Turano v Bartlett
[2014] NSWDC 32
•16 April 2014
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Turano v Bartlett [2014] NSWDC 32 Hearing dates: 20, 21, 22, 23, 24, 28, 29, 30/01/2014, 3, 4 and 5/02/2014 (last evidence and submissions 28/02/2014) Decision date: 16 April 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $639,629;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - plaintiff injured in motor vehicle accident - defendant admitted liability but challenged veracity of aspects of the claim and causal connection of post-traumatic stress disorder and marital breakdown to the accident; DAMAGES - physical and psychological injuries - assessment of claimed heads of damage Legislation Cited: Civil Procedure Act 2005, s 56 - s 58;
Motor Accidents Compensation Act 1999, s 62, s 126, s 136
Uniform Civil Procedure Rules 2005, r 31.19, r 31.24, r 31.26, r 31.35Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180
Miller v Galdaresi [2009] NSWCA 353
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Penrith City Council v Parks [2004] NSWCA 201
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536Category: Principal judgment Parties: John Matthew Turano (Plaintiff)
Craig William Bartlett (Defendant)Representation: Mr A Joseph (Plaintiff)
Mr J Guihot (Defendant)
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2011/18158 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Issues
[3] - [5]
Procedural matters
[6] - [8]
Credit
[9] - [33]
Facts
[34] - [160]
Plaintiff's background
[35]
Plaintiff's pre-accident situation
[36] - [39]
Pre-accident medical history
[40] - [46]
Circumstances of the accident
[47] - [52]
Initial assessment and treatment
[53] - [71]
Changed marital circumstances
[72] - [73]
Daughter's accident
[74]
Subsequent work accident
[75]
Medical and allied assessments
[76] - [160]
Resolution of conflicting psychiatric opinions
[161] - [196]
Consideration of specific credit issues
[197] - [258]
Claim of injuries not sustained
[198] - [208]
Denial of pre-accident back and tinnitus problems
[209] - [226]
Incorrect account of working hours
[227] - [231]
Account of friendship with Mrs Marrapodi
[232] - [240]
Failure to volunteer business plans
[241] - [244]
DVD footage and surveillance evidence
[245] - [258]
Injury findings relating to accident
[259] - [284]
Disability findings relating to accident
[285] - [296]
Mitigation
[297]
Assessment of damages
[298] - [399]
Plaintiff's probable life span
[299]
Non-economic loss
[300] - [305]
Past economic loss
[306] - [323]
Future economic loss
[324] - [349]
Past loss of superannuation
[350]
Future loss of superannuation
[351]
Future domestic assistance
[352] - [381]
Future out-of-pocket expenses
[382] - [389]
Past out-of-pocket expenses
[390] - [398]
Summary of damages assessment
[399]
Disposition
[400]
Costs
[401]
Orders
[402]
Nature of case
The plaintiff, John Matthew Turano, has brought these proceedings claiming damages against the defendant, Mr Craig Bartlett, for physical and psychological injuries the plaintiff sustained as a result of a motor vehicle accident that occurred at about 10:00am on Tuesday 13 November 2007.
In that accident, the plaintiff's vehicle was struck head-on by a runaway box trailer that appeared in his path after having veered onto the incorrect side of the roadway. The trailer had beforehand become dislodged from it's mountings on the defendant's vehicle, which had been travelling in the opposite direction to the plaintiff's vehicle. The proceedings are governed by the Motor Accidents Compensation Act 1999 ["MAC Act"].
Issues
The defendant has admitted liability in respect of the subject accident, however the extent of the plaintiff's entitlement to damages was in substantial dispute in these proceedings.
Underpinning that dispute the defendant challenged the credibility of aspects of the plaintiff's evidence on a number of bases, including the nature and extent of the claimed injuries, the claimed disabilities, and the effects those matters have had upon the plaintiff concerning his entitlement to damages. The parties were unable to agree on any significant aspect of the plaintiff's claim, including the extent of the plaintiff's out-of-pocket expenses.
There were significant differences of opinion between the two expert psychiatrists who had been retained by the solicitors for the respective parties to provide opinions on the nature and cause of the plaintiff's psychological problems, including whether the plaintiff had accident-related post-traumatic stress disorder ["PTSD"] and depression. The plaintiff claimed those matters were as a result of the subject accident. The basis for those differences of opinion between the respective experts required consideration for resolution of those differences. Both of those experts gave oral evidence.
Procedural matters
Despite an estimate of 3 days for the trial, the hearing occupied a total of 10 hearing days. The underestimate was in part due to the plaintiff's state of upset when giving his evidence, and also in part due to the failure of the parties to recognise the utility of arranging for concurrent expert evidence as a means of justly, quickly and cheaply resolving the expert medical issues to be determined: Civil Procedure Act 2005, s 56 - s 58; Uniform Civil Procedure Rules 2005, r 31.19, r 31.24, r 31.26, r 31.35.
The trial took place against a background of significant procedural delays. The plaintiff's claim had been filed late. There were some 18 procedural listings before the final hearing date was allocated to commence on 20 January 2014. In the meantime, three earlier hearing dates scheduled 13 March 2012, 15 May 2012 and 1 August 2013 had to be vacated as a result of complications associated with medical assessment procedures under the MAC Act.
In that regard, the plaintiff has undergone numerous MAS assessments and two MAS reviews. In that timeline, there was also an application to the Supreme Court for administrative relief. At the conclusion of evidence in these proceedings, on the 9th day of the hearing, the defendant unsuccessfully applied to have the proceedings referred yet again for a further MAS assessment pursuant to s 62 of the MAC Act.
Credit
The defendant asserted that the plaintiff was a witness whose evidence should not be accepted without corroboration. The defendant also asserted that for the purposes of obtaining financial gain from these proceedings, the plaintiff had exaggerated the effect his injuries have had upon him. For the reasons that will become apparent in the course of my judgment, I have not accepted either of those submissions.
In support of those submissions on credit, the defendant relied upon documents, including those assembled as part of the medical assessment process undertaken by successive MAS assessors.
The defendant also relied upon the content of a series of three collages of DVD video footage, Exhibit "4", Exhibit "7" and Exhibit "18", which showed some of the plaintiff's activities that were observed by insurance investigators in October, November and December 2011, December 2013 and January 2014. For the reasons I shall separately set out, I consider that the DVD footage was unpersuasive as a source of support for the submissions made on behalf of the defendant, to the effect that the case sought to be made on behalf of the plaintiff lacked credibility.
The plaintiff tendered a diary that had been kept by his former wife at his direction. That diary had been kept on advice, concerning the period December 2007 to March 2008: Exhibit "B", Tab 3, pages 22 to 33. Initially, page 21 of that Exhibit was objected to, and the remainder was admitted without objection. Whilst that page did not form part of the initial Exhibit, a copy of it was later admitted over objection as Exhibit "D".
That diary was the subject of cross-examination of the plaintiff: T140.8 to T147.8. The defendant suggested to the plaintiff that the diary was not contemporaneous but had been written at a later time than the stated dates. It was further suggested that this had occurred for the purpose of diarising symptoms at those times, the implication being that the plaintiff was not affected by those symptoms as he claimed: T145.5. I accept the plaintiff's evidence as to the falsity of that suggestion: T145.10.
In final submissions, the defendant made a generalised attack upon the credit of the plaintiff by arguing there was no corroborative evidence called to support the plaintiff's claim that his pre-accident personality had changed as a result of the accident. That attack was in part based on opinion evidence from the defendant's medico-legal psychiatrist, Dr Thomas Newlyn, who considered that the plaintiff had a pre-accident underlying histrionic personality disorder.
The expert psychiatrist retained by the plaintiff's solicitor, Dr Michael Diamond, found no evidence to support the diagnosis proffered by Dr Newlyn. When scrutinised, Dr Newlyn's opinion was shown to have been based upon an impression for which he called upon his clinical experience, rather than on identifiable factual reasons that could be articulated by him and examined for reasonableness and probity: T601.30 and T602.6.
In developing the attack on the plaintiff's credit, the defendant submitted there was no explanation for the failure to call "before and after" witnesses. In that regard, it was argued that the plaintiff's ex-wife, his children, his mother, his brothers, his former employers, or anyone who knew him before the accident, could have been called to give evidence of his pre-accident situation. The defendant submitted that the fact such witnesses were not called should lead to the inference that the evidence of these witnesses would not have assisted the plaintiff's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
In my view that submission proceeds upon the false premise that the plaintiff's evidence has been shown to have required corroboration. In my view, the plaintiff's evidence was capable of being assessed for truthfulness on its face, without the need for corroborative evidence.
A further false premise underpinning the defendant's submissions concerning the credibility or reliability of the plaintiff's evidence is that the plaintiff's evidence has been said to have been relevantly shown to be in parts unreliable, which, it was said, therefore necessitated that his evidence required corroboration before it could be accepted.
The aspects of the plaintiff's evidence to which the defendant points in that regard, were portions of the recorded histories in summary form in various medical reports tendered in the proceedings. In my view, that method of seeking to traduce the evidence of a party must proceed with caution and with the requirements of procedural fairness in mind. That is especially so in a case such as this where the evidence of the precise terms of the questions and answers that led to the summaries recorded in the reports, remains largely absent and open to uncertain speculation, and therefore out of reach for a reasoned analysis for the purposes of seeking to draw soundly based adverse inferences in the manner submitted by the defendant: Mason v Demasi [2009] NSWCA 227.
That need for caution is underlined in circumstances where there was expert evidence that the plaintiff's emotional problems were causing him some cognitive difficulties and where some of the medical examinations upon which opinions were based, were carried out in difficult circumstances due to the plaintiff's emotional state.
During the trial the plaintiff was observed to give much of his evidence in a state of emotional upset. In that regard, he was defensive when challenged as to the accuracy of his evidence. He was also at times garrulous in his answers to questions, and he had difficulty focussing on the topics on which the cross-examiner sought to engage him. As occurred in medical examinations, at times his evidence went off in tangents to the issue at hand. In the face of persistent attack upon his credit he was at times anxious to emphasise that his evidence was truthful and unembellished. The flow of his evidence was at times interrupted when he was overwhelmed by his emotions.
The defendant also argued that the plaintiff's demeanour in court was a significant matter that detracted from the credibility of his evidence. In that regard, it was argued that the plaintiff limited his responsive answers to questions that assisted his case, as distinct from answers to questions in cross-examination, where he was, it was submitted, "deliberately unresponsive when he perceived the answer as being unhelpful to his case".
In my view it has not been shown that the plaintiff's answers to questions put in cross-examination were deliberately unresponsive. The submission to that effect has to be viewed in light of the plaintiff's difficulty in maintaining focus on some of the questions that were asked of him, a phenomenon that also occurred in the course of his evidence in chief, for example, at T167.17.
It is true that the plaintiff's demeanour in court was at times agitated. He exhibited upset, anger and frustration. He was also resentful of prolonged and repeated questioning in cross-examination. However, those circumstances must also be seen as having arisen against a background of frustration due to the labyrinthine procedural delays that have occurred in the proceedings, including multiple MAS Assessments, MAS reviews, an application to the Supreme Court, and the fact of three previously adjourned hearing dates, as is noted on the court file.
Also relevant to the consideration of the defendant's submission on the plaintiff's demeanour is medical evidence which suggests that the prolonged procedural timeline and pathway taken for these proceedings to reach finality has had a deleterious effect on the plaintiff's mental health, as was explained in the evidence of Dr Diamond, and which was no doubt influential on the plaintiff's frustration.
Also relevant to that consideration was the oppositional approach taken by the defendant to the plaintiff's claim and the plaintiff's reaction to the veracity of his claim being doubted over a prolonged and sustained period of time.
In view of those matters, I therefore find myself unable to accept the conclusion sought by the defendant's submission on the plaintiff's demeanour. That submission appears to me to be overly simplistic, and it fails to take into account the complexity of the matters that were influential on the plaintiff's state of frustration at the time when he gave his evidence.
Also relevant to the assessment of the credibility of the evidence of the plaintiff, is the unchallenged evidence that the plaintiff has exhibited considerable anxiety and stress concerning his post-accident situation, including problems with his concentration, putting aside for present purposes, the contested issue of whether he suffers from accident-related PTSD, or whether the accident was the cause of his marital problems, a matter that stands to be resolved on a factual analysis and by reference to an evaluation of the conflicting medical opinions.
Having undertaken those evaluations, my consideration of the preceding matters leads me to conclude that the plaintiff's credibility should not be determined by a demeanour-based consideration, but instead, it should be assessed on a consideration and evaluation of the specific issues upon which his credit was attacked.
Foremost amongst those issues was the defendant's submitted assertion that the plaintiff gave deliberately untruthful evidence for the purposes of financial gain from the proceedings: T702.43 - T703. In my assessment, there was no direct evidence that sustains such a submission. In my view, neither is there sufficient evidence to compel the drawing of a reasonable inference to that effect. The tenor of the defendant's submission in this regard was contrary to my own impression of the plaintiff's evidence. I therefore do not accept that submission.
The remaining more specific bases of the attack upon the plaintiff's credit are more conveniently addressed in the evidentiary and procedural context in which they arose, and after a review of the medical evidence to establish the framework for assessment. My reasons for the conclusions reached on each of those matters appear in those places in the judgment that set out the evaluation of those matters, and can be conveniently summarised as comprising the following submissions:
(a) It was submitted that the plaintiff claimed to have suffered injuries that, the defendant asserts, have been shown not to have been sustained in the accident: Defendant's written submissions paragraph [9]. My analysis and findings on those submissions appear at paragraphs [198] to [208] of these reasons for decision;
(b) It was submitted that the plaintiff's denial of any pre-accident lower back and tinnitus problems is not supported by the clinical records of his treating doctors: Defendant's written submissions paragraphs [10] - [11]. My analysis and findings on those submissions appear at paragraphs [209] to [226] of these reasons for decision;
(c) It was submitted that the plaintiff had given incorrect historical accounts concerning his working hours and this was said to have involved deliberate untruthfulness: Defendant's written submissions paragraphs [12] - [14]. My analysis and findings on those submissions appear at paragraphs [227] to [231] of these reasons for decision;
(d) It was submitted that the plaintiff gave a deliberately untruthful account of the formation of his friendship with the witness Mrs Theresa Marrapodi, his partner in a recently formed business: Defendant's written submissions paragraphs [12] - [14]. My analysis and findings on those submissions appear at paragraphs [232] to [240] of these reasons for decision;
(e) It was submitted that the plaintiff was untruthful in his account of his work situation or plans in that he failed to volunteer to medico-legal examiners the fact that he had business plans with Mrs Marrapodi: Defendant's written submissions paragraphs [15] - [17]. My analysis and findings on those submissions appear at paragraphs [241] to [244] of these reasons for decision;
(f) It was submitted that DVD footage taken in November 2011, and between 5 December 2013 and 14 January 2014 showed the plaintiff to have been performing a range of tasks, including working in his own business, which contradicted his evidence in significant respects: Defendant's written submissions paragraph [20]. My analysis and findings on those submissions appear at paragraphs [245] to [258] of these reasons for decision.
At this point, in summary form, it is sufficient to state that for the reasons that I have set out in the course of my consideration of the above issues, my concluded assessment of the plaintiff's credibility as a witness is that the defendant has failed to make good the attack sought to be made upon his credit.
I have concluded that the plaintiff has not exaggerated his claim for financial gain, as was submitted by the defendant, and I do not accept the submission to the contrary. After cautiously considering the content and context of the plaintiff's evidence I consider he has given his evidence truthfully, according to the best of his ability, albeit in the face of difficulties with focus, concentration, and difficulties he has in controlling his emotions, including his frustration at the legal process.
Facts
In the paragraphs that follow, and unless otherwise qualified, as a precursor to my findings on the plaintiff's injuries and disabilities, I set out my findings of fact concerning the plaintiff's background circumstances and medical history, the non-controversial facts surrounding the accident, the plaintiff's complaints of injury, the contemporaneous record of any injuries and early treatment, and the details of the subsequent medical and allied assessments undertaken of the plaintiff.
Plaintiff's background
At the hearing, the plaintiff was in his 50th year. He was aged 43 at the time of the accident. His secondary schooling ceased at the level of Year 11. His pre-accident work experience has been variously, working in a supermarket, working in his father-in-law's concreting business, working as a construction labourer, and working in fruit shops. Essentially, for many years, the plaintiff had been working in fruit shops. He had aspirations of being a manager or an owner of such a business.
Plaintiff's pre-accident situation
The plaintiff married in 1985 when he was 21 years of age but he is now divorced, a matter he considers to have been caused by the accident. He has two children, a daughter and a son, who are presently respectively aged 24 and 16.
There were a number of stressors in the plaintiff's pre-accident background. There is a history of some family difficulties in that in about 2000, following the death of his father, his older brother was said to have perpetrated a substantial fraud on the family finances, which subsequently led to criminal proceedings being brought against that brother. Those circumstances had caused some strain in the plaintiff's marriage, as well as some financial strain for the plaintiff. In those events his wife had left the marriage for about 3 months. The plaintiff suffered a depressive illness in that context and as a result gained weight. However, he was treated successfully with antidepressant medication, and he later worked hard to recoup the financial losses he had incurred due to the fraudulent activities of his brother.
Another pre-accident stressor for the plaintiff was the loss of some money, said to be several thousands of dollars, which he had loaned to his daughter's former boyfriend, who had subsequently failed to repay that loan. The plaintiff also experienced some interpersonal difficulties with his daughter as she was growing up.
There was no compelling evidence to suggest that at the time of the subject accident, any of those pre-accident factors were continuing to have any significant adverse effect on the plaintiff's psychological status, or on his earning capacity. If anything, those matters raised the possibility that the plaintiff may have been vulnerable to developing psychological problems when confronted with significant stressors that had the effect of upsetting the equilibrium of his life and his finances.
Pre-accident medical history
The plaintiff had some pre-accident physical health issues. He had been diagnosed with either type II diabetes or a pre-diabetic condition, which was controlled by diet. It is not clear from the evidence as to when this was diagnosed. In 2005 it was noted that he had hypertension. In that same year the plaintiff was noted to have had an episode of plantar fasciitis in his right foot, which was apparently treated with anti-inflammatory medication.
On 8 March 2006 the plaintiff's general practitioner noted an instance of central lower back pain without radiation or restriction of movement. There was no other record of any similar pre-accident notations of low back pain.
On 28 January 2007 his general practitioner noted the plaintiff had some ringing in his ears, or in his left ear, in the context of a sensation of having a blocked right ear and a build-up of wax in both ears.
The plaintiff also had congenital chorio-retinal scarring in both eyes, which has resulted in a degree of reduced visual acuity. In early 2007 he underwent cataract surgery to his left eye, at which time he received an implanted intra-ocular lens, which subsequently improved the vision in that eye.
There is no sound basis within the evidence for inferring that any of the foregoing pre-accident health matters, including the plaintiff's eyesight issues, had any lasting deleterious impact upon the plaintiff's pre-accident earning capacity in the industry in which he was engaged, or indeed in similar vocations.
Furthermore, there was no evidence of the plaintiff having suffered any significant psychiatric problems in the few years or months leading up to the subject accident on 13 November 2007. That said, it is quite possible that pre-accident, by reason of his psychological make-up and life's experiences, he was vulnerable or predisposed to react poorly to significant stressors likely to cause him to suffer psychiatric problems. However, there is no sound basis in the evidence to conclude that before the subject accident, any such vulnerability or predisposition was interfering with the plaintiff's amenity of life, his earning capacity or his functioning.
On the day of the subject accident the plaintiff was driving to work in order to commence employment in a new position, which had been offered to him several weeks earlier. His new employer had sought him out in order that he would manage a fruit shop at Wattle Grove. This was a forward step for the plaintiff in the context of his ambitions for advancement in his work.
Circumstances of the accident
The subject accident occurred shortly after 9.00am on 13 November 2007. It occurred suddenly and without warning. At the time, the plaintiff was lawfully driving his vehicle at about 60kph along Elizabeth Drive, Liverpool, when he became aware of the defendant's vehicle, a truck, travelling in the opposite direction.
In those events the plaintiff became aware of the fact that a box trailer had become detached from the defendant's vehicle, and that the unhooked attachment end of that trailer was on his side of the roadway, following which a forceful impact occurred when the trailer bounced off the median strip and into collision with the front of the plaintiff's vehicle. In the lead-up to the collision, the plaintiff held onto the steering wheel. He was unable to do anything to avoid the ensuing collision. In the impact his head hit the steering wheel as he braced himself in the events of the collision.
The occurrence of the accident was a considerable shock to the plaintiff. In giving his evidence, he became tremulous and upset when relating those events. He described the event as a "horrifying ... and ... just terrifying experience". He said, and I accept, that he became sweaty when just thinking about the accident. He displayed considerable distress when giving evidence of the events of the accident.
In the course of clarifying the nature of the collision, the plaintiff was shown a copy of the following photograph of the damage to the front of his vehicle.
That photograph, comprising Tab 4 of Exhibit "B", provided some indication of the nature and force of the collision. In his oral evidence in that regard, and in the summarised descriptions within various medical reports, it is evident that the plaintiff gave consistent and believable accounts of his feelings of distress and horror with flashbacks over the occurrence of the accident, and concerning the effect that it has had upon him and upon his life.
The accident has obviously had a shocking and devastating effect upon the plaintiff. It is plain from his evidence that those effects still continue to impact upon him over 6 years later.
Initial assessment and treatment
The defendant submitted that with respect to physical injuries, the plaintiff "suffered no more than a relatively minor soft tissue injury to his neck and three left-sided fractured ribs at 7, 8 and 9 with minimal displacement". In my view, that submission greatly understates the effect that the accident has had upon the plaintiff.
The defendant's submissions conceded the plaintiff has sustained a minor abrasion to the head. The defendant argued that the plaintiff had not suffered any injuries to his lower back, to either shoulder or to his right knee. Those submissions will be revisited after I have reviewed the entire fabric of the medical evidence as well as the evidence of the plaintiff.
The defendant also submitted that "if the plaintiff suffered from any psychological symptoms following the car accident that any such symptoms were insignificant, and did not interfere with his capacity for work". In that regard, the defendant's position was that any psychological problems suffered by the plaintiff related to his marital separation and subsequent divorce, and not as a result of the subject accident. That position was founded upon the opinion of Dr Newlyn, the basis of which requires evaluation, along with the other psychiatric evidence.
The approach taken by the defendant on the issue of the nature and extent of the plaintiff's physical injuries was to discount the plaintiff's oral evidence in which he gave an account of his injuries. Instead, the defendant relied only upon the contemporaneous records of the plaintiff's injuries.
Whilst that approach is in some cases warranted, for the reasons that follow, I do not consider this to be such a case. In this case, I consider that approach is an inappropriately overly simplistic one.
After the collision, when the door of the plaintiff's vehicle was opened, consistent with the nature and circumstances of the collision, he was in shock. When he got out of his vehicle he fell to the ground. At that time he was experiencing breathing difficulties. An ambulance was called to attend.
The plaintiff's descriptions of the pains he felt after the accident have to be read in conjunction with his state of shock in the immediate aftermath of the accident, and in light of the fact that he initially felt he was gasping for breath, and in circumstances where he thought he was not going to survive the accident. There is little room for doubt that the plaintiff was greatly distressed by the accident at the time, and by his injuries, both from a physical and psychological perspective, and that he was in what he described as being unbearable pain. He had been subjected to a frightening experience and he was experiencing significant pain from his physical injuries.
The ambulance came to the scene at 9.34am and commenced attending to the plaintiff. The best copy of the ambulance report, Exhibit "E", is in parts difficult to read due to the inclusion of photocopying artefacts despite it being the best copy available.
It appears that at the accident scene the plaintiff had complained of left rib pain which increased on palpation as well as on inspiration. He was also observed to have had some swelling to his forehead. His respiration rate was recorded to be 19, his systolic blood pressure was recorded to be 150, there was no note of the diastolic reading. It was noted that he was "notensive", which may have been an abbreviation for normotensive. The note is not clear. The plaintiff was under the impression that his blood pressure was very high at the scene.
The ambulance report contained no notation of any medications having been administered to the plaintiff at the scene. The portion of the ambulance report providing an injury and pain diagram cannot be reliably interpreted because it is in parts unreadable due to the apparent inclusion of photocopying artefacts.
It was noted in the ambulance report that the plaintiff had declined the offer of ambulance transport to hospital, although this was considered necessary by the ambulance officer who assessed him at the accident scene and offered to take him to hospital. The plaintiff said that after being attended to at the scene, he declined to go with the ambulance, instead preferring to be attended to by his wife, who was only a relatively short distance away.
Ultimately, the plaintiff's wife took him to Fairfield Hospital after first returning home to close up their house. In my view, nothing turns on the fact that the plaintiff declined the offer of ambulance transport in favour of being transported to hospital by his wife, especially since there was no indication from the ambulance officer's assessment that his injuries were considered to be life-threatening at that time. In my view no adverse inferences against the plaintiff as to the nature or the extent of his injuries arise from those circumstances.
In assessing the extent of the plaintiff's injuries, the ambulance report must be read in conjunction with the plaintiff's own evidence of the distress he was experiencing at the time, and of him being in considerable pain, which he described generally as being "everywhere": T39.3.
At Fairfield Hospital, the triage form briefly noted that the plaintiff had been registered at the hospital at 11.26am, and that he was then first seen to at 11.39am on the day of the accident. The medical issues affecting the plaintiff as recorded at the time of triage were abrasions to the head and pain in the left ribs.
The next recorded time entry in the hospital notes were comments in the clinical notes to the effect that the plaintiff was alert, oriented and had a small wound on his forehead. At that time it was noted that he was also complaining of pain around his upper left chest on inspiration. At 13:10hrs he was sent for an x-ray. At 13:30hrs he was given paracetamol for his pain. The subsequent clinical progress notes recorded the presence of a small wound to the forehead and pain in the upper chest on inspiration. The plaintiff's head wound was attributed to contact with the steering wheel.
The hospital clinical notes contain two pages of untimed and undated handwritten notes made by an emergency department registrar, who recorded the opinion that the accident in question had not been major, apparently based on the proposition that no death was involved. After noting the plaintiff had not lost consciousness in the accident, confusingly, the registrar's note stated that there was "no head injury, apart from mild trauma to the head by the wheel". The notes made by that registrar also included a notation to the effect that when examined, the plaintiff was slightly short of breath.
The chest x-ray report in the hospital notes was stated to be a preliminary report. That report stated that no definite displaced [rib] fracture could be seen,
The plaintiff was then discharged from hospital at 14:34hrs. The hospital discharge summary noted that the plaintiff had seat belt marks over his chest wall and that he had bruises over his left chest wall. It was noted that a chest x-ray had not shown any rib fractures and it was suggested the plaintiff needed observation concerning the possibility of him having a delayed rupture of the spleen which turned out not to be the case. Otherwise, it was noted that the plaintiff was given reassurance, and Panadol for his pain. He was also advised to see his general practitioner for further management.
Before resolving the disputed question of the actual injuries the plaintiff sustained in the accident, it is appropriate to first review the entire fabric of the medical evidence comprising the medical and allied assessments of the plaintiff in order to assist in the determination of which of the claimed injuries under challenge by the defendant, were on the balance of the probabilities, likely to have been caused by the subject accident.
Changed marital circumstances
In about January or February 2010, the plaintiff and his wife underwent marital separation. She took the children with her and she later divorced him. The plaintiff attributes the breakdown of his marriage to the change in his personality and behaviour that occurred after the subject accident. He said that the effects of the accident had made him become angry, irritable and he withdrew himself from the relationship because he was in pain and he was upset. That account does not seem improbable. I accept the plaintiff's evidence in that regard.
In these proceedings, the relevance of the marital breakdown was that it became the focus of an increased level of distress for the plaintiff in the months that followed and then thereafter. The defendant argued that the marital breakdown was the cause of the plaintiff's psychological problems, and not the motor vehicle accident. That is a matter to be determined in the course of resolving the conflicting medical opinions as to the cause of the plaintiff's problems.
Daughter's accident
In early 2010 the plaintiff's daughter was involved in a motor vehicle accident. That event obviously caused the plaintiff some concern and upset as a parent. The plaintiff disputed that his psychological issues were due to that event: T138.8 - T140.6. That issue stands to be determined by reference to the evidence of the plaintiff and on an analysis of the differing psychiatric opinions.
Subsequent work accident
On 30 July 2010, the plaintiff tripped or fell on a mat whilst he was at work and injured his right knee. This occurred at a time when he said he was generally not focussed at work: T155.34 - T156.6. That injury was later diagnosed as a fractured patella and some further left-sided rib fractures. This required the plaintiff to have operative treatment and caused him to remain off work on workers' compensation for some months. The defendant argued that the resultant physical and psychological distress from the effects of the knee injury was the focus of the plaintiff's psychological problems. That too is a matter to be determined in the course of resolving the conflicting medical opinions.
Medical and allied assessments
The plaintiff has been subjected to a great number of medical and medico-legal and allied assessments, including a significant number of MAS assessments. It appears that not all of the reports from those assessments were tendered in evidence.
In the paragraphs that follow, the chronology of the medical assessments referred to in the evidence is set out as a background to the analysis and factual resolution of the nature and extent of the plaintiff's injuries, the conflicting medical opinions, and the extent of the plaintiff's disabilities.
On 21 November 2007, the plaintiff saw Dr Steven Zhang, a general practitioner at the Edensor Park Medical Centre. Dr Zhang's note of that consultation included the following details:
"... c/o pain along back of neck, left side of chest wall and LUQ unable to sleep at night and 'flush back" (sic) of the accident ... Bruising on left shin ..." [Exhibit "8"]
Dr Zhang subsequently left the Edensor Park Medical Centre. Later attempts to obtain further information from Dr Zhang revealed that he had no interest in personal injury compensation and he was unable to further assist: Exhibit "B", Tab 26. Later, and at the request of the solicitor for the plaintiff, on 26 August 2009, and after gaining access to his previous consultation notes, Dr Zhang prepared a certificate setting out his clinical findings of that consultation to be that the plaintiff had pain along the back of his neck with restriction of movement, pain in the left side of his chest wall and his left upper quadrant, with large bruising and tenderness to that area. Bruising to the left shin was also noted. He also noted the plaintiff was experiencing flashback to the accident: Exhibit "B", Tabs 26 and 27.
On 24 November 2007, the plaintiff's general practitioner, Dr Mehmet saw him and noted left rib fractures anteriorly, and "whiplash injury c-spine".
On 24 November 2007, at the request of his general practitioner, the plaintiff underwent a further chest x-ray which was reported upon by Dr Collis. This revealed fractures of the anterior ends of the 7th, 8th and 9th ribs with minor displacement.
On 1 December 2007, another general practitioner at the Edensor Park practice, Dr Tjondro, saw the plaintiff and noted "# L ribs ... O/E c/spines mild discomfort midline; full rom No focal neuro signs. T/L spines non tender. Gait normal. Sub ungual haematoma both big toenails ...". The significance of the general practitioner's notation of an examination of the thoracic and lumbar spines requires evaluation in the context of the plaintiff's claim of having sustained an injury to his lower back in the subject accident.
On 30 June 2008, at the referral of his general practitioner, the plaintiff consulted Dr EM Gregory, a consultant ophthalmologist. He did so because he was concerned that he had hit his head on the steering wheel in the accident, and because he felt that his vision had deteriorated. The plaintiff's concern was that an intraocular lens inserted in his left eye by Dr Gregory in 2007 following cataract surgery might have been adversely affected in the subject accident. Dr Gregory found the plaintiff had no accident-related visual problems. Dr Gregory took the opportunity to correct an unrelated eye problem.
On 20 and 25 July 2008, the plaintiff consulted Dr N Romeo at the Edensor Park Medical Centre. Dr Romeo recorded the plaintiff's main complaints to be pain on the bridge of the nose, left-sided chest tenderness, low back pain and left shoulder pain.
On 23 July 2008, at the request of his general practitioner, the plaintiff underwent a CT scan of his facial bones. This was because of a report of injury having occurred to the bridge of his nose. The resultant scan was reported as revealing no abnormality.
On 4 August 2008, Dr Romeo referred the plaintiff to Dr Ron Bova for an ENT consultation for assessment of his tinnitus which was claimed to have worsened since the accident. There was no evidence from Dr Bova concerning the results of that assessment.
On 14 June 2009, Dr Romeo referred the plaintiff to Dr Viyjay Maniam for assessment of his persistent low back and left shoulder pains. The timing of the onset of the plaintiff's low back pain was not recorded in the referral or in the tendered notes. At that time, Dr Romeo considered that the plaintiff should not carry out heavy manual work. He considered the plaintiff's problems had not yet stabilised and he expressed a guarded prognosis.
On 17 June 2009 the plaintiff attended upon the practice of the Edensor Park Medical Centre seeking the whereabouts of Dr Zhang regarding assistance with his motor vehicle accident in 2007. That enquiry led to Dr Zhang's medical certificate dated 26 August 2009, as earlier described. The subsequent notes of that practice are very sparse, and relate to the plaintiff's attendances on 11 May 2010 and 11 July 2010: Exhibit "8".
On 30 June 2009, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad took a history of the plaintiff having been diagnosed at hospital with "four fractured ribs, pain in his neck, back and a head injury". That historical summary was not entirely correct in that there was no hospital diagnosis of rib fractures, these, namely 3 fractures, were found later, and there was no record in the hospital notes of a diagnosis of back injury. The defendant challenged Dr Conrad's opinion on the plaintiff's back problems being accident-related on the basis that Dr Conrad had relied upon an incorrect history.
On 1 July 2009, the plaintiff was examined by Dr Vijay Maniam, an orthopaedic surgeon. In addition to the three fractured ribs on the left side, Dr Maniam diagnosed a soft tissue injury to the anterior chest wall, a musculo-ligamentous strain to the cervical spine, and inter-vertebral disc protrusion at the level L5/S1, and severe impingement of the left shoulder. Dr Maniam considered that these problems stemmed in large part from the subject accident. Dr Maniam's evidence was not the subject of cross-examination.
On 7 July 2009, at the request of Dr Maniam, the plaintiff underwent radiological imaging tests comprising a left shoulder ultrasound, which was reported as showing sub-deltoid bursitis with bunching, and a lumbar CT scan, which was reported as showing degenerative changes at multiple levels particularly affecting the lower apophyseal joints.
On or about 15 November 2009, the plaintiff was examined by Dr Tai Tak Wan. Dr Wan prepared a report of that date. It formed part of the MAS review process but it was not tendered in the evidence: Exhibit "B", Tab 44, p 596, report p 8.
On 18 November 2009, the plaintiff consulted Dr K Sellathurai, a general practitioner, complaining of decreased vision in his left eye, ringing in his left ear, constant neck and back pain, left shoulder pain and restricted movement, and pain over the sites of rib fractures. Dr Sellathurai described the plaintiff as having been involved in a frightening motor vehicle accident, and noted the plaintiff was troubled with constant headaches and post-concussion syndrome. He described the plaintiff as being well-motivated and continuing to work. He expressed a guarded prognosis.
On 12 February 2010, at the request of his general practitioner, the plaintiff commenced a series of fortnightly therapy consultations with Ms Ishana Harrysunker, a clinical psychologist. At the time of preparing her report on those consultations, she noted that the plaintiff was taking prescribed anti-depressant medication. Ms Harrysunker cited the history of the plaintiff's accident-related psychological problems as follows:
"On a mini mental state examination, Mr Turano experienced difficulty with concentration, recall of events and attention. Mr Turano stated that after the accident, he has difficulty remembering things and that he finds it hard to focus. Mr Turano stated that since the accident, he becomes angry and frustrated easily due to chronic pain to his shoulder and upper back, constant ringing in his left ear and experiencing intense headaches, for which he takes Panadol. Mr Turano mentioned that since the accident, he has suffered hypertension (elevated blood pressure). Due to his constant anger outbursts, yelling and depressed mood, Mr Turano mentioned that his wife and children moved out of the family home in January 2010."
Significantly, Ms Harrysunker stated that the plaintiff "... also requires psychological treatment to help him cope with the recent separation from his wife and children." The clear implication of that need for treatment was that the underlying problems described as the need to cope with chronic pain, depressed mood and anger, was an accident-related issue.
On this occasion, Ms Harrysunker performed tests on the plaintiff, which revealed severe levels of anxiety and stress. Those test results, which were not the subject of challenge, were reported in the following terms:
"The Depression and Anxiety Stress Scale (DASS) was used to determine Mr Turano's levels of stress and anxiety. The DASS is a self report measure which assesses the severity of the core symptoms of anxiety and stress and allows the development of a profile contrasting Mr Turano's response to the normal population.
The Depression Scale measures the extent to which an individual is in a state of low self esteem, low mood and motivation. Mr Turano's score on the Depression Scale indicates a rating of a severe level of depression. Mr Turano is currently taking antidepressant medication. On the Depression Scale, Mr Turano reported: an inability to experience any positive feeling, cannot seem to get going, nothing to look forward to, feeling sad and depressed, losing interest in everything, life isn't worthwhile, feeling worthless, difficulty being motivated, cannot get enjoyment out of things he does, feeling down-hearted and blue, and perceiving life as meaningless.
The Anxiety Scale measures the extent to which an individual anticipates future negative events and fears an immediate threat of harm. Anxiety is likely to develop when an individual confronts performance demands that are significant to the individual, a person has low self esteem or high performance demands that are testing his or her self esteem, a person perceives a high probability of failure and a person has a low threshold of the activation of the fear response system. Mr Turano's score indicates a severe level of anxiety. On the Anxiety Scale, Mr Turano reported: perspiring noticeably, dryness in the mouth, breathing difficulty, difficulty relaxing, using a lot of nervous energy, being in a state of nervous tension, feeling terrified, worried about situations in which he may panic, and experiencing trembling.
The Stress Scale measures the extent to which an individual experiences an enduring state of high arousal followed by persistent difficulty in meeting troublesome demands of life. Mr Turano's score indicates severe levels of stress. On the Stress Scale, Mr Turano reported: getting upset by trivial things, a tendency to over-react to situations, finding it hard to wind down, difficulty relaxing, using a lot of nervous energy, feeling irritable, finding it hard to calm down after something upsets him, and becoming agitated easily.
Psychological treatment included Cognitive Behaviour Therapy to challenge unhelpful thinking styles and to improve mood, trauma counselling to assist Mr Turano to cope with his changed circumstances after the accident, especially his marriage breakdown and alienation from his children. Mr Turano had also commenced antidepressant medication to reduce his levels of stress, depressed mood and anxiety. The combination of psychotherapy and medication has resulted in an improvement in Mr Turano's moods, outlook in life and has reduced depressed feelings. Mr Turano is coming to terms with his wife's separation as he strongly believes that they may reconcile in the future. However, he misses his children and feels isolated and lonely living by himself."
Those findings provided a useful background framework to assist in achieving an understanding of the plaintiff's presentation when he gave his evidence in these proceedings.
Ms Harrysunker's unchallenged opinion was that as at April 2010, the plaintiff's depression was the result of the subject motor vehicle accident.
On about 8 March 2010, the plaintiff saw Dr MA Chaudhary, a consultant psychiatrist, at the referral of his treating general practitioner. The defendant tendered an unsigned letter from Dr Chaudhary dated 8 March 2010: Exhibit "20", Tab 2. Dr Chaudhary recorded a history of the plaintiff having family issues, including the fact that the plaintiff's wife had left him some 4 weeks previously. This was in apparent connection with a reported change in the plaintiff's behaviour, in which he had been described as being angry, abusive and aggressive, with violent outbursts, and being unable to handle the pressure he was under "at the time". The particular time to which that comment was directed was not specified.
Dr Chaudhary's letter to the general practitioner made no mention of the occurrence of the motor vehicle accident, or any relationship between that event and the plaintiff's reported changed behaviours, which were the subject of Dr Chaudhary's letter. The defendant placed great reliance on this letter in order to base the contention that the plaintiff's complaints of psychological problems were not due to the motor vehicle accident, but were instead due to disharmony in the plaintiff's marriage.
The defendant's submission to that effect was unpersuasive because in my view it could not be reasonably said that Dr Chaudhary's relatively short letter to the general practitioner represented a full or detailed analysis of the underlying causes of the plaintiff's presenting psychological problems at that time.
On 12 April 2010, the plaintiff underwent a MAS assessment by Dr Graham Pittar, a consultant ophthalmologist. That assessment concluded that the plaintiff's vision had not been adversely affected by the subject accident.
On 3 May 2010 the plaintiff underwent a MAS assessment by Dr Mark Burns, whose assessment was that the plaintiff's soft tissue neck problems and rib fractures were due to the subject accident. Dr Burns used the contemporaneous medical documents to conclude that the plaintiff's complaints of shoulder, thoracic and lumbar spine problems were not due to the accident. On the same basis, he concluded that the plaintiff's lower extremity problems were not due to the subject accident. In this latter regard, it is not clear as to whether Dr Burns had been provided with documentation of the plaintiff having suffered an injury to his left shin. Dr Burns made reference to the plaintiff exhibiting abnormal illness behaviour, which was not defined.
On 2 June 2010, at the request of his solicitor, the plaintiff underwent a psychological assessment by Mr Gerry Wenzel. He was of the opinion that the plaintiff's psychological presentation of agitation, distress, and his diagnosis variously described as chronic or severe post-traumatic stress disorder characterised by symptoms of flashbacks, avoidance and arousal, were attributable to the subject motor vehicle accident.
On 28 June 2010, at the request of the defendant's CTP insurer, Allianz Australia Insurance Limited, the plaintiff was examined by Dr Thomas Newlyn, a consultant psychiatrist. Dr Newlyn stated:
"HISTORY OF CURRENT PSYCHIATRIC INJURY
Date of Injury: Tuesday, 13 November 2007
Systems involved: Psychiatric.
Signal event: I was travelling on Elizabeth Drive in the middle lane. On the opposite side of the road there was a truck pulling a trailer. The trailer separated from the truck, crossed the road and the connection to the truck went into the front of my grill. I had the steering wheel in my hand and my head hit the steering wheel very hard. I couldn't breath, I was in total shock and thought I was going to do die. I called my wife and the ambulance came. My wife took me to Fairfield Hospital. I went home and later I was diagnosed with 3 cracked ribs.
Present problems: I always had the mental scarring I had from the accident. I was edgy nervous, irritable and couldn't sleep. I had flashbacks to the accident and I thought I was dead. There was shock and horror. I discussed it with my wife and then she left me 5 months ago. After the X-rays the doctors didn't want to know.
Problem evolution: The emotional problem has stayed with me all the time and didn't go away. I have nothing. That is why I am taking legal action. No one cares about me mate."
In his oral evidence, Dr Newlyn explained that the above text that appeared under the respective headings of signal event, present problems and problem evolution, were quotes from the account given to him by the plaintiff, and which he had typed on his computer during the consultation.
On the cited history provided by the plaintiff, Dr Newlyn considered the plaintiff had a psychogenic pain disorder and did not meet the criteria for diagnosis of a depressive disorder. Dr Newlyn concluded that the plaintiff's symptoms could not be attributed to the motor vehicle accident, but were instead related to the plaintiff's separation from his wife. Dr Newlyn also suggested the plaintiff had an underlying personality disorder which was influential on his presentation. At that stage, Dr Newlyn did not identify or label the suggested personality disorder, and he described the plaintiff as having developed an adjustment disorder that he considered related to the plaintiff's separation from his wife.
On 30 July 2010, the plaintiff suffered his fall at work, in which he injured his right knee and left ribs.
On 3 August 2010, the plaintiff consulted his general practitioner, Dr Marinucci, for problems relating to his right knee injury at work on 30 July 2010. Dr Marinucci's handwritten notes for consultation between that date and 6 November 2013 were tendered by the defendant: Exhibit "9".
The notes relate principally to the plaintiff's knee problems, eg:
2/9/10
Depressed crying
financial hardship
20/1/11
Depressed & anxious about financial problem.
- prospect of losing home
- demands by estranged wife
- physical injuries
Wife has AVO
Episodes of crying
12/2/11
Panic attacks
24/11/11
Boss has told him not to attend work
23/3/12
Alopecia aventa probably due to stress
5/2/13
Not sleeping well
anxious depressed
Tremor ...
19/2/13
... very anxious related to ongoing compensation case
12/6/13
Depression, anxiety
Discussion on how to cope with current problem(s)
10/9/13
Problem of excess weight
Under great stress
6/11/13
... Agitated; Stressed at times
The defendant's construction of those entries in Dr Marinucci's notes was that the psychological components were not accident-related, a matter that requires determination, especially in the light of the oral evidence given by Dr Diamond. This suggests that limited weight be placed on short-form clinical notes, to the effect that it was unclear from the notes as to how much consideration the general practitioner had given to the full effects of the plaintiff's post-traumatic stress disorder: T414.40.
On 13 August 2010, at the request of his solicitor, the plaintiff was examined by Dr Michael Diamond, a consultant psychiatrist. In his detailed report dated 24 August 2010, Dr Diamond observed that the result of his mental state examination of the plaintiff revealed that the plaintiff was agitated with an anxious affect, depressed mood and that his presentation was consistent with a biological depressive illness. Dr Diamond noted that the content of the plaintiff's presentation was focused on his distress and in particular on his experience of pain. Dr Diamond made a primary diagnosis of Chronic Post-Traumatic Stress disorder. He considered that the plaintiff's prospects for recovery were poor at that stage, and he considered the plaintiff's prognosis to be guarded. Dr Diamond later saw the plaintiff again on 20 September 2013.
When Dr Diamond gave his oral evidence, in cross-examination, he rejected the proposition that the plaintiff's marital problems were the cause of those psychological conditions. He explained that the marital problems were related to the effects of the motor vehicle accident and should not be viewed in isolation from that event: T412.1. That analysis will be revisited in greater detail later in these reasons.
On 23 August 2010, at the request of his general practitioner, the plaintiff consulted Dr Peter Walker, a consultant orthopaedic surgeon, concerning his work-related left knee injury, which was described as a bi-partite patella with bruising following a fall. Until that stage, no patellar fracture had been detected.
On 24 August 2010, at the request of Dr Walker the plaintiff underwent a whole body bone scan. The report of that imaging test revealed an undisplaced vertical fracture through the lateral portion of the right patella with recent factures of the 8th and 3rd ribs on the left side. Degenerative changes in the acromio-clavicular joints, the left wrist, the left foot and a left finger, were noted, as were features of mild bilateral rotator cuff tendinopathy.
On 7 October 2010, Dr Walker reviewed the plaintiff and noted that the plaintiff was barely able to walk. He recommended an arthroscopic removal of the offending bone fragment followed by significant rehabilitation. It appears the plaintiff had later undergone that procedure.
On 14 October 2010, the plaintiff underwent a MAS assessment conducted by Professor Michael Fearnside, a consultant neurosurgeon, in connection with the head injury he suffered in the subject accident. In the terms of the MAA Impairment Guides, which he cited, Professor Fearnside considered that the plaintiff did not meet the criteria for assessment of mental status or emotional and behavioural impairment. The effect of that assessment seems to have been overtaken by subsequent medical assessments.
On 6 December 2010, the plaintiff underwent a psychiatric assessment by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh concluded the plaintiff's presentation was consistent with a diagnosis of chronic post-traumatic stress disorder caused by the motor vehicle accident.
On 9 January 2011, Ms Serena Cauchi, a clinical psychologist, wrote to the plaintiff's general practitioner, expressing her concern about the plaintiff's rehabilitation and his emotional state. Ms Cauchi noted the plaintiff was exhibiting levels of depression, anxiety and stress, and was being subject to financial pressures from an insurer and from his estranged wife. Ms Cauchi suggested the plaintiff undergo a psychiatric assessment.
On 6 February 2011, Dr Marinucci wrote a letter to an entity identified as "International SOS": Exhibit "12". The content was not explained in the evidence. The letter addressed a series of questions which were not in evidence. Dr Marinucci referred to the plaintiff's right knee problems, and difficulty with work as a shop assistant. He concluded his letter as follows:
"15. He is under treatment by psychologist for PTSD which is quite appropriate at present.
16. On a long term basis he would be considered TPD due to physical only. At present PTSD is considered as contributing to his inability to work as his current injury has worsened his underlying PTSD for which he had previously been able to work under."
On 1 September 2011, the plaintiff was psychiatrically examined by MAS Assessor Lewin, and MAS Assessor Professor Dinnerstein, for the purposes of a MAS Review. That review panel had before it the competing medico-legal psychiatric opinions of Dr Diamond and Dr Newlyn. The MAS review panel noted that whereas Dr Newlyn was of the opinion that the plaintiff had an Adjustment Disorder, a pain condition and a personality disturbance, Dr Diamond was of the opinion that the plaintiff had a Chronic Post-Traumatic Stress Disorder and Major Depression. The review panel also had before it the report of Ms Harrysunker which described the plaintiff as having evidence of anxiety symptoms, depressive symptoms and post-traumatic symptoms of anxiety.
After further examining the plaintiff and analysing relevant aspects of his history, including the presenting psychological symptoms, the MAS review panel observed that the plaintiff's persisting post-traumatic symptoms of anxiety referred specifically to the motor vehicle accident. Although the MAS review panel noted that some of the details of the plaintiff's history may not have been entirely reliable as a result of the plaintiff's distressed and agitated state, the MAS review panel considered there was no evidence of deliberate dissimulation on the part of the plaintiff.
Significantly, in its deliberations, the MAS review panel concluded that the subject motor vehicle accident was a cause of the plaintiff's Post-Traumatic Stress Disorder and Major Depression, and that as a result, the plaintiff has satisfied the assessment impairment threshold of a total whole person impairment of greater than 10 per cent.
On 31 October 2011, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Newlyn. At that time, the plaintiff reiterated his previously stated emotional problems that he claimed had emanated from the subject motor vehicle accident. He also recounted the fact that his wife had left him in association with what he described as a worsening of his problems since the subject motor vehicle accident. Dr Newlyn noted that the plaintiff reported considerable ongoing anger, and upset at having to be reviewed by Dr Newlyn.
Dr Newlyn concluded that the plaintiff met "the diagnostic criteria for the principal diagnosis of Pain Disorder Associated with Psychological Factors with most symptoms related to the work accident of 30 July 2010". He considered that his 28 June 2010 diagnosis of adjustment disorder had resolved by the time of the work accident in July 2010. The particular reasons for Dr Newlyn arriving at that view were not clear from his report.
Dr Newlyn went on to say that he considered the plaintiff "exhibits personality disorder behaviour that results in exaggeration of disability when in an assessment": Report, p 16.
The interaction in the consultation with Dr Newlyn on 31 October 2011 was, in Dr Newlyn's view, characterised by non-compliance on the plaintiff's part. Dr Newlyn noted that at the interview, the plaintiff had apparently refused to provide information and asked to leave the assessment interview as soon as possible: Report, p 9.
The particular topics or questions that were the subject of such refusals, were not identified in the evidence. In these events, I consider that Dr Newlyn's recorded history in this report must necessarily be regarded as being incomplete because, for whatever reason, the plaintiff apparently refused to give information to Dr Newlyn when he was requested to do so.
Apparently, there was no follow-up action in that regard, such as for a formal request or application for the plaintiff to comply with the requirements of a medical examination, with or without sanctions.
In those events, Dr Newlyn formed the view that the plaintiff's current complaints relate to the workplace injury of July 2010, and not to the motor vehicle accident of November 2007, which in his opinion had resolved by the time of the work accident in 2010: Report, p 11. Dr Newlyn's detailed reasons for arriving at that view were not apparent in his report, a matter that is relevant to determining the weight to be placed on that aspect of Dr Newlyn's opinion. At the time of writing his report dated 31 October 2011, Dr Newlyn considered the plaintiff's pain disorder to be chronic in nature.
Dr Newlyn stated that he considered the plaintiff's history unreliable: Report, p 11. His reasons for that view must be examined.
As a result of him forming that view, he then went on to review a number of documents, and he utilised his previous opinion dated 28 June 2010 as a basis for providing his second report: Report, p 12.
Dr Newlyn's reasoning and methodology of assessment of the plaintiff will be the subject of a separate analysis in conjunction with a comparative analysis of Dr Diamond's opinions.
On 14 November 2011, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Brian Noll, a consultant orthopaedic surgeon. Dr Noll noted the plaintiff's current physical complaints at that time to be neck pain, left shoulder pain, left sided chest pain and low back pain. Dr Noll found no objective clinical abnormality in relation to the affected regions described. He considered what he described as a considerable functional component to the plaintiff's presentation, with "probable amplification of his complaints". Dr Noll also made reference to non-organic findings and non-dermatomal distribution of diminished sensation in the plaintiff's left lower extremity. There was no discussion provided by Dr Noll of the significance of the plaintiff's psychological complaints to those aspects of his own opinion.
In his conclusions, Dr Noll seems to have placed importance on the opinion of Dr Burns to the effect that the plaintiff exhibited a significant amount of abnormal illness behaviour throughout the physical examination carried out by that doctor.
In stating his own conclusions, Dr Noll referred to the absence of contemporaneous medical evidence to indicate that the plaintiff had sustained intrinsic injuries to his shoulders and his thoracic and lumbar spines. The assumption that is implicit in that method of injury evaluation is that those complaints under consideration would necessarily have been evaluated and documented at an early stage, and that therefore, the contemporaneous records would be complete and entirely reliable in that regard.
On 16 November 2011, at the request of his solicitor, the plaintiff was re-examined by Dr Conrad. In his report of that consultation Dr Conrad made reference to the plaintiff's difficulty in concentrating, and he questioned whether the plaintiff was suffering from cognitive problems as a result of a head injury. He suggested the plaintiff undergo psychometric testing for possible mental state impairment.
From the perspective of his own specialty, Dr Conrad reiterated that he considered the plaintiff had residual chest pain at the sites of the healed rib fractures, as well as chronic neck and back problems, and left shoulder problems, for which further radiological imaging was recommended for diagnostic purposes. It is unclear as to whether those recommended investigations have been followed through and undertaken. The defendant challenged the historical basis for those findings.
On 15 December 2011, at the request of his solicitor, the plaintiff was assessed for medico-legal purposes by Dr Philippa Harvey-Sutton, a consultant occupational medicine physician. She considered the plaintiff's cervical spine injuries, his rib fractures, his post-traumatic stress disorder and his major depression to be referrable to the subject accident. Whilst she considered the prognosis for the physical injuries to be good, she deferred to psychiatric opinion on the prognosis of the plaintiff's psychiatric conditions.
On 5 April 2012, at the request of the solicitor for the defendant, Dr Newlyn prepared a supplementary report commenting upon some surveillance footage of the plaintiff's activities, and upon an accompanying surveillance report.
Based upon that material, Dr Newlyn modified his previously expressed opinion and stated that his clinical diagnosis of Pain Disorder would no longer apply however he felt the plaintiff would continue to meet the criteria for the diagnosis of a personality disorder. Those altered views of Dr Newlyn were not based on any clinical assessment of the plaintiff. The basis of those altered views and the differences in the views within the medical and allied evidence will be explored in the course of reconciliation of those views.
On 12 February 2013, the plaintiff underwent a further MAS assessment by Dr Alan Jager, a consultant psychiatrist. After reviewing a considerable amount of medical information and carrying out an assessment of the plaintiff, Dr Jager concluded that the plaintiff was suffering from post-traumatic stress disorder caused by the subject accident. Dr Jager considered that the plaintiff was affected by bi-polar disorder. He concluded that absent any evidence to the contrary, a postulated bi-polar condition had been aggravated by stress associated with the subject accident. There was no other evidence in support of that latter view.
Notwithstanding his view that the plaintiff had a pre-accident bi-polar condition, Dr Jager's assessment was that according to the MAS assessment protocols, the plaintiff did not have any assessable pre-existing psychological impairment, presumably including from the postulated bi-polar condition.
On 12 March 2013, Dr Marinucci referred the plaintiff for psychological treatment to Ms Esther Tang. The basis of the referral was adjustment disorder with anxiety and depression. The referral was in a short handwritten form, and also stated "His problem is related to loss of job recent divorce". That notation has to be read with the caution that was identified by Dr Diamond in his oral evidence: T414.40.
On 28 August 2013 at the request of the defendant in these proceedings, Dr Jager's assessment was the subject of a MAS medical assessment review by a panel of psychiatrists, namely Dr Samuels, Dr Mason and Dr Alper. That MAS review, which had been opposed by the plaintiff, concluded that the plaintiff had an adjustment disorder with mixed anxiety and depressed mood. That assessment resulted in a finding that the plaintiff had a total whole person impairment of greater than 10 per cent, thus again confirming his entitlement to damages for non-economic loss in these proceedings.
On 18 June 2013, at the request of his solicitor, the plaintiff underwent a further psychological assessment by Mr Wenzel. In addition to taking a history of the plaintiff's work accident in 2010, Mr Wenzel noted that at the time of his re-assessment, some 5 years and 7 months since the motor vehicle accident, the plaintiff was still waking at night, trembling and sweating in response to a nightmare of an airborne trailer coming towards him.
Mr Wenzel noted the plaintiff presented in a severely agitated and distressed manner. He also noted the plaintiff remained prone to severe depression and disturbed sleep due to him experiencing regular nightmares and intrusive thoughts, as well as images relating to the motor vehicle accident. He considered that the plaintiff's presenting concentration and other cognitive impairments were secondary to the presenting psychological problems.
On 20 September 2013, at the request of his solicitor, the plaintiff was re-examined by Dr Diamond. After reviewing the plaintiff's history since he was last seen on 13 August 2010, Dr Diamond saw no evidence of a pre-existing psychiatric illness and stated that he could see no basis for a pre-accident diagnosis of a personality disorder: T380.34 - T380.47. In that regard, Dr Diamond disagreed with the opinion of Dr Newlyn. There was no sign of such a disorder in the plaintiff's pre-accident employment history: T399.40.
Dr Diamond gave consideration to the assessment by Dr Jager to the effect that the plaintiff had a pre-existing bi-polar disorder and stated that the grounds for such a diagnosis were difficult to understand.
In light of Dr Diamond's analysis of the suggested bi-polar disorder, taken together with the fact that Dr Jager's report provided no reasons for that view, and that his opinion in that regard was prepared without the requirement of having to comply with the Expert Witness Code. In those circumstances, the cited component of Dr Jager's opinion to the effect that the plaintiff was said to have a pre-existing bi-polar disorder should carry very little weight.
Dr Diamond considered that the effects of the plaintiff's left knee injury occurring in 2010 was no longer a contributing factor to his mental state following appropriate treatment. In his oral evidence Dr Diamond said that he considered the knee injury had run its course. Dr Diamond reiterated his opinion that the plaintiff's overriding and consistent psychiatric injury was the Chronic Post-Traumatic Stress Disorder that arose directly as a result of the subject motor vehicle accident. He considered that the prolongation of the proceedings had been unhelpful to the plaintiff's condition.
On 23 October 2013, at the request of the solicitor for the defendant, the plaintiff was reassessed by Dr Newlyn, who said that he had used his reports dated 28 June 2010, 31 October 2011 and 5 April 2012 as the basis for the templates for this further report. For the purpose of preparing his report, Dr Newlyn stated that he had also reviewed the MAS panel certificates of Assessor Jager dated 19 February 2013, and the MAS review panel certificate of Dr Samuels, Dr Mason and Dr Alper, which was dated 28 August 2013.
Dr Newlyn obtained a history from the plaintiff to the effect that his claimed accident related problems were getting worse, together with the claims that he was suffering and that he was distraught. He noted the plaintiff was on a trial of psychopharmacology. Dr Newlyn stated that the plaintiff had told him that he had plenty of anger, that he was depressed and sad because he had happened to have been on the road at the time of the accident. Dr Newlyn recorded that the plaintiff had ruminated on why he had been the one injured, and that he had flashbacks to memories of the accident. He also recorded the history that the plaintiff dreamt about the accident, and that being questioned about it made him sweat.
Dr Newlyn stated that in the latter consultation, the plaintiff had become unco-operative, and refused to answer specific questions. In light of the plaintiff's anger and lack of co-operation, Dr Newlyn agreed in his oral evidence that the consultation in question was somewhat dysfunctional. He nevertheless opined that based upon his previous assessments, the plaintiff "... has a histrionic presentation and that the complaints are likely to be greater than the disabilities."
In preparing the 23 October 2013 report, Dr Newlyn was asked to express his opinion on the relationship between the plaintiff's complaints and the accident. He responded in the following terms:
"My opinion is unchanged from 2011. My colleagues who assess[ed] Mr Turano in August 2013 diagnosed an Adjustment Disorder with Anxiety and Depressed Mood and histrionic personality traits. My diagnosis remains that of a Pain Disorder and a Histrionic Personality Disorder that was not caused by the motor accident".
[Emphasis added]
It is unclear as to which colleagues Dr Newlyn was referring to because a review of the tendered materials did not reveal any diagnosis by his colleagues of the plaintiff having "Adjustment Disorder with Anxiety and Depressed Mood and histrionic personality traits" in the terms as stated by Dr Newlyn. [Emphasis added]
It seems that the only available conclusion on the evidence is that the colleagues to whom Dr Newlyn was referring in identifying the above diagnosis were the members of the MAS review panel, namely, Dr Samuels, Dr Mason and Dr Alper: Exhibit "B", Tab 44.
Given that position, when the resultant MAS review panel report and certificate dated 10 September 2013 is read, it becomes plain that Dr Newlyn has erroneously attributed to the MAS review panel the diagnosis of the plaintiff having "... histrionic personality traits" when in fact he is quoting his own opinion and he has conflated the MAS review panel opinion with his own opinion in that regard, a matter that I consider to be of some significance on the question of the reliability of his evidence.
The MAS review panel report did refer to Dr Newlyn's opinion dated 28 June 2010 in which he stated his view the plaintiff had a histrionic personality: Exhibit "B", Tab 44, p 594, MAS review panel report 10 September 2013, p 8.
However, at no stage did the MAS review panel adopt Dr Newlyn's formulation as quoted above. In that regard, Dr Newlyn's report gives a misleading impression. That is a matter that raised a doubt as to the reliability of Dr Newlyn's analysis.
Resolution of conflicting psychiatric opinions
Dr Diamond and Dr Newlyn each gave extensive oral evidence in which they explained the process by which they had arrived at the opinions they expressed in their respective reports. Those differing opinions will be the subject of the evaluation that follows. Unfortunately, the experts did not give their evidence concurrently.
Due to the challenging manner of the plaintiff's presentation at the interviews conducted by those experts, they have approached their analyses in different ways.
To differing degrees, Dr Newlyn encountered hostility and agitation from the plaintiff at his successive interviews. In my view, this limited his opportunity to elicit and explore details and relevant aspects of the plaintiff's history. I gained the impression that Dr Newlyn found that he was unable to effectively engage with the plaintiff, and this severely limited the nature and extent of his assessment.
Dr Newlyn therefore felt it was a more reliable process for him to look to the documentary materials provided to him in order to undertake his analysis of the plaintiff's psychological issues. That process has in turn led to a limited and simplistic analysis of some key historical events affecting the plaintiff.
This takes on some significance when regard is had to Dr Newlyn's explanation as to how he prepared his reports. In that regard, he explained that in his interviews with the plaintiff he had worked on a pre-prepared template on his computer, which he altered by typing into the template during the course of his interview with the plaintiff. Without intending any criticism of Dr Newlyn's preferred approach to report writing in that regard, that process seemed to have had its inherent limitations, including affecting the degree to which he had sustained engagement with the plaintiff in discussion on key matters or events.
In contrast, although Dr Diamond also encountered difficulties in his interview with the plaintiff, he persevered in exploring a detailed history with the plaintiff and as a result obtained a much more detailed history, as is evident from his reports and from his handwritten notes of his interviews with the plaintiff: Exhibits "26" and "13". This was in contrast to Dr Newlyn's more formulaic templates: Exhibits "P", "Q" and "R".
Accordingly, I consider the most appropriate and fair method of compensating the plaintiff for past economic loss is to award a discounted buffer amount of $25,000.
I therefore award the plaintiff damages for past economic loss in the amount of $25,000.
Future economic loss
The plaintiff claims a future economic loss in the sum of $292,187.50. That sum was calculated on the basis of a projection of a $550 per week net over 18 years to age 67 years (x 625) discounted by 15 per cent for potential adverse vicissitudes.
In contrast, the defendant submitted that no amount should be awarded to the plaintiff on account of future economic loss.
The basis of that submission was the reiteration of the argument that the plaintiff has suffered no impairment of his earning capacity whatsoever by reason of any accident-related condition, either physical or psychological: Defendant's outline of submissions, paragraphs [181] - [198].
For the reasons outlined in my findings on the plaintiff's accident related injuries, disabilities and past loss of earnings at paragraphs [259] - [284], [285] - [296], and [306] - [323] above, and for the further reasons that follow I do not accept those submissions.
In making the no loss of earning capacity submission, the defendant's written submissions make not a single reference to the medical evidence. In my view, that approach is an unrealistic one, especially where at the very least, the plaintiff suffered an aggravation of an underlying vulnerability to react poorly to his injury. That is a matter for which the defendant must take responsibility because he takes the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406. In that regard, Dr Newlyn acknowledged that the plaintiff had developed a psychological response to pain that interfered with his functioning: T513.19.
Dr Diamond's views on the plaintiff's work capacity were not materially altered after he viewed the DVD footage relied upon by the defendant: T383.25. The fact that the plaintiff has been able to attend to some work since the incident is consistent with what Dr Diamond described as the need to do something useful and not give up: T387.24. This was not inconsistent with the diagnosis he had made: T387.31. Dr Diamond distinguished work from just turning up to a sheltered environment at a workplace (T420.20; T422.44; T423.25) which is essentially what the patisserie business provides for him as described by Mrs Marrapodi.
The effect of the evidence of Mrs Marrapodi and the plaintiff's post-injury employer, Mr Giggliotti does not auger well for the plaintiff's economic future.
The underlying submission of the defendant that the plaintiff does not suffer from any condition which would prevent him from carrying out any activity in connection with the running of the franchise business in which he has an interest makes no allowance for the evidence of Dr Diamond and Mrs Marrapodi, which I have accepted, in addition to my acceptance of the plaintiff's evidence that he is unable to work.
The defendant's submission also seems to ignore the effect of Dr Newlyn's acknowledgment as cited above: T513.19.
The defendant has made criticisms of the proposition that there should be any allowance for a loss of earning capacity. I consider those submissions to be unrealistic on the evidence that I have reviewed and accepted.
In support of the plaintiff's claim for diminution in his earning capacity, Dr Diamond was of the view that the plaintiff is no longer fit to perform managerial responsibilities, and this has been the case since the 13 November 2007 motor vehicle accident: Report 27 September 2013, p 12 para 7(i).
In addition Dr Diamond has stated that the plaintiff's obligation to sustain himself in the workplace is diminished, as is his overall working life due to his chronic and disabling psychiatric illness from which he will not recover. He believes a substantial residual earning capacity is unrealistic in the plaintiff's situation: Report 27 September 2013, p 12 para 7(ii).
Dr Diamond added that the plaintiff struggles to maintain his psychological equilibrium which impacts on his work. He cannot deal with conflict effectively, he is unable to work with ordinary stressors, and due to his long term chronic illness, is impaired in his working capacity in terms of hours and roles: Report 27 September 2013, p 12 and p 13, paragraphs 7(iii), (iv) and (v).
I accept Dr Diamond's opinions in that regard. Those views justify a finding that the plaintiff's earning capacity has been substantially impaired.
The plaintiff clearly suffers from an ongoing diminution in his previously unfettered ability to exercise his earning capacity and is thereby liable to suffer a financial loss that is likely to arise in the very near future as Mrs Marrapodi does not see the franchise continuing on the present basis which places great strain on the current business arrangements: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
I consider that when read together, the evidence of the plaintiff, Dr Diamond and Mrs Marrapodi, which I accept, indicates that on the balance of probabilities, the plaintiff will be likely to suffer a financial loss in the near future because the business is unlikely to continue as it has until now with the plaintiff's unsatisfactory involvement as described by Mrs Marrapodi: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
In that regard, as already explained at paragraphs [245] to [258] above, I do not consider the short DVD sequences relied upon by the defendant, as being reliable evidence for a contrary conclusion.
In those circumstances, the approach of projecting a sum of $550 per week net, which the defendant criticises as being "plucked out of the air" seeks to inject an element of precision into the exercise of assessment where many imponderables arise, thereby contraindicating the approach of projecting a defined weekly sum.
Instead, I consider this to be an appropriate case for awarding the plaintiff a buffer sum for future loss of earning capacity over the remaining 18 years of his working life to age 67 years: Penrith City Council v Parks [2004] NSWCA 201, at [58]; State of NSW v Moss [2000] NSWCA 133, at [71], (2000) 54 NSWLR 536, at [7]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7] - [9].
That buffer must make allowances for both negative and positive factors that must be included in the mix of factors that go into making an assessment to compensate the plaintiff for his loss of capacity to work. As well as incorporating a general discount on account of potential adverse vicissitudes.
On the positive side, it is possible that after the litigation the plaintiff may to some extent improve and extend his ability to work in a calmer frame of mind once the strains of the litigation process recede. It is also possible that in the future, either in the present franchise, or in some other sympathetic situation, the plaintiff may find intermittent work from time to time, which may reduce his monetary loss of income to a degree.
On the other hand, there is little scope for his PTSD to recede or resolve. It also seems unlikely that the present franchise will continue to provide the plaintiff with $1100 per week net where he clearly does not earn it, and where the business cannot afford to continue to maintain payments of that order to him where he does not contribute his labour to the level that justifies such drawings.
Those circumstances create difficulties for assessment of losses over the plaintiff's future working life where, but for his injury, he would have had no impediments to continuing to work until his proposed retirement age without incurring a diminished earning capacity.
Difficulty in making an assessment is not an obstacle to assessing a buffer to compensate for a difficult to define loss: State of NSW v Moss, at [82].
Taking those matters into account, I consider that the appropriate buffer that is both fair to the plaintiff, and not unfair to the defendant, is the net sum of $250,000. In consider that sum makes due allowance for a residual earning capacity although the defendant called no evidence on that issue:
I therefore award the plaintiff damages for future economic loss in the lump sum buffer amount of $250,000.
Past loss of superannuation
On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $250,000. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $2750.
Future loss of superannuation
There is no dispute that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 13.59 per cent. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $33,975.
Future domestic assistance
Although the plaintiff has at various times in the past received gratuitously provided domestic assistance from his mother, as well as from Mrs Marrapodi and her daughter, he makes no claim for damages for the monetary value of that past assistance.
That said, the plaintiff makes a claim for future domestic assistance of 6 hours per week costed at a commercial rate of $35 per hour over his remaining life span and discounted by 15 per cent for vicissitudes, in the amount of $158,722.20.
In response to that claim the defendant argued that there was no cogent evidence of any physical disability that gave rise to a need for such care as a result of the subject accident, and there were no psychological grounds upon which to base an award for such care. In developing those submissions the defendant pointed to the terms of the medical evidence to suggest there was an insufficient basis in that evidence for any such award.
In my view, those submissions made by the defendant should not be accepted. The plaintiff is psychologically disturbed by the events of the accident. Dr Diamond explained how he could have lost interest in self-care and lapse into apathy, consistent with the effects of PTSD despite attending to other tasks without apparent difficulty. Dr Diamond explained in terms of "not being bothered": T392.26 - T392.36. That evidence was not contradicted by other expert evidence. It did not seem inherently improbable. I therefore accept Dr Diamond's opinion in that regard.
The defendant also submitted that the premises the plaintiff presently rents are of a size that is in excess of his reasonable needs, and that the amount of care claimed in respect of those premises was excessive.
In my view, that latter submission has a degree of persuasive force, and I consider that any award to the plaintiff should be for a lesser amount which properly reflects that submission.
The defendant's final submissions on this head of damage were to the effect that it was unlikely that the plaintiff would expend any funds on paying for such assistance, and that the claim lacked credibility in that it was expanded upon through evidence given by leave, and after the plaintiff had conferred with his legal advisors.
For the reasons that follow, I do not consider those submissions to be persuasive.
The fact that the claim was expanded upon after conferring with legal advisors is of little significance in this case where the evidence has established to my satisfaction that the plaintiff has significant problems with his memory and where he found the process of questioning somewhat taxing.
Even the expert psychiatrists on both sides each remarked upon the difficulties they experienced in questioning the plaintiff and ensuring that he remained on topic. That phenomenon was also replicated in the oral evidence the plaintiff gave in the proceedings.
In the circumstances, in my view, the leave granted to call further evidence was indicted by the circumstances, and the defendant's rights were not unduly prejudiced because there was an unfettered opportunity for counsel for the defendant to further cross-examine the plaintiff on the matters that were introduced into evidence by leave.
With regard to the submission that the plaintiff is not likely to expend the moneys awarded to him in respect of this head of damage by paying for care, that submission must be seen as being misplaced.
The proper analysis is to ask the questions as to whether the accident has caused the plaintiff to incur an injury-based need for domestic assistance, and if so, who is likely to fulfil that need, and at what cost. What the plaintiff later does with any funds so awarded, is not a matter that the court can properly control, limit, or anticipate in the way the defendant seeks.
The assistance currently provided to the plaintiff involves Mrs Marrapodi undertaking washing of the plaintiff's clothes, cleaning his bathroom, as well as vacuuming and dusting his home. From the description of Mrs Marrapodi, the average time taken up with those activities amounts to some 15 hours per week: T456.20. In addition Mrs Marrapodi arranges for someone to mow the plaintiff's lawns.
The defendant submitted that the 15 hours of care and assistance provided as described in the evidence of Mrs Marrapodi was for an excessive number of hours, and that such evidence should be rejected. However, the defendant has overlooked the fact that the plaintiff's claim is not for those hours, but for only 6 hours per week.
I accept that Mrs Marrapodi and her daughter provide the plaintiff with care and assistance in the domestic setting for at least the 6 hours per week claimed. I do not consider the hours expended by Mrs Marrapodi to have been necessarily excessive thereby requiring her evidence be rejected. Instead, on the evidence it would be reasonable to infer that Mrs Marrapodi was concerned with matters of cleanliness, tidiness and hygiene to a degree that some might find to be obsessive, thus attracting the defendant's criticism of excessive care.
Recognising that factor, which is not a credit issue in respect of the evidence of Mrs Marrapodi, the plaintiff has reduced the number of hours claimed to 6 hours per week. There is no difficulty in that regard, In my view, the claimed credit issue does not arise.
The defendant points to the surveillance evidence which shows the plaintiff carrying out minor cleaning and wiping tasks at the patisserie, and in the light of that evidence, reasonably raises the question as to why the plaintiff cannot carry out similar domestic cleaning and organisational tasks himself without external assistance.
In my view the answer to that question is to be found in the evidence of the plaintiff, Mrs Marrapodi, and Dr Diamond.
The plaintiff is simply not bothered to attend to household tasks. He lacks the energy and motivation due to his PTSD. He is unable to source gratuitously provided domestic assistance from elsewhere, and he proposes to expend funds awarded to him for that purpose: T431.23 - T432.2: Miller v Galdaresi [2009] NSWCA 353, at [18] and following. It is relevant to note that Mrs Marrapodi is not part of the plaintiff's family and he cannot reasonably expect her assistance to continue.
Mrs Marrapodi has said that she and her daughter are unable to continue to assist the plaintiff in the manner they have done in the past and he has been told this: T457.40 - T458.22. That evidence is believable in view of the time that needs to be committed to running the business and her own home.
Although the defendant's submissions state at paragraph [207], that Dr Diamond did not express any opinion on the question, those submissions overlook the evidence Dr Diamond gave at T392.
I accept Dr Diamond's evidence that, consistent with the diagnosis of PTSD, it is explicable the plaintiff is able to carry out minor cleaning tasks at the patisserie, as shown in Exhibit "7", but does not attend to domestic tasks: T392.35. Dr Diamond has adequately and persuasively explained that apparent paradox.
That said, whilst the claim for 6 hours per week of domestic assistance is a discounted claim, for the reasons that follow, I nevertheless consider that a further discount is required in approaching the assessment of this head of damage.
First, the plaintiff is renting a home that is much larger than would be expected to be required to meet his reasonable domestic needs. Whilst those larger premises may be in anticipation of his children one day joining him to live there, I do not consider that greater than necessary space should form the basis of compensation for domestic assistance for his accident-related domestic needs.
Secondly, given that the domestic assistance described in the evidence is going to be performed on a commercial basis because Mrs Marrapodi is not going to be providing that assistance in the future once these proceedings have been concluded, it must be assumed that an element of commercial efficiency will be incorporated into the time taken to carry out the tasks, and therefore the cost of the services being claimed will involve a lesser amount.
Thirdly, I do not consider that the evidence requires the conclusion that the level of assistance claimed will in fact be required over the entirety of the plaintiff's remaining life span. I propose to make a greater allowance for vicissitudes in order to incorporate the prospect of a diminishing level of need for domestic assistance over time.
For those reasons, I propose to allow a reduced number of hours for future domestic assistance on account of the efficiency factor I have already referred to, namely 4 hours per week, and I propose to apply a discount of 25 per cent for vicissitudes to allow for the prospect of a lessening extent of need over time.
The projection of 4 hours per week of domestic assistance at $35 per hour, or $140 per week, at 5 per cent over the plaintiff's remaining life span (x 884.8) and discounted by 25 per cent for vicissitudes, yields the sum of $92,904.
I therefore award the plaintiff damages for future domestic assistance costed on a commercial basis in the amount of $92,904.
Future out-of-pocket expenses
On behalf of the plaintiff, a claim is made for future out-of-pocket expenses in the sum of $49,457.30. That sum comprised allowances for multiple annual visits to a general practitioner, multiple annual visits to a psychologist, a psychiatrist, physiotherapy and allied treatment, pharmaceutical and travelling costs. The claim is for $55.62 projected at 5 per cent over the plaintiff's life span to yield $49,457.30.
In contrast, on behalf of the defendant, it was submitted that there was no evidentiary foundation for an allowance for any future treatment expenses at all.
Whilst I consider that the total projected amount claimed on behalf of the plaintiff over his remaining life span has not been justified, I do not accept the defendant's submission that the claim for treatment expenses is entirely unjustified. I have reached that conclusion for the reasons that follow.
The plaintiff still suffers from physical symptoms relating to his neck, as well as, occasionally, his back, but overshadowing these matters are the symptoms relating to the effects of the plaintiff's PTSD condition, which has been acknowledged as being difficult to treat, but which nevertheless requires and deserves attempts at treatment.
Future treatment should at the very least, involve periodic supervisory and referral consultations with a general practitioner, consultations with a psychologist and psychiatrist and associated costs for psychotropic medication, which the plaintiff presently continues to take.
Given that the plaintiff's PTSD condition has become chronic and entrenched, I consider it reasonable to allow for such treatments in the short to medium term in the hope that treatment might to some degree ameliorate the extent of the plaintiff's suffering. However, I do not consider the claim as formulated requires projection over the entirety of the plaintiff's probable life span.
The evidence does not permit or justify a precisely analysed weekly amount for projection. In those circumstances, I consider that an allowance by way of a buffer is the most appropriate method by which to compensate the plaintiff for his accident-related need for future treatment, especially as the condition is chronic. I consider the appropriate amount for a buffer for future treatment expenses to be $7500.
I therefore award the plaintiff damages for future out-of-pocket expenses assessed in the buffer amount of $7500.
Past out-of-pocket expenses
The plaintiff makes a claim for out-of-pocket expenses in the amount of $7197.05. That sum comprised the total of the amounts set out in the 8 documents in respect of the 10 items, which formed Exhibit "S".
In contrast, on behalf of the defendant, it was submitted that the amounts comprising Exhibit "S" were disputed. The defendant provided a counter-schedule which set out objections to 7 items of the plaintiff's claim for out-of-pocket expenses. Those objections totalled $6313.90, thereby conceding a balance of $883.15.
Some of the defendant's objections have some force.
For example, no receipts or other documentation have been provided in respect of the claim of $1000 for travel, and no receipts have been provided in respect of the claim of $1000 made in respect of the cost of medication. Furthermore, the defendant points out, that the claim for $1273 in respect of imaging studies of the plaintiff's spine were incurred for medico-legal purposes and not for treatment, thereby identifying that amount as being a matter for a costs assessor.
On the other hand, some of the objections raised by the defendant are based upon the notion that the need for psychological treatment was unrelated to the subject accident, a submission that I have not accepted.
That said, for whatever reason, the evidence in support of the claim for past out-of-pocket expenses remains limited and incomplete.
Nevertheless, the plaintiff has over time been seeing general practitioners, psychologists and a psychiatrist for accident-related problems as earlier described in these reasons. He has also been taking psychotropic medications that have been prescribed for him over time.
In my view that evidence justifies an award for out-of-pocket expenses in a modest and rounded down buffer amount which also incorporates the limited amounts conceded by the defendant, notwithstanding the absence of documentary proof. I consider an appropriate buffer sum to be the amount of $2500.
I therefore award the plaintiff damages for past out-of-pocket expenses assessed in the buffer amount of $2500.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non-economic loss
$225,000
(b) Past economic loss
$25,000
(c) Past loss of superannuation
$2,750
(d) Future economic loss
$250,000
(e) Future loss of superannuation
$33,975
(f) Future domestic assistance
$92,904
(g) Future out-of-pocket expenses
$7,500
(h) Past out-of-pocket expenses
$2,500
Total
$639,629
Disposition
The plaintiff has established an entitlement to an award of damages in his favour in the sum of $639,629.
Costs
Consequent upon the outcome of the proceedings, the plaintiff is entitled to an order for costs against the defendant on the ordinary basis unless a party is able to show an entitlement for costs to be assessed on some other basis.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the sum of $639,629;
(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
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Amendments
23 July 2014 - Slip rule amendment - "$669,466" is replaced with "$639,629"
Amended paragraphs: Coversheet
Decision last updated: 23 July 2014
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