The plaintiff appears to have been confused because the first accident was on 15 April 2010. In any event, the plaintiff's evidence was that he and his wife had saved about $10,000 by 2008 and 'a little bit' more before the accident in 2010. The reduced rate of saving, I infer, is attributable to the plaintiff's son being born on 11 May 2009, and the reduced income as a result of his wife not working for a period thereafter.
He was unable to be explicit about how much had been saved by the time of the accident in 2010 because his wife was responsible for maintaining their finances. The plaintiff's evidence was that he only ever intended to lease some land in order to operate his own market garden. In this regard, he indicated that a tractor, sheds, fertiliser and plastic were required for the operation and that it was intended to undertake the venture in the Wanneroo area.
At an earlier point, the plaintiff indicated that he had a difficulty with the middle finger of his right hand. It was still a problem when he arrived in Perth but it was treated by Dr Chan and, after a couple of months, was resolved. According to the plaintiff he had no other health problems prior to the accident.
On consideration of all the evidence, I am satisfied that the plaintiff has suffered a psychiatric injury in the nature of significant depression and anxiety symptoms. There is an academic debate at a professional level whether the plaintiff's symptoms permit a formal diagnosis of PTSD. This is perhaps semantical because the medical expert opinion of both parties appears to be that the plaintiff requires a proper medical treatment regime, which he has not been afforded to date, and this will in any event be on the same continuum, irrespective of the correctness of the diagnosis.
The plaintiff suffered minor physical injuries as a result of the first accident which completely resolved within a short period of time. No physical injury resulted from the second accident.
As mentioned, and as we will see, unfortunately, the plaintiff's psychiatric condition has not been treated optimally and this has prolonged his recovery and return to his pre-accident part-time seasonal work. Settlement of the plaintiff's claim may also have been delayed as a result of the initial view Dr Mander espoused on behalf of the defendants, to the effect that the plaintiff was malingering and his claimed symptoms were 'implausible'.
Notwithstanding this, in my view, there has been an element of exaggeration by the plaintiff of his symptoms and a course of conduct for the purpose of inflating his claim. For example, it is clear that he has not always been forthcoming about his history, even when one accepts the need for the use of a translator. He has attempted to hide behind alleged memory loss which, according to the medical opinion of Dr Mander in particular, is unusual. In my view this cannot be explained just by a difference in ability of the medical practitioners to obtain a history. I am not completely satisfied he is incapacitated to the extent alleged. In my view, to some degree the plaintiff has taken advantage of the opportunity to do very little or to otherwise assist himself. There is no real contradistinction in the role he has taken for the responsible care of his son, which for all purposes is the same as before the accident. I am not satisfied that his brother came to Perth to live with them as a result of a 'plea for help' as opposed to the breakdown of his own marriage in South Australia and it being convenient to do so. The happening of both events at the same time was not merely a co-incidence. The arrangements of his living in the plaintiff's home do not bear out the professed reason for him being there.
In making these findings, I am fully cognisant of the nature of the condition the plaintiff has and its resultant impact on his wellbeing. I also take into account the medical evidence that, to date, his treatment for depression has not been as might have been expected, and this might also explain, in part, his poor performance. He is of course not to be prejudiced by the failure of his medication regime to provide the best chance of recovery.

Tan Luc Nguyen (Mr Nguyen)

Mr Nguyen was born in Vietnam and is 65 years old. Mr Nguyen is the plaintiff's brother‑in‑law, having married his older sister in 1978. He left her in 1982 when he left Vietnam as a refugee. Mr Nguyen arrived in Perth in 1984, having lived two years in transit in Thailand.
He met the plaintiff in Vietnam where he married the plaintiff's sister and described him as 'normal, he OK'. At that time the plaintiff was working in his family's market garden. He did not see much of the plaintiff in Vietnam but met him again in Thailand.
Mr Nguyen retired in July 2014. When working, he was self‑employed and operated a market garden on leased land.
In cross‑examination, Mr Nguyen said he re-married in about 1987 and has four children. His wife and the children did not work in the market garden. The market garden business was developed after he re‑married. Prior to this, he worked in a factory and also in the mining industry at Collie. I infer this enabled him to save sufficient funds to commence his market garden business. He leased 12 acres which was increased to 15 acres. He purchased the machinery necessary for the operation which appears to have been primarily growing strawberries. He said the crop was planted in April during the season. He employed up to 10 to 15 people as casual employees. When he retired, he no longer had a lease over the property and therefore did not have a business to sell.
Mr Nguyen was aware that the plaintiff had migrated and was living in Adelaide. During this time he had little contact with him. According to Mr Nguyen, he said his daughter (from his marriage to the plaintiff's sister) provided the plaintiff with his telephone number so he could be contacted. When contacted, Mr Nguyen said to the plaintiff 'you come and have a look what I doing' and Mr Nguyen said the plaintiff was interested.
The plaintiff also asked him for casual work which was provided to him 'a few days a week'. The effect of Mr Nguyen's evidence was that he offered the plaintiff a few hours' work a day, not a full‑time job because he did not have the capacity to do so. He said the plaintiff 'work together with me, I can show him, you know, and I told him what to do with machinery, ride a tractor, you know, you do hand work or – whatever I do show him'. In short, the plaintiff assisted Mr Nguyen at the market garden in all facets of the work but was only paid as a casual when the work was available.

According to Mr Nguyen, the plaintiff expressed an interest in commencing his own market garden business. His evidence was as follows (ts 409):
Did you have any discussions with Mr Tran about what he wanted to do? - Because we don't have many work, so he ask me - you know, he want to open these – he want to share employment. He want to open the business, can I help him for - you know, for the finance or machinery, and I say yes, I can help him. And after he came here, his work – and open own business.
Okay. So when you’re talking about him being interested in opening a business, what kind of business were you talking about? - Market garden. He want to open about five acre farm and he can do by himself; and he and his wife, yeah.
And you said that you were able – you were willing to help him? - Yeah.
What were you going to help with? - For land, machinery, or borrow money or whatever. And I can – what I can do for him, I do, because that my – my wife family, so what I can do, I can help him. I can help.
Obviously him being able to borrow machinery and so on would help, but would he need to have ‑ ‑ ‑? - He pay and ‑ ‑ ‑
- - - to pay for himself? Would – would he need to – to buy anything for himself to start? - He can borrow money. I say, you know, 'I can help you,' because he – he pay me back after when he – he got the income. I say ‑ ‑ ‑
What sort of – why would he need to borrow money? What would he need that for? - Because he don't have enough money to – to open his own business. So I got machinery because I do for my business and I can lend to him. And I – and I say, 'If you' – he need some money and I – I got – I get to him borrow and he – when he – he got income, he pay me back.
Okay? - Yeah. That's help to family.
Following an objection by the defendants' counsel to a question of how much the plaintiff would need to start his own business, I indicated the evidence of Mr Nguyen lacked particularity as to what was proposed and observed that the only concrete detail that had been mentioned was 5 acres (about which there is no evidence as to commercial viability). The plaintiff's counsel, quite properly, circumscribed the issue as one of those
cases where you'll need to use what the cases have described as a sound imagination and a broad axe in that there is a number of things … to call them plans is perhaps optimistic ‑ a number of objectives which come into the mix. (ts 410)
In any event, as mentioned, this aspect of the evidence is not pressed by the plaintiff for the purpose of the calculation of damages.
Counsel described the evidence as attempting to assist the court to provide as much information as possible about the prospects of the plaintiff 'going forward' or the proposal coming to fruition 'but for' the accidents.
According to Mr Nguyen, with embellishment after this exchange with counsel, the plaintiff would talk to him every time he came to the market garden about starting his own business. Mr Nguyen said he would tell the plaintiff
how to manage the business and how to do market garden, how to use the fertiliser … because we try to help him too.
He alleged it was a common discussion. Mr Nguyen maintained he said the plaintiff would require a minimum of 5 acres, that he would lend him machinery and that he would lend him under $50,000 to be paid back 'when he got income'.
Mr Nguyen said the plaintiff stopped working for him in about April 2010, after the first car accident. He maintained he never worked again, although said he would often go to the market garden for 'coffee'. He gave evidence of an occasion in January 2011 when the plaintiff visited him while he was doing some welding to fix a spray boom. According to Mr Nguyen, the plaintiff got something in his eye, even though he told him not to watch during the welding operation, which took about an hour. He was aware the plaintiff attended hospital after this incident but maintained the reason was because something got in his eye while watching the welding - as opposed to fertiliser while spraying it on the market garden. In cross‑examination, Mr Nguyen maintained that the plaintiff was not working on this visit but was merely present for coffee. He said that after the accident, the plaintiff visited about 10 times for 'a coffee and talking'.
Mr Nguyen in cross‑examination maintained that his discussions with the plaintiff about the plaintiff commencing his own business occurred before his accidents. Mr Nguyen was challenged by counsel for the defendants in relation to the contention that the plaintiff had formed a genuine intention to commence his own market garden operations before the motor vehicle accidents. Mr Nguyen would fall back on the 'family relationship' as the reason why he was prepared to assist the plaintiff and his wife. His answers in the first instance, and on clarification, were not responsive. In fairness to Mr Nguyen, English is not his first language and he gave his evidence without the assistance of an interpreter.
In examination‑in‑chief, Mr Nguyen was asked to describe his communications with the plaintiff after the accidents. His primary concern appears to have been that the plaintiff gave inconsistent responses to questions on the topic of discussion. For example, 'after he talk again and, you know, and not the same before'. His complaint was that
when he talk it not the same before … I ask him one question and he talk and after few minutes he talk again that question …
This is in stark contrast to the plaintiff's brother, Mr Tran, who presently lives with the plaintiff. He claimed the plaintiff is non‑responsive and not talkative; in effect, totally non-communicative. The evidence was not clear as to the timeframe of Mr Nguyen's observation in this regard, except it must be borne in mind that some of the conversations appear to have occurred at his market garden, which closed in mid‑2014.
Also, the plaintiff went there to speak with him and visit generally. Again, this is in contradiction to Mr Tran's evidence that the plaintiff in effect, in general terms, 'does nothing, goes nowhere and does not communicate'. I was left with the impression that Mr Nguyen had a complete understanding of the purpose of the proceedings and his evidence was, in my view, as a result always favourable to the plaintiff's cause. Notwithstanding the language barrier, I believe he understood everything that was happening and was cognisant of the issues between the parties.

Van Binh Tran (Mr Tran)

Like Mr Nguyen, Mr Tran gave his evidence in the second tranche on 10 August 2015. Unlike Mr Nguyen, Mr Tran was assisted by Ms Thuan My Nicholls, an accredited interpreter. She translated each question and each answer for Mr Tran. Mr Tran did not give any indication while giving his evidence, like some witnesses, that he had any comprehension of English.
Mr Tran was born in Vietnam in 1961. He is the elder brother of the plaintiff. He came to Australia on 26 May 2010 as a result of being sponsored by his wife (now separated). Before coming to Australia, Mr Tran lived in Kien Giang in Vietnam with his siblings.
Prior to 2010, he had telephone contact with the plaintiff living in Australia. Mr Tran did not come to Australia to see his brother since he left Vietnam in 1984. I infer that, on arrival in Australia in 2010, he did not travel to Perth to see his brother because of the distance between Adelaide and Perth.
Before the plaintiff came to Australia, he and his wife lived in the same house in Vietnam. Mr Tran described the plaintiff at this time as 'very, very active, happy person, and gregarious'.
When asked, Mr Tran said that, in their telephone conversations while he was in Vietnam and the plaintiff in Australia, they would 'usually talk about the normal daily activities'. When asked whether he noticed any change at all during those conversations, Mr Tran said 'previously he was normal, but later on he was not the same as before'. This was then clarified by Mr Tran to be, in fact, a reference to when he contacted the plaintiff in '2013'. At this time, according to Mr Tran, 'he was not the same as previously'. At this time, that is 2013, Mr Tran said the plaintiff 'used to be very talkative, but no longer the same, and he can get angry and wouldn't answer questions'.
As mentioned, Mr Tran lived in Adelaide when he came to Australia in May 2010 as a result of being sponsored by his wife. An important contention by the plaintiff is that his brother, Mr Tran, came to Perth to assist the plaintiff and his family because of the plaintiff's incapacity following the two car accidents. In examination‑in‑chief, Mr Tran's evidence was as follows:
And I think you went to Adelaide, is that correct? - Yes.
And I think you lived there until the end of 2013, is that right? - Yes.
Now, you have been living with the plaintiff and his wife since the end of 2013, is that correct? - Yes, correct.
How did that happen? - We live normally with the wife. I didn't ‑ ‑ ‑
THE INTERPRETER: He didn't understand the question.
OFFER, MR: Okay. Why did you move from Adelaide to Perth? - (Through interpreter) I telephone and ask him to help me.
You telephoned your brother? - No, my sister-in-law rang me.
I see. And so your sister-in-law rang you to – and said what? - She rang and asked me to come over to help because my brother cannot do anything so I should come and help.
And by your sister-in-law you mean Mr – the plaintiff's wife, is that correct? - Yes.
Right. And you agreed to come to Perth? - Yes.
Why? - To help in difficult circumstances because he cannot do much.
And you moved into the house? - Yes.
Did your sister-in-law ask you – tell you what sort of help that she wanted? - Cooking and cleaning and weeding.
The professed inability to understand the question through the interpreter might be explained by the subsequent evidence adduced in cross‑examination as to the full context and circumstances of him coming to live in Western Australia. In cross‑examination, Mr Tran was asked about the circumstances of his coming to Western Australia. His evidence was as follows (ts 433):
And do you say that the plaintiff's wife rang you at the end of 2013 and asked you to come to Perth to help your brother? - That's right.
And you came straight away? - Yes.
Did your wife come with you? - No.
So you left - did you leave your wife to come and help your brother? - Because we have no, you know, offspring, so we are very comfortable couple.
So your wife lives in Adelaide and you live in Perth. Is that right? - Because we have no children. That's why my wife had no objection when I come over.
Have you been - since you have come to Perth have you been back to Adelaide to see your wife? - No, we had some disagreement, so we seldom communicate.
Did you have those disagreements before you came to Perth or after? - Before. We had it before.
So had you separated from your wife before you came to Perth? - Yes, we separate before I came over.
Now, do you pay your brother or his wife to live in the house? - Yes.
How much do you pay? - Nearly $200 per week.
Mr Tran's evidence in cross‑examination, albeit reluctant, to the effect that he had separated from his wife whilst living in Adelaide, and the fact that he was paying rent to the plaintiff and his wife to live in their home, in my view creates some doubt about the real reason for coming to this State. Other considerations in making a finding in this regard include the fact that his wife sponsored him to come to Australia in May 2010. Bearing in mind that the plaintiff's first traffic accident was April 2010 and the second in July 2010, the intervening period and delay until the end of 2013 suggests, in my view, that Mr Tran came to Perth to live with his brother because his marriage failed in Adelaide and possibly to seek work opportunities. Mr Tran was not asked exactly when he separated from his wife.
In Adelaide, Mr Tran said he worked five to six months for his sister doing seasonal work. He was paid cash and did not complete a tax return because he did not earn enough. The rest of the time, according to Mr Tran, he did not do anything employment-wise. According to Mr Tran, in Perth he worked three days per week although, in a subsequent answer, he said he only worked two to three days. Again, allowance has to be made for interpretation, accepting that Mr Tran has no comprehension of English.
On allowing Mr Tran's evidence to be clarified, he said that he worked on Mr Duc's farm for three to four hours, two to three days per week in Perth. Mr Tran gave evidence that he paid 'nearly $200 per week' to the plaintiff and his wife to live in their house and that he was paid 'about $200, $250 but not more' for his work. He maintained he did not need any money 'because I help him (the plaintiff). I – I do not spend anything on anything'.
The topic of Mr Tran's employment, even on a seasonal basis, caused some difficulty because plainly there is tension between the purported thrust of the whole of his evidence that he, in effect, came to Western Australia to provide full‑time care for the plaintiff (and his wife).
In cross‑examination Mr Tran maintained he did the cleaning every day for about two hours and cooked two meals for the plaintiff and his family and that the plaintiff did absolutely nothing. His evidence in cross‑examination was that the plaintiff's wife worked full‑time and, as a consequence, she also did not do any cooking or cleaning. He maintained he mowed the lawns every two weeks. When asked about the plaintiff's wife's evidence (ts 307) that 'I cook and clean up, so it might take three to four hours every evening'. Mr Tran said 'I don't know what to say to be fair'. Mr Tran was placed in a difficult position, given his stance that he was the sole carer of the plaintiff's family for all cooking, cleaning, gardening and child transport, except for the occasional times the plaintiff dropped or picked up his son from school.
Mr Tran maintained he did not understand the plaintiff was seeking money as a result of his claim and proffered that 'perhaps he wants some fairness' which he described as 'fairness mean make up for what he cannot work for' (ts 435).
In summary, Mr Tran's evidence is that, living in the plaintiff's home from late 2013, he did all the cooking and all the cleaning. Also, three or four times a week he would drop the plaintiff's son to school, a round trip of about 15 minutes, the school being less than 5 km away. Mr Tran said the plaintiff occasionally took his son to school. Otherwise, he described the plaintiff as 'doing nothing'.
Mr Tran said the plaintiff 'watches TV'. Mr Tran, when asked how long he watches TV for, answered through the interpreter, 'very little because I don't have time. My brother – he's just sitting around – he doesn't watch much TV'. Again, allowing for translation, the evidence of Mr Tran is that the plaintiff does not watch much television.
Mr Tran's evidence continued that 'he watch very little TV. He sits alone'. He said the plaintiff would sit usually in the front of the house and then he would go to the back. According to Mr Tran, he does not do anything while he is sitting - 'he just sits there'. Mr Tran said 'my brother doesn't talk. Even when you ask him, he doesn't talk'. He said the plaintiff did not respond to anything.
Mr Tran said the plaintiff did not go out except to take his son to school occasionally and that no friends visited the plaintiff.
Mr Tran described the plaintiff as being 'completely different from before. Before he was very talkative but now he just doesn't talk'. He said that in Vietnam the plaintiff was 'very talkative and now when you ask him a question he doesn't want to say anything'.
It is necessary to assess the evidence of Mr Tran for the purpose of making findings as to the extent of the incapacity of the plaintiff. This is difficult because the plaintiff gave his evidence through an interpreter. As mentioned, I am satisfied that he did not appear to have sufficient comprehension of English to meaningfully understand some questions before he answered. However, there are some direct inconsistencies in the evidence of Mr Tran and other witnesses in the trial. These include the extent to which the plaintiff's wife assisted with the daily chores, including the cooking and cleaning.
It is also difficult to understand if he is, in effect, acting as a full‑time carer, why he would pay $200 per week, especially when he only earns on a seasonal basis yet, I infer, he pays rent all year? No evidence was given by Mr Tran as to whether this included the food which he cooked. I infer that some of the money would have been used to purchase food for the plaintiff and the family and himself.
There is also real doubt as to the actual motivation of Mr Tran to come to live in Western Australia. I find one reason was to assist the plaintiff, but it was not the sole reason. The general tenor of his evidence was to give evidence as favourable to the court as he could in order to support his brother's claim for damages. I am satisfied he fully appreciated the importance and significance of his evidence and, to this extent, exaggerated it to assist to inflate the plaintiff's claim. For example, I do not accept the plaintiff's wife does nothing in the home by way of cooking or cleaning, even accepting that she is working full‑time. This may be explained by cultural reasons but I cannot accept she does absolutely nothing to assist or maintain her home as contended by Mr Tran. To find otherwise would be contrary to her evidence.

Thi Xuyen Pham (the plaintiff's wife)

Ms Pham is the plaintiff's wife. She was born in Vietnam on 30 May 1979 and attended school for seven years before working as a dressmaker. She met the plaintiff in Vietnam and described him as 'very polite, easy to get to know and very friendly'. At the time, according to her, the plaintiff was growing cucumbers in Australia. They married in Vietnam and she came to Australia in 2003 after being sponsored by the plaintiff.
On arrival in Australia, they lived in Adelaide in a rented house. The plaintiff did seasonal part-time 'farm work' growing cucumbers. Ms Pham said she took English lessons and assisted with gardening and cooking for relatives. She also did some of the farming (picking cucumbers) with the plaintiff.
According to her, the plaintiff's hobbies were karaoke and playing the guitar. On Sundays, she said they both went to church. She described the plaintiff in Adelaide as 'very friendly … very caring to people'. He assisted her with the cooking and helped her a lot. She described their relationship as happy and life as good.
Ms Pham said, when they were living in Adelaide, she was responsible for controlling their money and paying the bills. During this period she received Centrelink benefits. It is not known whether she submitted tax returns, although it was suggested to her in examination‑in‑chief that the reason the plaintiff did not always submit tax returns was because he did not earn enough declared income to pay tax.
According to Ms Pham, a niece of her husband who lived in Perth asked the plaintiff whether he wanted to have a change. She suggested to him there was lots of work in Perth, so they decided to relocate. In Adelaide they did not have full‑time work but planned to have children and therefore decided to change States to obtain stable employment and purchase a home.
Ms Pham said they came to Perth in 2007 but that the plaintiff did not obtain employment until 2008. Ms Pham obtained her present employment and initially worked 20 hours a week on a casual basis when required. She described her occupation as a nail technician at the Floreat Forum. On arrival, they rented the house they still live in.
Ms Pham said her husband did not obtain work until mid-2008 when he worked part-time on a strawberry farm. He worked when required and she described the hours as 'unpredictable'.

According to her, the plaintiff usually worked in the strawberry picking time, the busy months of July, August and September. During this time she said he might work 20 to 30 hours per week. She said when it was not busy, he would wait for one or two weeks for people to call him for work.
Ms Pham said when they arrived in Western Australia, 'the brother‑in‑law' suggested the plaintiff obtain experience growing strawberries and that, if he then wanted 'to open a farm himself, then he'll help him with ideas or suggestions'.
At this time she described their life as 'very happy' and 'we had some change in our lives, so we were pleased'. She was happy 'because everything was new and life was happy'. She described her husband's mood as 'very good, same as in Adelaide' – happy, normal, talkative and helpful with housework. According to her, if she did the washing then he would hang it out. He did the vacuuming and he cut the grass.
Ms Pham said that she did not work for over a year after their son was born on 11 May 2009 before she returned to part-time work.
Ms Pham said she received a telephone call to inform her that the plaintiff had been in a motor vehicle accident. She said the plaintiff spent two or three days in hospital after the first accident and, after he came home, 'first few days he didn't talk much and he seemed to be deep in thoughts. And he mentioned headaches'. Then, according to her, a few days after he was 'an angry person', 'frustrated' and whenever she spoke, he said 'Don't say anything more' because he had a headache. She said she had never seen him behave like that before. Before this, whenever she asked him to do anything, he would do it but, according to her, he now said 'Do it yourself'.
Ms Pham was sitting in the back seat of the vehicle being driven to work by her husband at the time of the second accident. It is not clear why she was in the back. She said she heard a 'big bang' and the front of the car was quite badly dented. She thought the plaintiff looked 'very frightened and very scared'. She said he looked pale and was also having a tremor – 'His face looked green and his arms and body were in tremor'. Ms Pham said she drove the plaintiff home after the incident.
Ms Pham said that after the accidents if she asked the plaintiff to drop off or pick up their son from school, sometimes he did and sometimes he did not. She said he did not assist her with housework including cleaning up after dinner.
Ms Pham said that the plaintiff became angry and frustrated. He did not respond to her questions. He did not appear to be normal. Occasionally, he would talk to himself. At night he did not sleep and would go in and out of the bedroom, turning the lights on and off.
She said that on one occasion, after she had finished cooking, the plaintiff was yelling at their son and she was concerned he might hit him. This answer was non-responsive to the question of how the plaintiff treated her after the second accident. However, she did say they are 'not close any more'. Apparently he no longer goes to church and shuts himself in his room. He does not play his guitar or do karaoke. According to her, he just keeps on getting 'worse all the time'. However, this subsequently was clarified such that her evidence was that the plaintiff's condition has stayed the same 'over the last few years'. According to her, he now appears to be scared and, if she asks him to do anything, he says 'Do it yourself'. For this reason she does everything. She no longer depends upon the plaintiff for anything and cannot see anything in her future. She finds everything very tiring. According to her, the medication to assist their sexual relationship did not help.
Presently Ms Pham said she is working about 30 hours per week four to five days per week and is assisted in the home by her brother-in-law who shares the house with them. She has time to take her son to school in the morning before she goes to work. Sometimes her husband takes him to school and sometimes the brother‑in-law. Similarly, sometimes the plaintiff and sometimes a friend, or the brother-in-law, collects their son from school. She maintains she is not prepared to rely upon the plaintiff to collect their son from school because sometimes he forgets.
Ms Pham said when she gets home from work she cooks the evening dinner. Apparently, the plaintiff does not do anything; he just eats and then goes to his room to watch television or to the front of the house to smoke.
In contrast to her brother-in-law's subsequent evidence in the trial, she said, as mentioned, that when she got home from work she did the cooking and cleaned up and this took three or four hours each evening. She maintained that, since the accidents, she did all the work in the house. When asked about the housework and cooking she said 'I do everything'. Ms Pham in examination‑in‑chief was emphatic that she did everything in relation to the cooking and housework. Since the accidents, according to Ms Pham, the plaintiff no longer cuts the grass and this is done by a friend and her brother‑in‑law. She said mowing the lawn takes two or three hours. Apparently, they use a sickle to slash the grass before they mow it, using a borrowed lawn mower.
According to Ms Pham she asked her brother-in-law, Mr Tran, to come over to assist her to look after the plaintiff and to help her because she was unable to do everything. She said that Mr Tran would assist her with the cooking when she got home late from work and, according to her, he also helps with household chores.
Ms Pham said they saved about $12,000 before the first accident, as suggested by Mr Nguyen. According to her, Mr Nguyen said they would require 'just a little bit of money' and he would assist them 'to start up on a small scale and if it is going okay, then increase, you know, the volume'. The proposition that Ms Pham and the plaintiff planned to commence their own market garden was not pressed fully in examination‑in‑chief. This appears to be consistent with the basis upon which the plaintiff now contends damages should be assessed.
In cross-examination, Ms Pham accepted that most of the time while she was at work the plaintiff looked after her son. Importantly, she accepted that she did not ever tell any of the treating doctors about their alleged plans to have a strawberry farm. After the accidents, Ms Pham said she shared the driving with the plaintiff. In cross‑examination she maintained she did the cleaning and tidying up of the house and that her brother-in-law only assisted sometimes with cooking.
Ms Pham had a reasonable understanding of English but gave her evidence through an interpreter. Some allowance therefore needs to be made in understanding her evidence and assessing her credibility. Overall, in my view she was credible and did understand the process and importance of her evidence to the outcome. In my view, she inflated her evidence, for example, by saying she did four hours housework each night after work. In the end, however, it is common ground on the medical evidence that the plaintiff has suffered a significant psychiatric injury and the impact on the household is in the order explained by Ms Pham. I have no doubt the plaintiff has taken the opportunity to contribute less to the household than he did before the accidents. But he is not completely moribund.

Medical evidence

Dr Hiang Chye (Colin) Chan

Dr Chan is a medical practitioner in general practice in Girrawheen. He first met the plaintiff when he treated him on two occasions in 2007 for a middle 'trigger finger' issue.
Dr Chan next saw the plaintiff on 28 April 2010, 13 days after the first motor vehicle accident. This was the last occasion he saw the plaintiff.
The examination‑in‑chief of Dr Chan consisted of the matters mentioned - confirmation that the consultation on 28 April 2010 was in relation to a motor vehicle accident, and the proposition that Dr Chan's notes on that occasion consisted of 'just a date and a long consultation'. This was, initially, confirmed by Dr Chan.
However, in cross‑examination it emerged Dr Chan had made notes of his findings during the consultation and, on production of the notes from his file, it was ascertained there was a second page. Those notes included a reference to what the plaintiff told him, namely he reported the accident to the police, that
his job parenting, student. He used to work in the fruit and vegetable farm. His body was 52 kg. Neck movements were down. Left chest movements okay. Soft tissue injuries – neck, left shoulder, left elbow, headache, couldn't sleep.
It also emerged that, on 30 March 2015, Dr Chan made a summary of the position as he understood it from the notes he made on 28 April 2010, for the purpose of giving evidence.
Dr Chan was unable to communicate with the plaintiff in Vietnamese. It is inferred the consultation was conducted in English.
According to Dr Chan and the notes he made at the time, he was informed by the plaintiff that the motor vehicle accident occurred on 14 April 2010 (this is an error on the part of the plaintiff). Dr Chan said the plaintiff complained of a sore left arm and a headache. He told Dr Chan that he went to the Joondalup Health Campus where he had x‑rays of his head, neck and left arm. According to the plaintiff, there were no fractures. Dr Chan had only a vague recollection of the consultation with the plaintiff (which was about four years earlier). He could not identify the plaintiff if he saw him.
Dr Chan said the plaintiff did not give him any details about what happened to him or the circumstances of the accident as experienced at the time. Dr Chan had no recall of any discussion about whether the plaintiff said he lost consciousness. Similarly, Dr Chan said the plaintiff did not mention how long he was waiting in the vehicle before he was removed.
On examination, Dr Chan said he prescribed Naprosyn (1,000 mg a day), which is a non‑steroidal anti‑inflammatory, to reduce the swelling and pain specifically in the plaintiff's left elbow. Dr Chan said the major complaint by the plaintiff was in relation to his left elbow injury and 'the other main complaints were headache, a sore neck and a sore left knee'.
Dr Chan never saw the plaintiff again.

Dr Anh Nguyen

Dr Nguyen is a medical practitioner and has over 25 years' experience as a general practitioner.
Dr Nguyen saw the plaintiff on 13 May, 28 May, 11 July and 6 August 2010. In his report of 5 September 2010 he said that, on first examination, his clinical finding was the plaintiff 'looked stressful, left knee tenderness' and gave a diagnosis of 'post-traumatic stress syndrome most likely. Possible left knee injury'.
In his report of 20 December 2010, Dr Nguyen said, after further examinations of the plaintiff, his physical examination was 'unremarkable' and his 'mental state examination was unremarkable'. Notwithstanding this, Dr Nguyen recorded the plaintiff's complaints as 'cloudy mind, headache, right lower back pain, being moody, forgetful and lethargic, and vivid dreams and insomnia'.
Accordingly, Dr Nguyen prescribed antidepressant medication, namely Cipramil 20 mg. Notwithstanding the recorded complaints from the plaintiff, Dr Nguyen noted in his report that the plaintiff's symptoms of headache, anxiety, chest tightness and left knee pain have no longer been reported to him since his last report of 5 September 2010. Accordingly, he believed there was no further requirement for the plaintiff to see an orthopaedic specialist or a psychiatrist. Dr Nguyen's evidence was that the earlier reference to headache was subjective and 'not a major feature'.
In his report of 9 April 2011 Dr Nguyen noted the plaintiff was still on antidepressant medication, that he could return to gradual work and, in general, his prognosis was good but that he had referred the plaintiff to Dr Sang.
Dr Nguyen said he was continuing to see the plaintiff and had last seen him on 27 February 2015.
Dr Nguyen produced a schedule of medication prescribed to the plaintiff for the period 5 June 2010 to 20 March 2015. It included a range of different types of antidepressant and anti-anxiety drugs.

Dr Dang (David) L Sang

Dr Sang is a psychologist. He holds a Bachelor of Psychology and a PhD in psychology from the University of Western Australia. He has a number of professional affiliations including membership of the Australian Psychological Society and the International Association for Cross‑Cultural Psychology. Dr Sang is also a professional interpreter and translator for the English and Vietnamese language and holds National Accreditation Authority for Translators and Interpreters (NAATI) accreditation. He has participated in a number of seminars, workshops and published papers.
Dr Nguyen referred the plaintiff to Dr Sang. Dr Sang first saw the plaintiff on 6 April 2011 (nearly 12 months after the first accident). He then saw him on five further occasions, the last on 11 May 2011. At the request of the plaintiff's solicitors Dr Sang prepared a report dated 14 June 2011 in relation to this block of treatment.
Noting that Dr Sang was able to converse with the plaintiff in the plaintiff's native language (Vietnamese), it is interesting to compare the contents of his report with the evidence of the plaintiff. For example, Dr Sang noted in his report that the plaintiff told him 'he was unconscious for about 10 minutes before being taken by ambulance to a hospital'. The plaintiff was cross‑examined as to whether he had told any treating doctors that he was in fact unconsciousness. Dr Sang's notes record that he did, and this must be given some weight because Dr Sang is a medical person and it can be inferred he would appreciate the difference between being conscious and unconscious.
It is also noteworthy that the plaintiff told Dr Sang he saw his general practitioner, Dr Nguyen, the day after he had been released from hospital and complained of headache and severe pain in the left arm and leg. This is inconsistent with Dr Nguyen's notes and evidence, which was that he first saw the plaintiff after the first accident on 13 May 2010 and before the second accident on 1 July 2010. Prior to that, Dr Nguyen had not seen the plaintiff since 25 September 2008 when he was complaining of hayfever. He did see Dr Chan on 28 April 2010, 13 days after the first motor vehicle accident.
According to Dr Sang, the plaintiff told him that he experienced frequent headaches which were 'exacerbated whenever higher cognitive processes such as attention or thinking are required'. He described the plaintiff as having developed 'an elevated level of fearfulness, anxiety and self-doubt. He is afraid of the dark and is frightened to go out of the house at night or open the shed door at the back'.
Dr Sang also noted that the plaintiff complained that he became impotent in intimate contact with his wife and 'feels short of breath and his heart races up when facing anyone, especially someone unfamiliar to him'. This was not apparent when the plaintiff gave evidence during the trial. Interestingly, in his report of 14 June 2011, Dr Sang notes that the plaintiff told him that he becomes anxious and worried about being late for a medical appointment, even if he is well ahead of time. This is in contradistinction to the evidence of Dr Sang that the plaintiff had 'memory' problems and that he (Dr Sang) was at pains to encourage the plaintiff to make notes to ensure that he did not miss medical appointments. Having said that, Dr Sang said the plaintiff never missed his appointments.
In my view, this part of the evidence of Dr Sang is conflicted with his attempts to be defensive of the plaintiff (his patient) and not consistent with the duty of an expert witness to the court. I am not persuaded that there was any actual concern on the part of Dr Sang or the plaintiff that he would forget to attend medical appointments. To the contrary, in my view, those appointments were important to him, especially doctors he was asked to see for the purpose of his claim.
In his report, Dr Sang noted that the plaintiff complained of sleeping problems and, somewhat presciently, that 'the nightmares he has had so far involve a nasty fall from above, getting caught in bloodied fights and jumping for his life from car accidents'. The plaintiff had no memory of telling Dr Sang of the content of his nightmares. In fact, the plaintiff had no memory of any of his nightmares, nor the content of them. I interpose; this may be the product of the effective treatment by Dr Sang, whereby he encouraged the plaintiff to put any negative thoughts or feelings 'on a leaf and to allow them to float down the river'.
Dr Sang also noted that 'severe family stress has arisen due to the role reversal between himself and his wife'. This was explained to be in part for cultural reasons because, according to Dr Sang, in Vietnamese society, the male head of the family is responsible for being the 'breadwinner'. According to Dr Sang, the plaintiff's 'self-esteem has nosedived and it has been extremely hard for his wife to cope with the extra burden'. Dr Sang was cross-examined about this because the evidence suggested Ms Pham was in fact the consistent income earner in the family. According to the plaintiff, she was working three days a week prior to his accident, whereas his work was seasonal and therefore part of the year only. On balance, I am not persuaded by the evidence as a whole that the plaintiff has suffered any particular loss of self-esteem arising out of the perceived role reversal. Both the plaintiff and his wife appear to have worked jointly in various occupations since she first arrived in Australia.
Dr Sang administered three separate tests as part of his treatment which he described as not being determinative in their own right but merely to aid his opinion. According to Dr Sang, the plaintiff scored very high on each of the three separate tests. In fact, the plaintiff's scores seem to be even higher in some respects following completion of the most recent tranche of treatment by Dr Sang. If the results are valid and genuine, this would indicate deterioration rather than an improvement as a result of treatment to date. This raises the question of whether the plaintiff is genuine and committed to helping himself, which was integral to Dr Sang's opinion on the plaintiff's prognosis and future.
The tests, although in written form, were administered to the plaintiff orally by Dr Sang interpreting and reading the questions to him and indicating to him the various possible answers. The vast majority of answers appear to be either the last or penultimate response on the forms, thereby making the scores almost the maximum. It seemed to me there was a risk of bias as a result of the way in which the tests were conducted. As a result, I asked Dr Sang whether he ever put the possible answers to the questions to the plaintiff in reverse order - that is, from the most serious to the least serious. Dr Sang plainly appreciated my point and said that, halfway through each test, he then reversed the order of the possible answers. My assessment of this part of the evidence is that again it was Dr Sang being defensive of the plaintiff. I am not satisfied on balance that he in fact did this as opposed to, for example, every second question in reverse. I am satisfied Dr Sang understood the point of the question.
Putting this issue to one side, Dr Sang's evidence was that he was satisfied that the answers provided by the plaintiff to all of the tests throughout the period of treatment were valid. They were consistent with his observations based on the consultations and treatment provided. As Dr Sang said in examination‑in‑chief (ts 166):
It's very important because – not only from the – the – the tests themselves but, you know, actually from him and from my observation. And that means that sort of – sort of what he's suffering is probably genuine, you know. He's not exaggerating or anything like that, yeah.

The defendants contend Mr Skerritt's estimation of the cost of medication is 'vastly overestimated'. In the alternative, the defendants suggest an allowance of $2,000 for medication, $4,000 for psychiatric treatment and no allowance for GP reviews or counselling. This is predicated on the basis that 'each', (that is, the GP reviews and counselling) has 'been demonstrated to be wholly ineffective in the treatment of the plaintiff's psychiatric illness'. In my view, the evidence is that the treatment algorithm which should have been afforded to the plaintiff was not made available to him. As a matter of fairness to the plaintiff, it is not possible to assess the effectiveness or otherwise of the necessary treatments.
The defendants accept an allowance of $25,000 for the plaintiff to undergo ECT treatment 'as supported by Dr Mander and Mr Skerritt'. On this basis, the defendants' submission is that $31,000 should be allowed for 'future psychiatric treatment'. In my view, some allowance should be made for general practitioner reviews, as accepted by Mr Skerritt and Dr Mander in their evidence in an optimum treatment regime, together with appropriate psychological counselling (which they also accept is necessary).
On this basis, in my view, allowing for about two years of psychiatric treatment, psychological counselling and appropriate regular general practitioner review, the award for future medical and pharmaceutical expenses, including possible ECT treatment if required, is as follows:
1.Antidepressant medication   $3,000
2.12 general practitioner consultations   $1,000
3.6 x psychiatric consultations per annum                $4,000
4.Electro-convulsive therapy (ECT)  $25,000
TOTAL$33,000

Future travel expenses

The plaintiff claims a global allowance of $2,000 for future travelling expenses to and from medical and pharmaceutical providers. In my view this amount should be allowed.

Conclusion and summary

For these reasons, I find the plaintiff has suffered a significant psychiatric injury consisting of a major depressive and anxiety disorder (and possibly post-traumatic stress disorder) as a result of the motor vehicle accidents. In addition, he suffered minor soft tissue injuries in the first accident but none in the second accident. In any event, he has no ongoing physical injuries attributable to the accidents.
The plaintiff's treatment regime to date has been less than optimal. As a result, he has not been afforded appropriate psychiatric care and psychological counselling to treat his psychiatric condition to this point in time.
In my view, based on the evidence, the plaintiff will make a full recovery subject to an appropriate treatment algorithm and this can be expected to be achieved within two years.
In the 10 years prior to the accidents, the plaintiff only ever worked on a part-time seasonal basis for two to three months per year as a market gardener. I am not persuaded that he would have materially changed his working life in this regard but for the accidents. I am not satisfied he is unable to work as a result of his psychiatric condition to the extent claimed in this action.
In summary, the plaintiff’s damages should be assessed as follows:
1.Non-pecuniary loss   $39,850.00
2.Past loss of earning capacity   $30,000.00
3.Future economic loss   $20,000.00
4.Past and future gratuitous services   $9,500.00
5.Special damages (+ $27,575.28 paid)   $3,351.90
6.Future treatment   $33,000.00
7.Future travel expenses   $2,000.00
TOTAL$137,701.90
I will hear submissions from the parties as to the appropriate form of judgment.