Wallace v Austin - [2011] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALLACE -v- AUSTIN [2011] WADC 3

CORAM: SWEENEY DCJ

HEARD: 27-29 APRIL 2010

DELIVERED : 20 JANUARY 2011

FILE NO/S: CIV 218 of 2008

BETWEEN: KENNETH WALLACE
Plaintiff
AND
CARL FRANK AUSTIN
Defendant

Catchwords:

Personal injury claim - Liability admitted - assessment of damages - Pre-existing conditions - Turns on its own facts

Legislation:

Nil

Result:

Awarded $2,215.85 damages

Representation:

Counsel:

Plaintiff: Mr G M McIntyre SC
Defendant: J R Brooksby

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: WHL Legal Pty Ltd

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

Graham v Baker (1961) 106 CLR 340
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Weinman v Botten (1991) 104 FLR 146
Wilson v Peisley (1975) 7 ALR 571

SWEENEY DCJ:

On 15 November 2005 Mr Wallace was making a right‑hand turn from Craigie Drive onto Ocean Reef Road in Beldon. He had crossed the two eastbound lanes of Ocean Reef Road and was sitting in the central median strip, waiting for the traffic to clear, before he could enter one of the westbound lanes. He was struck from behind by Mr Austin and says the force of the jolt was sufficient to dislodge his radio from the dashboard and cause items to fall out of the glove box. His car was able to be driven from the scene, but apparently later required $4,364 worth of repairs to the rear bumper and panel.
Now he sues for damages for personal injuries. Liability is admitted. Although, in the pleadings, injury is denied, all of the evidence is to the effect that Mr Wallace did suffer at least mild soft tissue injuries during the collision. The defendant did not seriously contend otherwise. The extent of the injury is very much in issue however.
Assessment of the quantum of damages in this case is complicated by Mr Wallace's prior injury of each of his shoulders in turn and the discovery, sometime following the collision, that he suffered from degenerative disease in his neck and lumbar back. Live issues before me include the extent to which any soft tissue injuries incurred in the collision exacerbated that degenerative condition and the extent to which Mr Wallace's capacity for work has been reduced given that, prior to the collision, he was working very minimal hours.
For the reasons detailed below, Mr Wallace's claim has substantially failed. He has failed to prove that any reduction in his work capacity has been productive of economic loss and his claims for general damages and gratuitous services rendered him by his wife and sons do not cross the thresholds set down by Parliament to enable awards of damages to be made. I have awarded only modest amounts for travelling expenses and the like.

Some comments on the plaintiff's evidence generally

Mr Wallace was not a good witness. For reasons which I have addressed in more detail at times in this judgment, I do not find him to be reliable in various aspects of his evidence. He was a poor historian and has given inconsistent accounts to the various medical specialists he has consulted. The various accounts he has given of the onset of his symptoms are quite markedly different. For example, to Dr Harper and Professor Stokes he claimed that his right leg pain came on within one or two weeks respectively after the collision, while also conceding in evidence that it was possible it did not emerge as a symptom until 13 months after the collision (which is when he first complained of it). His account to the doctors was significantly inaccurate.
His change of account in relation to whether or not either, or both, of his shoulders had been injured in the collision was quite extraordinary. I detail that later. I do not accept that Dr Harper and Mr Anastas could have so misunderstood his complaints, or so misquoted him. His evidence about that aspect was utterly unreliable.
In assessing his evidence, I have been mindful of the fact that years have passed since the collision in November 2005 and the giving of evidence in April 2010. One might expect some changes in account over that period of time. And unless a person kept a diary of his symptoms, he could hardly be expected to give a detailed and totally accurate account of how each symptom progressed. There is also evidence from Dr Fellows‑Smith, psychiatrist, to the effect that Mr Wallace may suffer from a mild cognitive disorder as evidenced by his inability to recall dates and sequences and I have taken that into account.
But it is difficult to see how, even allowing for the above factors, a witness could have a recollection of a symptom coming on soon after a collision, when the first complaint of that symptom was more than a year after the collision. One might well not recall precisely when the symptom first presented, but one should still be aware that it was a long time after the collision. There is a vast difference between one or two weeks post‑collision, particularly when Mr Wallace did not consult a doctor at all until nine days post-collision, and 13 months. I would not expect such confusion, or vagueness, in an honest and reliable witness.
Nor would I expect a witness to so often claim to have been misquoted or completely misunderstood by others including, in this case, his general practitioner, a psychologist who assessed him for Centrelink assistance, Dr Psaila‑Savona, Dr Harper and Mr Anastas. Each of these witnesses noted down some symptom Mr Wallace complained of, which in evidence he denied, or quoted him as making some comment, which in evidence he denied. I have detailed these later.
Mr Wallace was also quite dismissive in his assessments of Dr Mutahar and Dr Narula, in effect claiming they were dismissive of his complaints and/or spent little time with him. Each of those witnesses in very broad terms has said there was little objective evidence to be found. It was clear that the purpose of these dismissive comments by Mr Wallace was to reduce their credibility.
A medical expert can, of course, make a mistake like anyone else, but one expects a degree of care in the preparation of their reports. None of the medical witnesses (Dr Narula and Mr Zandi were not called) struck me as careless or casual witnesses, or as doctors who failed to appreciate the significance of taking an accurate history. I have no reason at all to conclude that any of the medical witnesses were unprofessional, or disinterested, or prejudged Mr Wallace's condition without making an appropriately thorough clinical examination.
As is detailed below, Mr Wallace suffered injuries prior to the collision to each shoulder and also suffered sleep apnoea. When applying for a Newstart allowance with Centrelink and when his capacity to work was assessed in various medical reports, these injuries and conditions loomed large. They justified him receiving benefits.
He has been compensated for the injury to the left shoulder, but cannot claim compensation for the right shoulder injury nor the sleep apnoea.
During the trial, however, which of course focused on the extent to which injuries received in the collision impacted upon his life, these prior conditions appeared to have been distinctly understated in comparison to the documents generated for the purpose of receiving the allowance or pension. As is detailed below, I find those prior injuries and sleep apnoea in fact had already reduced Mr Wallace's capacity for work very substantially.
When questioned in cross‑examination generally, he was defensive and often gave unresponsive answers. Even when questioned about his own taxation returns, Mr Wallace seemed at pains to point out that a friend had prepared them and deflected several questions in that manner. I have taken into account the obvious fact that cross‑examination of a person unused to the courtroom atmosphere is no doubt a nerve‑wracking experience, but still, it seemed to me, Mr Wallace did not want to be pressed on specific details and tried to deflect numerous questions. Overall, he was not a convincing witness.
All of these comments are not to say that I regard Mr Wallace as necessarily a consciously dishonest witness. But I do consider him to be unreliable. I think it likely he has become genuinely convinced that the collision was the real cause of his loss of ability to work and has rationalised away the reality of his position prior to the collision. I think over time he has convinced himself that he was coping fairly well with these pre‑collision issues and had a positive plan to become physically able again, until the collision put paid to all that. The reality, I find, is quite different.
I find that his inability to tell a consistent story to the various specialists has been brought about because Mr Wallace has, over time, convinced himself of certain facts consistent with his claim and, the further the passage of time since the collision, the more his story moulds itself to support his claim. I do not consider his probable mild cognitive disorder to be the explanation for his generally unimpressive evidence or the significant inconsistencies in his account to the doctors.
I regard his evidence to the effect that he cannot remember when certain symptoms came on as probably accurate, because his memory has been rendered unreliable by his desire, conscious or unconscious, to view the past consistent with the view that it was the collision which interrupted all his future plans.

Plaintiff's medical condition and capacity to work prior to the collision

It is impossible for me to determine the precise dates of some of the events which occurred in the years prior to the collision. Counsel have mentioned precise dates to me in their submissions, but not supported by evidence. I do not consider anything turns on the precise dates.
In September 2002, some three years prior to the collision, Mr Wallace was employed by Elite Pest Control, a small pest control firm, and was working as a pest controller when he tripped over a cable and injured his left shoulder.
Following the accident he described his shoulder as 'bad' and said the employer 'used to call me Woody which is an old character that has a bad shoulder' (ts 30).
Mr Wallace left that firm around early October 2002, because he had in mind starting his own pest control business and had purchased a van, equipment and chemicals to that end. He applied to Centrelink for a 'Newstart' allowance to provide him with some benefits while starting up his business. From the evidence of Dr Fellows‑Smith it also appears that Mr Wallace studied a TAFE course in order to get his licence.
His business, Celtic Pest Management, commenced and things started very slowly, but his left shoulder 'got very sore' (ts 30) and ultimately, after receiving some advice about his entitlements, he filed a workers' compensation claim against his previous employer.
Amongst the documents before me is a series of business detail printouts which appear to emanate from Centrelink and indicate Mr Wallace's net income, but they do not appear to me to be consistent with Mr Wallace's own handwritten notes or his taxation returns and, in the absence of any evidence as to their accuracy or the source of the figures contained within them, I have preferred to consider Mr Wallace's own notes and taxation returns. His handwritten notes of the customer jobs he performed from the start of his business until the end of 2002 list a total of five jobs earning $1,116. That is consistent with his taxation return. His expenses, however, exceeded his income, so the business ran at a loss.
It would appear from his handwritten notes that Mr Wallace did not work at all during the first half of 2003. From 24 December 2002 onwards, he was certified unfit to work by his treating general practitioner, Dr Kuriyan. The first medical certificate before me is dated 13 January 2003, in which Dr Kuriyan certified that he had diagnosed Mr Wallace with a rotator cuff injury to his left shoulder, with symptoms of pain and an inability to lift the shoulder. He was noted to be awaiting surgery to repair the rotator cuff and was certified unfit to work until 24 February 2003.
It appears from a medical certificate of 29 May 2003 from Dr Kuriyan that Mr Wallace underwent the surgery on 24 February 2003 and was certified unfit for work until 10 August 2003. It was Mr Wallace's recollection that the operation was in January 2003 rather than February, but nothing turns on that. Dr Kuriyan also certified that Mr Wallace was not able to do his usual work for eight hours or more per week at that stage.
Mr Wallace described the surgery in relation to his left shoulder as:
A very, very sore operation … As I said, it was very, very sore. I was on a lot of medication. I had, I think it was morphine, even pumped into my shoulder. So that took about a year to heal and I started going back to work for myself (ts 31).
In his work capacity assessment of 5 June 2003, arranged by Centrelink for the purpose of the Newstart allowance, Mr Wallace supplied a medical certificate from his doctor indicating that, in the treating doctor's opinion, the rotator cuff injury was not likely to have an impact of more than two years. Mr Wallace indicated that 'ongoing symptoms interfered with ability to perform work tasks and has since ceased'.
His work capacity at that time in the absence of any intervention programmes was assessed at more than 30 hours per week, but only on the basis that he worked as a pest control call centre operator. He was assessed as being unable to perform certain aspects of pest control work, but it was considered he would be able to physically cope with alternative roles. There is no evidence before me as to whether such work was ever available or sought out by Mr Wallace.
The author of the resulting assessment indicated, under the heading 'Reasons Supporting Impairment Rating Recommendations' that the strength in Mr Wallace's left arm was increasing but he did not have full use of the arm and had 'difficulty lifting weights and is safety hazard when working in confined roof cavities. Ability to perform job tasks is made more difficult, and finds it takes significantly longer to complete tasks'. The author also noted:
Some aspects of [household] tasks difficult – i.e. overhead reaching when hanging out clothes + sweeping, otherwise manages all other tasks.
Mr Wallace testified that the left shoulder took a
very long time to heal and it played on my mind quite a lot. As I said, I had the operation in January – January '03, and I didn't start getting into work for another – about a year. It was quite sore. The operation was quite sore and I said that's where I discovered I had sleep apnoea, because after the anaesthetic, an alarm kept going off and a 'beep, beep, beep' sound. And I was told that I was – stopped breathing. That frightened the hell out of me (ts 32).
He said that his left shoulder was currently '90 per cent good. You must remember I'm not using it, you know' (ts 31). He said prior to the collision his left shoulder was not restricting his capacity to work and 'that was fairly good' but 'I was always careful as to how I lift something and I didn't have to do a lot of heavy lifting' (ts 32). He said one of the hardest things about pest control work is the need to work in confined spaces and grip onto beams for balance but he considered that, prior to the collision, his left shoulder was not inhibiting him from performing his work. That needs to be viewed against the backdrop, however, that he was doing very little work and so the shoulder was not being taxed.
He denied telling Dr Mutahar in February 2007 that his left shoulder was still weak (ts 127). In fact he denied complaining of left shoulder symptoms to Dr Harper and Mr Anastas as well.
According to Mr Wallace it was approximately a year after the surgery that he was informed that the operation had triggered a condition of sleep apnoea, from which he still suffers.
The last medical condition printout from Centrelink covering this injury to the left shoulder certified that Mr Wallace was unfit to work until 10 August 2003. His handwritten notes indicate that, during the financial year 2003/2004, he earned $3,650 from his pest control work. There is no breakdown of how many individual jobs he did, or when he did them. The expenses far exceeded the earnings and the business ran at a loss. He received Centrelink benefits of $8,899.
In June 2004 Mr Wallace suffered a second injury. He and his wife were sleeping in single beds by that stage and it appears, perhaps because he suffered an adverse reaction to taking painkillers prescribed for his wife, that he hallucinated, seeing a snake on his wife's bed. He leapt over to save her and lost his footing, his foot slipping down into the headboard at the bottom of the bed. He fell onto his right shoulder.
He sought medical treatment. It was while sitting in reception at the doctor's surgery that he saw a poster on sleep apnoea and spoke to the doctor about it, who put him on a waiting list for that condition to be assessed. In the meantime, he was sent off for an ultrasound on his right shoulder.
Mr Wallace testified that, when he first injured the right shoulder, it was 'very sore, quite sore' and said 'When I was doing nothing – it's only when you start working with it, it gets quite sore' (ts 33). He placed the level of pain he suffered when it first occurred at 7 out of 10, depending upon how he moved it.
Dr Kuriyan diagnosed Mr Wallace as having sustained a rotator cuff injury to his right shoulder and described the symptoms as pain on abduction and rotation. Centrelink medical condition printouts indicate that Mr Wallace was certified unfit for his usual work from 9 July 2004 through to 12 November 2005 by Dr Kuriyan.
In his medical certificate of 21 December 2004, Dr Kuriyan certified Mr Wallace as unfit for his usual work until 7 February 2005 but fit to perform light duties for eight hours or more per week. He also noted that Mr Wallace was awaiting surgery and was likely to show considerable improvement six months post‑surgery. It is unclear just when the issue of surgery was first raised and by whom, but obviously it had been raised by 21 December 2004, 11 months prior to the collision.
Mr Wallace's handwritten notes indicate that he was working during the 2004/2005 financial year, but certainly performing only a modest number of jobs, only 18 during July – December 2004 and none in December, which coincides with the medical certificate. He performed only 28 jobs during January – June 2005, earning $7,765, consistent with his taxation return. This was a modestly better year than the year before in terms of earnings, but again, the business ran at a loss. He also received Centrelink benefits of $7,434.
Mr Wallace agreed in evidence that his business made a loss every year and commented 'it was the idea, was just to keep the business afloat until things got better' (ts 86). He added:
My position was - I'd one accident after the other, okay. I had a van that I always wanted to do pest control, start my own business. And just I was hit by different accidents. I knew I was running at a loss but I was happy doing little bits of work. It kept me sane. I put my tax returns in every year; they were running at a loss. I knew they were running at a loss. But the business was still there (ts 87).
He agreed that he was working only a couple of hours per week and that he could not say that he was working at any particular hourly rate because each job was charged differently (ts 88).
Towards the end of that financial year, in May 2005, Mr Wallace was referred to Mr Homan Zandi, orthopaedic surgeon. Mr Zandi did not testify before me, but his various reports were tendered by consent. In his first report of 6 May 2005 Mr Zandi indicated that an ultrasound performed in July 2004 on Mr Wallace's right shoulder indicated a rotator cuff tear of about one inch in diameter. Mr Zandi noted:
Overall, his symptoms are not too bad, however, given that he has had a lot of trouble with the left shoulder, he is concerned as to whether it is really worthwhile doing the right side or not. I have expressed to him that sometimes rotator cuff tears, if left for long periods, can become irreparable as they can grow larger and some can become arthritic.

Mr Zandi organised for Mr Wallace to have an MRI on the right shoulder. It is apparent from Mr Zandi's comments that Mr Wallace was reluctant from the outset to have the surgery.
In the follow-up report of 23 May 2005 and now armed with the results of the MRI, Mr Zandi noted that Mr Wallace had a full thickness complete tear of the supraspinatus which, in Mr Zandi's opinion, required surgery. He noted that Mr Wallace:
…does not have any significant fatty atrophy or fatty replacements at this stage. Thus hopefully if we can get to this early enough we will be able to do the repair and get him moving adequately. He understands the risks, as he has had the surgery done before. I have gone through the risks of surgery again with him today in detail. I have placed his name down at Joondalup Health Campus as a Category One for acromioplasty and cuff repair.
It is plain enough from that report that, in Mr Zandi's opinion, surgery was both necessary and needed to be done as quickly as the health system might allow. This was six months prior to the collision.
Mr Wallace was first noted to be awaiting surgery in Dr Kuriyan's medical certificate of 21 December 2004. The topic must then have been raised with Mr Wallace by that stage, though by whom it is not clear. Mr Zandi then progressed the issue by putting Mr Wallace's name down as a category one.
Mr Wallace said that, at the time he was told he was wait‑listed for surgery, the level of pain in his right shoulder
Wasn't bad for the simple reason I wasn't doing a lot, but had I been working hard or working eight hours a day there's no way I would have done it. Not just a small – small amounts of work, because it would've been quite painful if I was using it all the time (ts 35).
He said at that time he was only doing a couple of hours work per week and for some weeks he worked longer hours than others, depending on how he felt and what kind of jobs had come in. He also said he would pick and choose which work to do and instead of, for example, inspecting a roof, he would simply spray for ants, the implication being that that was a less physically onerous task. He said he gave away a lot of work to a friend. That accords with his income that year.
In Mr Wallace's work capacity participation assessment report of 7 December 2005 (shortly after the collision) he reported that he had 'limited physical abilities with (right) arm to lift, carry, move shoulder out to the side/up'. He described his physical limitations as 'restrictions apply to type of work/environment due to right shoulder'.
Under the heading of 'Identify Appropriate Interventions For The Customer' the author recommended surgical treatment for the right shoulder and that Mr Wallace improve his physical fitness. At that time the author assessed that Mr Wallace had a current work capacity of eight to 14 hours per week (so no more than two hours per day) and a similar work capacity within six months, but anticipated that within six to 24 months his capacity would return to 30 plus hours per week. The reasons for this assessment were stated as 'post‑surgery and recovery (full‑time work capacity) as will regain full use of (right) arm'.
In that same assessment, Mr Wallace's sleep apnoea was described as 'mild – moderate (symptoms), irritating but rarely prevent completion of any activity'. Mr Wallace reported 'feeling tired and lethargic and gets most of his activities done in the morning as he feels most tired in the afternoons'. His sleep apnoea at that stage was rated 'temporary as customer is waiting for funding to have machine at home with mask'.
In his Centrelink participation plan of 22 December 2005, Mr Wallace described his goals as:
•My ongoing goal is to Work towards better health. Waiting for shoulder surgery and increase fitness level.
•In the Long term, my goal is to be working up to 14 hours per week in my self-employment.
•In the Short term, my goal is to continue with voluntary work as this keeps me active while I am having to be patient with seeking solutions for my health issues.
Under the heading 'Things that might be relevant to reaching my goals' Mr Wallace stated:
Will attend appointment at sleep clinic with Sir Charles Gardiner (sic) Hospital in July to address sleep apenia (sic) disorder.
Under the heading 'How I will reach my goals' Mr Wallace stated:
Have my apenia under control so i can have my shoulder operation and then I can gain more work of 30 hours per week in 6 months time.
Mr Wallace thought in evidence that the reference to 14 hours was a typographical error and said that his goal was to work 30 hours. He said:
When – at this stage I had various sleep apnoea machines, masks and so forth. It was around that time I got a good mask but I had to shave – I always had a moustache and I had new mask, a full face mask, and I found that quite good. And – but before I had the operation, which I was a bit scared to have one – I was really frightened. I had to have the sleep apnoea under control before I could have that operation. But as soon as I had the operation it would give about six months, maybe – possibly a year before I could get back to 30 hours a week. Based on the left shoulder. This is what I was thinking. (ts 40 ‑ 41)
Mr Wallace never did have that surgery for his right shoulder. In a much later report of 26 May 2009 Mr Zandi stated that Mr Wallace was 'deemed to be a relatively urgent case as far as cuffs are concerned' but continued:
He was placed down as a category one and scheduled to have the surgery done, he did have sleep apnoea which was diagnosed following his surgery on the left shoulder. For reasons unknown to me he has not had his surgery, partly because of his sleep apnoea and partly because he was not ready for the surgery. It is now four years down the track and I feel the tear is most likely no longer repairable. These tears, if left alone, do become atrophic and there is no doubt there will be a substantial amount of fatty replacement in the shoulder.
Mr Zandi stated that, as a general rule, such injuries respond well to surgery if attended to adequately at an early stage and about 85% – 90% of patients regain adequate function, although there remained a risk of recurrence of tears. He also expressed the view that, had Mr Wallace had the surgery, there would be an expectation of nine months' recovery time needed. Clearly from the report, however, Mr Zandi felt that the opportunity, afforded at least sometime after 23 May 2005, for Mr Wallace to undergo surgery while there were no significant fatty atrophy or fatty replacements and while there was good prognosis, had been lost by the delay in surgery. It is also apparent that surgery had in fact been scheduled at some stage.
As to why he did not have the surgery, Mr Wallace stated in evidence:
I was put on the waiting list by Mr Zandi. And he explained to me – but Mr Zandi frightened me because he told me that I had to have my sleep apnoea under control before he would operate on me, you know? And that more or less I could die on the table. And that made me think, you know, should I have it done, will I have it done, but anyway, I continued on, waiting for someone to call me, say 'Mr Wallace, are you ready for the operation?' but that never happened. (ts 34)
A little later Mr Wallace stated:
And – but before I had the operation, which I was a bit scared to have one – I was really frightened. I had to have the sleep apnoea under control before I could have that operation. But as soon as I had the operation it would give about six months, maybe – possibly a year before I could get back to 30 hours a week. Based on the left shoulder. This is what I was thinking. (ts 41)
Mr Wallace was asked in evidence about his intentions if he had gone ahead and had the operation on his right shoulder. He said:
That was – as I say, that was – that was my goal. That was just after the accident. But when I say after the accident, that was December. I didn't get results, I know, about having a bad back till February, that I had the x‑rays. But in December when I was in Centrelink, they – they – they were my goals then – was to get the operation – get – the hardest part was having the operation. I found it hard, like. I didn't know whether I wanted it or not, but I knew I had to have it to get things going again because of my experience with the first operation. But I had – as I said, I had to have my sleep apnoea under control and that was – that was – that was going good with – with the new mask. And I – I reckon I would've got the operation done if – if someone says, 'Mr Wallace, your – your operation's tomorrow'. I was kind of avoiding it. I didn't want it, but at the same time, if someone said to me, 'Mr Wallace, come up and have your operation' I would've done it. Cos I felt more confident now with the – with the new mask, with the sleep apnoea mask. And with the operation, give it six, nine months I should have been back almost 100 per cent. (ts 51)
In fact, Mr Wallace didn't 'get results … about having a bad back' until December 2006.
Mr Wallace said that he anticipated that, if he had had the operation, he would have been back to working 30 to 40 hours per week because there was lots of work out there and he expected then to be earning about $1,000 per week and said 'You don't have to work hard for $800'.
Mr Wallace said he first went to the clinic for sleep apnoea in December 2004 and they tried various different masks and it was not until he got the full mask that he felt happy with it. He said he got the full mask about six months after he was first referred to the clinic. It seems he has tried a number of masks since to find the perfect mask, but it would appear his sleep apnoea was at least being treated with some success by 2005. Mr Wallace's descriptions of his sleep apnoea and its severity have been somewhat varying.
Mr Wallace was certified unfit for his usual work on account of his right shoulder injury and sleep apnoea until 12 November 2005 by Dr Kuriyan. Three days later the collision occurred.
In December 2007, two years after the collision, Mr Wallace gave away his business altogether as he had reached the view that he could no longer do the work.
In the plaintiff's 'Answers to request for further and better particulars of statement of claim' filed 8 August 2008 it is asserted:
Given that the plaintiff would, if not for this accident, have been recovering from two shoulder operations, it can be assumed that he would not have been fit to work in his own business until in or about January 2007. From then on until now, it can be assumed that he would have gradually increased his hours and activity from earning a part time income to a full time income by now.
In the amended particulars of damages dated 19 April 2010 it is asserted:
Prior to his motor vehicle accident dated 15 November 2005, the plaintiff planned to have a right shoulder operation in or about 2006 and to recommence his Pest Control business on a full‑time basis in January 2007 or thereabouts…The Plaintiff has not yet had the surgery to his right shoulder and will not now do so because his accident related back injury alone prevents him from resuming his pre-accident occupation.
The evidence falls considerably short of establishing that Mr Wallace was intending to have that operation.
In his treating doctor's report of 27 February 2007 Dr Mutahar described Mr Wallace as suffering from tendinopathy (inflammation of the tendon) in both shoulders. In relation to his left shoulder Dr Mutahar indicated that, as at the date of the report, both shoulders were still giving Mr Wallace some pain, but the right more so than the left. He said that the left shoulder was stabilised but the right, by contrast, was still weak, with intermittent pain. At that stage he described Mr Wallace as 'waiting for the surgery. That was a future plan, you know' (ts 227). That was almost two years after Mr Zandi had recommended surgery and made it clear it should be done soon. In evidence, Mr Wallace denied telling Dr Mutahar that his shoulder was still weak, but I am satisfied that he did. What Mr Wallace said to his doctors is not his evidence as such, but where it amounts to a prior inconsistent statement it has bearing on his credibility.
In his first report of 22 April 2008 Dr Fellows‑Smith, psychiatrist, said of Mr Wallace:
Dr Bhasin referred him to orthopaedic surgeon Mr Zandi at Joondalup Health Campus however he did not undergo an acromioplasty and cuff repair due to his concerns that his left shoulder was worse following surgery.
In his report of 10 January 2008 Dr Andrew Harper, occupational physician, referred to Mr Wallace experiencing left shoulder pain and very sharp left upper arm pain similar to that he had experienced in the past when he injured his left shoulder. Mr Wallace complained that this occurred five nights per week, persisting for an hour. Although it was initially supposed by counsel that this might be a typographical error and a reference to Mr Wallace's right shoulder, Dr Harper testified that, not only did his original notes consistently mention the left shoulder, but he had also drawn a diagram indicating the source of the pain and had indicated the left shoulder.
I am satisfied therefore that Mr Wallace was complaining about his left shoulder, lending support to the suggestion that, at least in Mr Wallace's view, the surgery on the left shoulder had not been an entire success, although he also claimed to Dr Harper that, prior to the collision, he had been free of left shoulder pain. In evidence, Mr Wallace denied that he had complained of pain in his left shoulder to Dr Harper, but I reject his evidence on that point.
In his third report of 8 March 2010 Dr Harper said of Mr Wallace:
He says that with regard to the right shoulder he is able to live with this problem.
In his report of 7 December 2006 Dr Paul Psaila‑Savona, consultant occupational physician, commented:
Approximately two years ago he was asleep on the bed and fell off onto his right shoulder, injuring this shoulder. He said his right shoulder is sore but not restricted. He has been offered surgery but so far he has declined this offer.
In his follow‑up report of 28 October 2008 Dr Psaila‑Savona stated:
In regard to his right shoulder, he said that the only time it is painful is when he tries to scratch the back of his head. He said that he is still on the waiting list for surgery on this joint, but he is determined not to have surgery on the right shoulder because of the very bad experience he had with pain in the left shoulder subsequent to surgery. When asked why his name is still on the waiting list, he said that he was advised to keep his name there.
Dr Psaila‑Savona testified that, as at his October 2008 assessment, Mr Wallace
…did indicate to me that his left shoulder – he had surgery for the left shoulder, but that wasn't a great success, and therefore he was very reluctant to be able to undertake any further surgery on his right shoulder because his left shoulder continued to give him pain. (ts 294)
A little later in his evidence the following exchange took place:
BROOKSBY, MR: And still has right shoulder problems in the last paragraph, under that heading? – Yes.
But still waiting for surgery? – Yes. But he didn't want surgery.
He didn't want it. Right. And I think you've confirmed that, because of the bad experience with his left shoulder? – Pardon?
Because of the bad experience with his left shoulder? – That's – that's correct. (ts 299)
Mr Wallace confirmed in evidence that he did not regard the operation on the left shoulder as a great success and commented: 'I don’t think any shoulder operation is going to be 100 per cent anyhow' (ts 127).
In his first report of 29 May 2008, Professor Stokes, neurosurgeon, stated:
In 2002 while working for a company called Elite Pest Management he had an accident in which he slipped on a cable and fell heavily onto his left shoulder and subsequently in January 2003 had an operation on that left shoulder. He stated that that was not particularly successful. … In June 2004 he had an episode in which he awoke suddenly from his sleep and was hallucinating and injured his right shoulder. It became apparent that he had sleep apnoea and his orthopaedic surgeon, Dr Zandi stated that he does need an operation on his right shoulder but he would not be prepared to do that until the sleep apnoea situation was under control. From 2004 to November 2005 he was not doing full work but was working some two hours a day in his business because of his painful right shoulder. The left shoulder was not impeding him at that time.
Professor Stokes concluded:
I do not believe there is anything further that can be offered him until his right shoulder is attended to and at that stage when that is satisfactory he should commence a swimming programme.
Professor Stokes testified that, until Mr Wallace's right shoulder is operated on, it presents a barrier to his engaging in a swimming programme and also possible rehabilitation into any other form of work.
Mr Wallace's assertion that Mr Zandi had given him to believe he could die on the operating table is probably what he drew from Mr Zandi's explanation to him of the risks of surgery, surgery he was already reluctant to have, but it is apparent from his report that Mr Zandi was mystified as to why the surgery had not occurred. I am mindful of the fact that Mr Zandi did not testify before me, but his report is plain enough. His reference to the patient having sleep apnoea was clearly not seen by him as providing the obvious and complete explanation, which it surely would have done if he had placed the sort of emphasis on the sleep apnoea that Mr Wallace attributed to him. Mr Wallace stated that he purchased a full face mask, which was comfortable to sleep with, for the purpose of managing his sleep apnoea, at least by early 2005. That was well before the collision.
I am not satisfied that, but for the collision occurring in November 2005, Mr Wallace would have undergone surgery on his right shoulder. There is no suggestion in any of the medical evidence that any injuries he received during the collision prevented him from undergoing that surgery. Mr Zandi regarded that surgery as being relatively urgent in May 2005. The sleep apnoea has been managed with at least some degree of success now for years. And as to Mr Wallace appearing to link his failure to undergo surgery to the discovery that he had degenerative disease in his lumbar back, he found that out in December 2006, 18 months after his name was put down for surgery. At the time of trial the surgery had still not occurred and it is very doubtful now whether it would be at all successful given the delay.
I find that Mr Wallace has been unwilling to undergo the surgery for three reasons. Firstly, he is reluctant to undergo such a painful operation with such a lengthy recovery period. Secondly, he does not regard the surgery on his left shoulder as having been a complete success and is reluctant to undergo the same experience with no guarantee of success. Finally, he is highly anxious that he will not survive the surgery given his sleep apnoea.
Whether that last fear is reasonable or not, or justified by the current state of the sleep apnoea or not, I accept that it is genuinely held and, as Mr Wallace testified, while his sleep apnoea is now more successfully managed, 'No‑one has said to me, "Your sleep apnoea's gone" ' (ts 103). Mr Wallace's description of the level of severity of his sleep apnoea varies throughout his evidence and what he has said to those assessing him, but I find that he did maintain a genuine fear of the sleep apnoea. He also blamed his left shoulder surgery for having triggered the sleep apnoea (ts 31). He described being told that he had stopped breathing while under the anaesthetic – 'that frightened the hell out of me' (ts 32) ‑ which does not mean, of course, that there was any causative link. It matters not whether his belief that surgery triggered the sleep apnoea is accurate or not. It is his belief and highlights his anxiety about surgery.

I find that, irrespective of whether the collision had occurred or not, it is highly unlikely that Mr Wallace would have undergone that surgery. It was put to Mr Wallace in cross‑examination (ts 77) that he was booked for surgery by Mr Zandi on 21 December 2004, to which Mr Wallace replied 'Yeah. He wasn't booked for surgery till May or five – about six months later'. This is a confusing reference by counsel to Dr Kuriyan's medical certificate of 21 December 2004, describing Mr Wallace as awaiting surgery. There is nothing in Mr Zandi's first report of 6 May 2005 which suggests he had seen Mr Wallace on a prior occasion. The reference is confusing and unfortunately Mr Wallace has a tendency to not express himself clearly, but I at least draw from that reference that surgery was booked.
While the evidence is not totally clear that he was informed his place in the queue had arrived, Mr Zandi described the surgery as having been 'scheduled' and he was described as 'not being ready' for the surgery and Dr Psaila‑Savona described surgery as having been 'declined'. It is not really conceivable that the waiting period had not ended at some stage in the last five years.
I infer that, had Mr Wallace genuinely wanted and been ready to have the surgery, it would have happened reasonably soon after Mr Zandi had arranged for him to be placed down as a category one and scheduled to have surgery.
I can find no basis for concluding that the motor vehicle collision cost him that opportunity or has presented any sort of bar to surgery. At most I find that the eventual discovery that he had degenerative disease may have reaffirmed the position that Mr Wallace had already reached in his own mind to not endure the pain and risk of surgery, even though he left his name on the waiting list on advice. I do not accept what Mr Wallace told Dr Harper in January 2008, namely that the collision had 'knocked out his plans for the future', the implication being that, but for the collision, he would have forged ahead with that surgery. I do not accept he would have.
And while ever his right shoulder continued to give him pain, it presented a barrier to any full‑time work load, because of the requirement in pest control work that he negotiate awkward, narrow spaces. Mr Wallace denied that his shoulder problems and sleep apnoea continued to prevent him carrying out work (ts 101) but I reject that assessment.
In his report of 19 April 2006, Mr Soni Narula, neurosurgeon, said:
He stopped working as a pest control man because of generalised wear and tear and right shoulder problems for which he still awaits surgery. He also has sleep apnoea.
In his report of 10 January 2008, Dr Harper said of Mr Wallace:
Prior to the motor vehicle accident he was working 2 hours per week as a pest controller being self-employed. He was only doing small jobs and he was not working in awkward positions or confined spaces. He limited his work because of fatigue due to sleep apnoea and right shoulder pain.
Perhaps, notwithstanding the shoulder pain, he could have continued to pick and choose his jobs, diverting the more physically demanding jobs to another and working such hours as he could manage, as he had done prior to the collision. Certainly, he is unlikely to have ever found an employer who could accommodate such a need for flexibility and very much reduced hours. Realistically, only a self-employed worker could accommodate such a routine.
Mr Wallace has also, perhaps prior to the collision (his account of just when he started the voluntary work varies) and certainly since, been doing some voluntary work, about eight hours a week. He explained that he accompanies a qualified tradesman to the homes of the elderly and assists the tradesman in his work. This assistance is not of a physically demanding kind – it is more in the form of handing the tradesman tools and turning taps on and off and generally, as I understood his evidence, doing the little time‑saving chores that enable the tradesman to more efficiently focus on the task at hand. I have no reason to think that there is any potential to turn this type of work, done voluntarily, into income in the future. Mr Wallace simply enjoys the work and the social interaction it gives him.
This brings me now to focus on the further pre-collision difficulty Mr Wallace suffered from, namely the previously‑mentioned sleep apnoea.
Some time after injuring his right shoulder in June 2004, Mr Wallace was waiting in the reception area of his general practitioner and noticed a poster on the topic of sleep apnoea. His wife had previously commented to him that she had noticed he sometimes stopped breathing in his sleep. He raised his concerns with his doctor and ultimately was sent to a Joondalup clinic. Mr Wallace testified that in December 2004 he was sent to Sir Charles Gairdner Hospital and stayed overnight. They ran a diagnostic test, which confirmed the condition.
Since then, Mr Wallace has worn a face mask, hooked up to a C‑Pap machine, to bed. He has tried several masks, beginning with one which just covered the nostrils. He stated that, from day one when he got the nostril mask, it started to have some positive effect, but it wasn't until he purchased a full mask, around late 2004 or early 2005, that he was comfortable at night. He testified:
I found that quite good. It's comfortable to sleep with. But, as I said, it's with the back injury now, that's what's stopped me sleeping. Not so much the – the sleep apnoea. (ts 42)
According to Mr Wallace's evidence, it was in 2006 (ts 94) that his current and most successful mask was tried.
Over the years he has described the impact which sleep apnoea has upon his day‑to‑day life in varying terms.
He testified that, prior to the diagnosis of his condition, he was a bit tired, not so much in the mornings, which were his best time when he could do a few hours work, but in the afternoons when he would start to slow down (ts 35). He said the sleep apnoea never stopped him completing anything that he had started (ts 36). He said it never stopped him working in the mornings, but he felt working in the afternoon might be a bit hard and he thought, though he wasn't sure, that was from the sleep apnoea (ts 36).
In relation to its current condition he stated (ts 41):
It's good. I have it under control. I feel I have it under control. I haven't been back for any more tests but I'm quite happy with the mask I have now at the moment. But unfortunately with the – with the back accident what's happening now is that's waking me up. While I have the mask on I'm waking up with back pain and I have to pull it off and move around the house for a while.
He maintained that it is not his sleep apnoea which currently wakes him up at night, but his back pain. He said:
Because I know it's not. I know it's the pain. I have to take the mask off and move around. (ts 92)
Somewhat inconsistently with the passage quoted a couple of paragraphs above, Mr Wallace denied that what he could do at work was limited by reason of his sleep apnoea. He stated:
There was occasions when I had a nap, but I think everybody can have a nap. (ts 91)
It was put to him in cross‑examination that his sleep apnoea caused him to become tired during the day, but Mr Wallace asserted:
No. Not tired during the day. I was good in the mornings. If you look at the paperwork there, you'll see that the mornings were good. It was the afternoons I started getting a little bit tired. But as I said, they never stopped me doing anything, completing anything. (ts 92)
Finally, in re‑examination, the following exchange took place:
McINTYRE, MR: Yesterday afternoon, Mr Brooksby was asking you about having a nap in the afternoon. How often on average would you have a nap in the afternoon? --- Once in a blue moon.
And is that the present situation? --- No. I haven't – haven't – the wife will tell you I haven't slept for ages. That's what I say. I feel the sleep apnoea machine is doing its job, but … I get tired. Maybe I don't get enough sleep. Like, last night I didn't get a lot of sleep, you know.
Yes. Perhaps for other reasons? --- Just nerves, you know.
SWEENEY DCJ: Sorry. Mr Wallace, when you say 'I haven't slept for ages', you mean you haven't had an afternoon nap for ages? --- Sorry, yes. Sorry, your Honour.
And then a continuation of that question:
… or you haven't slept properly at night for ages? --- Yes, yes.
You haven't had an afternoon nap for ages? --- I haven't had an afternoon nap, your Honour.
McINTYRE, MR: Can you recall the last time you might have had an afternoon nap? --- No. It's so long ago. Even when I had them it was only one or two afternoon naps. (ts 131)
Overall then, Mr Wallace's evidence was that, prior to being diagnosed, the sleep apnoea caused him fatigue, particularly in the afternoons, but he was able to work in the mornings and it never stopped him completing a task. One can infer, however, that it stopped him from commencing tasks in the afternoon.
After diagnosis and once he was using a full mask, from either late 2004 or early 2005 - so well prior to the collision in November 2005 – he says his sleep apnoea was being successfully managed. He denied in his evidence that the symptoms of the sleep apnoea had in fact continued despite wearing the full face mask (ts 94). He also, however, stated that he considered the sleep apnoea symptoms had ceased in about June 2006, which is when he thought the mask was doing a good job (ts 94).
In his work capacity participation assessment report of 7 December 2005, shortly after the collision, Mr Wallace reported that he had been attending a sleep clinic for one year. At that stage he described himself as being on the waiting list for surgery on his right shoulder and also reported 'tiredness, lethargy due to sleep apnoea'. He described his physical limitations as 'restrictions apply to type of work/environment due to right shoulder'.
At that time Mr Wallace's sleep apnoea was described as 'mild/moderate (symptoms), irritating but rarely prevent completion of any activity'. The author also commented that the sleep apnoea was 'temporary' because Mr Wallace was then still waiting for funding on a machine for home use with a mask.
That does not accord at all with Mr Wallace's evidence as to when he got the masks. He did once in evidence state that he had gone to Sir Charles Gairdner Hospital in December 2005, then corrected himself and said it was in December 2004 (ts 35). Clearly by the time of this report, that had already occurred and he told the author of the report he had been going to the clinic for a year. Mr Wallace linked first discussing his sleep apnoea with going to see his doctor shortly after injuring his right shoulder, which occurred in mid‑2004. He did mention that ultimately he purchased a full face mask himself, presumably being impatient of waiting for it to be funded, so there exists some possibly of misinterpretation on the part of the author that Mr Wallace did not at that time have access to some machine, perhaps not his own at that time. In a report of 22 April 2008 Dr Fellows‑Smith, more than two years later, referred to Mr Wallace having tried, in the last month, an improved C‑Pap machine, so I gather then there may have been several machines over the years.
Finally, Mr Wallace reported to the author of that December 2005 assessment 'feeling tired & lethargic & gets most of his activities done in the morning as he feels most tired in the afternoons'.
Mr Wallace agreed that he had reported to Dr Psaila‑Savona in December 2006 that he felt quite good in the morning but by early afternoon tended to feel tired and had had to have a nap, but attributed that to his back condition, although Dr Psaila‑Savona placed that information, together with the information that Mr Wallace sometimes has sleepless nights, under the category of 'past medical history' and appeared to be attributing it to the sleep apnoea. In that same consultation he told Dr Psaila‑Savona that his back was 'good now'. I address that evidence later in more detail. I accept Dr Psaila‑Savona's characterisation of those symptoms in December 2006 as pertaining to the sleep apnoea.
Mr Wallace denied that his shoulder problems and sleep apnoea continued to prevent him carrying out work (ts 101).
In his job capacity assessment report of 7 February 2007 when he was assessed by registered psychologist Ellen Cunningham for Centrelink, Mr Wallace's situation was described in the assessment summary as follows:
Mr Wallace reports a number of physical barreris (sic barriers) that prevent him from participating full-time without exacerbation of his pain. Mr Wallace believes that he has a reduced work obligation due to his age and reports that for the apst (sic past) 12 months he has worked up to 8 hours of volunteer work per week with the Volunteer Tasks Force, which he has enjoyed. This has now finished and he would like to look for other volunteer work that he can do without exacerbating the pain associated with his physical condition. Mr Wallace also does 1 – 2 hours per week in his own Pest Control business. The combination of the two activities Mr Wallace reports is enough for him and any more he feels would make him too tired to do anything else.
Ms Cunningham listed his sleep apnoea as one of those barriers, noting that it had been 'fully investigated and treated through sleep clinic' but that it still 'causes daytime tiredness'.
Of this assessment, Mr Wallace testified that he had jokingly made a comment that he was too old and denied that he held a stance of having a reduced work obligation. I find it unlikely, however, that a qualified psychologist, assessing his work capacity, would have so misunderstood an idle joke. Given that she was assessing him for a pension, his attitude to work was a significant point.
In his treating doctor's report of 27 February 2007, so three weeks later, completed by Dr Mutahar for Centrelink, Mr Wallace's sleep apnoea was described as severe. He was noted to be treated with C‑Pap under the sleep clinic care, but the impact of the sleep apnoea on his ability to function was described as 'severe tiredness in the morning' and no significant improvement was expected.
Mr Wallace denied telling Dr Mutahar that his sleep apnoea caused him severe tiredness in the morning. He said that in 2007 it was his back pain causing him severe tiredness. That misunderstanding between Mr Wallace and Dr Mutahar is quite extraordinary if, in fact, Mr Wallace's sleep apnoea had ceased making him tired since, at the latest, June 2006, or as long ago as early 2005.
In Mr Wallace's job capacity assessment report of 23 March 2007, also completed by Ms Cunningham for Centrelink, Ms Cunningham, after first describing Mr Wallace's chronic pain as an impairment, went on to describe the functional impact of his sleep apnoea as:
Client experiences unpredictable episodes of an uncontrollable urge to go to sleep.
She continued:
Client's sleep apnoea has distressing symptoms. Mainly that the uncontrollable urge to sleep can be overwhelming if not sudden, affecting his ability to participate in any activities particularly in the mornings and it is not safe to drive a vehicle or operate machinery. The episodes will often last up to half an hour or longer if he succumbs to having a sleep. This condition affects the client most days of the year.
Mr Wallace denied that that information had been imparted by him and expressed that the reference to him not being able to drive or operate machinery was taken from a textbook. It is quite possible, given the way she has expressed herself, that Ms Cunningham's comment that it would not be safe for Mr Wallace to operate machinery was her own assessment of the situation, rather than a recitation of Mr Wallace's expressed concerns, but I find it incredible that she would have literally invented or sourced from a textbook that the 'client's sleep apnoea has distressing symptoms'. It is particularly incredible if in fact Mr Wallace at the time suffered no fatigue from his sleep apnoea and had not done so for, at the least, nine months.
Ms Cunningham regarded Mr Wallace's chronic pain as warranting a rating of 20 on the impairment table and his sleep apnoea as warranting a rating of 10. Under her assessment summary Ms Cunningham concluded:
Mr Wallace was diagnosed with sleep apnoea in 2005. This condition causes daily unpredictable episodes of extreme tiredness that are difficult to overcome. This condition is particularly dangerous if Mr Wallace were to be driving or operating machinery. The condition is considered fully treated, stabilised, long term and been rated with 10 points on Table 21 of The Tables For The Assessment Of Work Related Impairment For Disability Support Pension.
Mr Wallace denied that he had reported that his sleep apnoea caused daily unpredictable episodes of extreme tiredness. In cross‑examination, the following exchange (ts 103 ‑ 104) took place:
Mr BROOKSBY: So were you telling the truth to Centrelink when you said it was a significant impairment? --- It's there. Cos no-one has – no-one has said to me, 'Your sleep apnoea's gone'.
Hold on, hold on. Were you telling the truth to Centrelink when you've said it was a significant impairment, which I've already referred you to? --- They've said that. Like they have a textbook. The lady psychiatrist. It wasn't the face to face interview, it was another one two days later.
So you weren't suffering from tiredness and lethargy when you …? --- Not because of the sleep apnoea.
In fairness to Mr Wallace, nowhere in that document has he described his sleep apnoea as a 'significant impairment'. It is not his document and nor was he asked to confirm its contents. But the author's assessment was clearly significantly based upon the information she was given by Mr Wallace and, based on that, she assessed his sleep apnoea as an impairment rated with 10 points on the scale Centrelink employs. No objection was taken to his cross‑examination on the document.
Indeed none of these reports and assessments were documents prepared or vetted by Mr Wallace and I have borne that in mind, but they are documents prepared by professional people for a specific purpose and they must surely have employed some basic care in attempting to accurately capture Mr Wallace's symptoms. I do accept that Mr Wallace is likely to have given the authors information consistent with what they have noted in their reports and inconsistent with his evidence which bears, plainly, upon the reliability of his evidence.
In his report of 10 January 2008 Dr Harper stated that, prior to the collision, Mr Wallace was working two hours per week, doing small jobs only and not working in awkward positions or confined spaces and that 'he limited his work because of fatigue due to sleep apnoea and right shoulder pain'. He stated that Mr Wallace said:
Prior to the accident he says that his health was bad due to sleep apnoea and right shoulder pain.
Mr Wallace was reported to have described his sleep as 'bad' and to have stated:
His left shoulder wakes him at night as does low back pain and his sleep apnoea. This results in tiredness during the day and his need to have a rest during the day.
Mr Wallace denied telling Dr Harper that 'his left shoulder was waking him at night, as does his lower back pain and sleep apnoea'. He said that there were lots of nights he could not sleep with the back pain.
A consistent picture emerges of others gaining the impression from Mr Wallace that his sleep apnoea was a significant problem for him with continued impact on his life and Mr Wallace denying that he had given them any information leading to that impression.
In his report of 22 April 2008 Dr Fellows‑Smith described Mr Wallace's sleep apnoea at the time of its diagnosis as having 'coincided with loss of motivation, poor concentration and memory difficulties affecting his ability to run the new business'. Mr Wallace described 'his energy levels as being reduced by his pre‑accident sleep apnoea by approximately 50%' but then attributed a further reduction in his energy levels down to 'minimal' to 'the back injury'. The doctor continued however:
In the past month however he has been tried on an improved C‑pap machine and he stated that his energy levels have now risen to 40% – 50% of the level prior to developing sleep apnoea when he was working full-time. He also stated that he had fatigue, sleep disturbance averaging 3 - 4 hours sleep per night, irritability, anxiety, depression and low self‑esteem.

Interestingly, Dr Fellows‑Smith described Mr Wallace, prior to the collision, as suffering only 'mild impairment' of his 'employability':
Sleep apnoea and shoulder injuries caused him to reduce his hours however he had switched to setting up a business which required a lot more skill. It is likely that he would have been able to continue in duties that required comparable skill and intellect as those of his pre-injury job but no more than 20 hours prior to his accident.
He was in fact at the time of the collision working a mere two hours per week and nothing like 20 hours per week. There was never a time when Mr Wallace was working full‑time and reduced his hours due to sleep apnoea. He believes that it was the surgery on his left shoulder which triggered his sleep apnoea and he did not have that surgery until well after he had left his employer and commenced his own business while struggling with a left shoulder injury and working very limited hours.
In his second report of 25 February 2010 Dr Fellows‑Smith explained his previous assessment as:
I noted an approximately 50% reduction in motivation described by Mr Wallace subsequent to sleep apnoea diagnosed on or around the 06.01.2003. I noted a modest improvement of approximately 10% in his motivation within one month of being assessed in April 2008 attributable to the improvement in his CPAP machine with the use of a full face mask.
Clearly the reference to the sleep apnoea being diagnosed on 6 January 2003 is quite inconsistent with any other evidence. Dr Fellows‑Smith continued:
When assessed on the 22.02.2010 Mr Wallace stated that although his level of fatigue had improved with the new mask he still had sleep disturbance averaging 4 hours sleep per night.
Dr Fellows‑Smith also commented:
There is a noticeable improvement in Mr Wallace's cognitive functioning possibly related to the management of his sleep apnoea, however he continues to be obviously depressed.
The salient point is that, in April 2008, Mr Wallace was still, on Dr Fellows‑Smith's assessment, dealing with symptoms arising from his sleep apnoea. Allowing that some of his sleep disturbance may have been attributable to chronic pain, the doctor noted that, coinciding with the use of a new mask, Mr Wallace had reduced fatigue, noticeably improved cognitive functioning and modestly improved motivation. I infer that, if the mask had that beneficial effect, his fatigue must still in part have been attributable to sleep apnoea.
Either Mr Wallace was frequently misunderstood and misquoted by those professionals whose job it was to assess and accurately report upon his history and current symptoms, or he is now tending to downplay the impact his sleep apnoea has had, and continues to have, upon his life. I conclude it is the latter.
It is no doubt difficult for a person to dissect and compartmentalise his various medical difficulties when he does suffer chronic pain which gets him down and no doubt makes him tired and fed up. And the overlying process of litigation, the degree of success of which is dependent upon proving that symptoms caused by the collision are debilitating while pre‑existing conditions were less so, might tend to make the most honest of witnesses somewhat suggestible. It is apparent from all of these notes by various people who have met with Mr Wallace that he has, when not giving evidence for the purpose of this litigation, attributed at least a degree of lethargy to his ongoing issue with sleep apnoea and that it did not cease to be a problem at the latest in June 2006.
Irrespective of the collision, I find that Mr Wallace is likely to have suffered some fatigue and reduced motivation for the rest of his life, due to his pre‑existing condition of sleep apnoea. There was no evidence before me to suggest that the condition will be cured. It has been and will presumably continue to be managed with some degree of success by the use of masks and a C‑Pap machine, but I find that, notwithstanding the use of the masks, Mr Wallace will still remain adversely affected by it to a degree.
So prior to the collision, Mr Wallace had two injured shoulders, one of which had been operated on, that operation not having been, according to Mr Wallace (on occasions) a complete success, and the second required surgery, but Mr Wallace was unwilling to undergo that surgery. Those factors alone prevented him, I find, from working in awkward and confined spaces as a pest controller and would have continued to do so for the foreseeable future, even if he had never been in the collision. Added to that, his sleep apnoea caused him fatigue and impacted upon his motivation. He was highly unlikely, I find, to have ever worked more than a few hours a week at best, with some weeks better than others, picking and choosing his jobs and generally operating his business at a loss.
Later, following the collision, Mr Wallace found out that he also suffered from degenerative disease in his neck and lumbar back. That had existed prior to the collision. Mr Wallace denied however that, prior to the collision, he suffered from any symptoms in his neck, or lumbar back. There is no evidence that he did. Although he was a vague and unreliable historian, I accept his evidence on that point, largely as there is no evidence to contradict it. The pre‑existing degenerative disease, therefore, was asymptomatic prior to the collision.
I will discuss the degenerative disease later. Now I turn to the treatment Mr Wallace received following the collision.

Plaintiff's treatment by his general practitioner (and others) from 24 November 2005 to July 2007

Mr Wallace did not seek any treatment following the collision for nine days. He explained that he had expected to be sore following the collision, but also expected it would go away (ts 25). He said he did go to see his doctor when 'my back was getting quite sore at the time. Not so much my back, but my neck, at the time, was bad' (ts 26).
On 24 November 2005, Mr Wallace attended his general practitioner, Dr Mohammad Mutahar, at the Belridge Medical Group in Beldon. This was a general consultation but it is clear that reference was made to the motor vehicle collision, because Dr Mutahar's notes indicate that Mr Wallace was to schedule in an appointment in the next two to three days for a consultation dedicated to his 'MVIT case'. Dr Mutahar explained in evidence that, whenever there was a consultation in relation to the injuries in the collision, he would designate in the notes 'MVIT'. There were of course other consultations over the following two years which were quite unrelated to the collision. Dr Mutahar's notes are the only contemporary history available of the months following the collision.
I infer that Mr Wallace was aware, right from the outset, that the collision was to be the subject of a potential claim. That has bearing on how he would likely have conducted himself during these consultations. It makes it less likely that he would fail to mention any symptoms he was suffering.
The first scheduled MVIT consultation occurred the next day on 25 November 2005. The doctor's notes indicate:
His car was hit from behind, jolte(d) forward and back, at the time just sore left shoulde(r) blade and both wrists.
Mr Wallace complained of pain in the 'left trapz, pain, lower back pain, neck pain'. On examination, Dr Mutahar found that Mr Wallace's neck showed full range of movement with no neurological signs, that there was no abnormality detected in relation to his shoulders and his spine was normal and not tender and was showing no neurological signs. Dr Mutahar wrote him a script for Voltaren tablets, an anti‑inflammatory, referred him to a physiotherapist and planned to review him in two weeks time.
Dr Mutahar testified that, at that time, because the injury was very recent, he assumed that the reported pain was due to muscle injuries and confirmed his diagnosis at the time was of soft tissue injury. He said it was only later that x-rays revealed degenerative changes.
As to his method of conducting an examination (as opposed to reporting the patient's self‑report of pain) Dr Mutahar explained that he would examine his patient thoroughly, conducting a full orthopaedic and neurological examination, testing for a full range of movements - meaning lateral, forward and backward movement - and any evidence of any abnormalities. He would also palpate various areas and conduct a neurological examination testing the patient's reflexes and loss of power and any loss of sensation or movement. He explained that this method is to determine muscle injury, but is not sufficient to diagnose degenerative disease, which can only be diagnosed from x‑rays (ts 231).
As to this method, Dr Psaila-Savona, consultant occupational physician, said that palpation is a rough indication of the amount of pain that the patient is suffering. He explained that the back contains both large and small muscles and that the smaller muscles may be injured yet not be painful to palpation. When asked whether it was still possible for a patient to have symptoms of pain and yet also have a full range of movement, Dr Psaila‑Savona explained:
Oh, pain usually limits or restricts the range of movement. On the other hand, the restricted range of movement is not always an indication of a pain. But if a patient has pain, usually there is restriction of the range of movement. (ts 311)
He agreed that the pain may 'come and go' but said 'when it's present, there is usually a restriction. When there is – when it is not present, usually there is no restriction' (ts 311). Mr Wallace was regarded by Dr Mutahar as suffering no restriction of movement and not being tender to palpation. That could still be consistent with smaller muscles being injured and obviously did not prevent the doctor from diagnosing a soft tissue injury. It does suggest however that the injury and symptoms were not so severe as to restrict range of movement.
Mr Wallace, in evidence, denied that he had a full range of movement on his first consultation and said he remembered being sore (ts 85). Clearly Dr Mutahar accepted that he was experiencing pain. Mr Wallace's reliability on the details of his symptoms however is so poor in other respects that I am far more inclined to trust Dr Mutahar's clinical assessment than Mr Wallace's recall.
On 7 December 2005, Mr Wallace signed a Work Capacity/Participation Assessment Report for Centrelink, the purpose of which appears to have been to enable Centrelink to assess his work capacity and eligibility for benefits. There is absolutely no mention in the assessment of either his neck or lower back pain. The conditions noted in the report are his right shoulder pain and sleep apnoea. In answer to the question 'does the customer have any OTHER conditions not identified in the documentation presented for this assessment?' the author has ticked 'No'.
When Mr Wallace was asked about this in cross‑examination (ts 82 ‑ 83) and when it was put to him that there was no claim in the Centrelink document of 'any incapacity consequential upon your motor vehicle accident' Mr Wallace testified that this was just after the accident and he did not yet have the x‑ray of February 2006 and 'I didn't know then my back was that bad. I didn't get x‑rays'. I have no difficulty in accepting that explanation. It is consistent with his treating doctor's general view that these were soft tissue injuries which would settle down. It is also consistent with symptoms which were not severe and were expected to respond positively to treatment.
Mr Wallace next consulted Dr Mutahar on 8 December 2005, at which time Mr Wallace was seeing the physiotherapist every second day, of itself consistent with Dr Mutahar's having accepted that Mr Wallace was in pain and was injured. Dr Mutahar noted that Mr Wallace's neck pain was improving markedly, that he had full range of movement, no localised tenderness and no neurological signs. There was no specific reference to his lower back pain.
On 18 January 2006, two months after the collision, Dr Mutahar again saw Mr Wallace and noted that he was 'doing well' and 'seeing the physio with good recovery but still neck and back pain persisted'. On examination his spine generally and his neck showed full range of movement with no localised tenderness and no neurological signs. The doctor recommended he continue the conservative treatment regime with the physiotherapist. Hydrotherapy was also recommended.
As to his back pain, Mr Wallace gave evidence that was inconsistent and rather difficult to follow.
He said following the collision, his back was a bit sore but he thought it would go away. He said when he did go and see Dr Mutahar that was because
My back was getting quite sore at the time. Not so much my back, but my neck, at the time, was bad' (ts 26). He also said 'it didn't – it didn't – it came on gradually. When I had the accident – was it 2000 or – no, it's gone. Well, the original accident, 2005 – from the accident it was, the neck was the worst part. The back came in a little later (ts 28).
Still on the same theme, he testified that following the collision:
It started off more with the neck. The back was probably there but the neck took over. I would feel the pain. There was a lot more pain in my neck and that used to flare up. Then later on my back kicked in and … ' (ts 43).
When asked how much later on, he replied (ts 43):
Because my doctor sent me for a CT scan for my lower lumber on – I can't remember when … and the reason he sent me was because my – I felt my lower back was quite sore'. He said his back pain varied and used to flare up to, at times, a level of 10 out of 10 such that he could not sleep at night but that it was up and down (ts 43). He said that the simplest thing would make it flare up (ts 43).
Given that Mr Wallace described his neck pain later to Dr Psaila‑Savona as often being at a level of 2 out of 10, I have no doubt that pain at a level of 10 out of 10 would have been mentioned shortly after it occurred.
That lumbar back scan Mr Wallace mentioned did not take place until December 2006, a year after the collision.
He also testified that when he had the collision in November:
I probably had lower back pain but it was not as bad and the neck pain was quite sore, and the physiotherapist was treating me just for neck. And I asked – told him about my back and he said he couldn't treat it. That he was only for treating … (ts 44).
At that point objection was taken to hearsay evidence concerning the physiotherapy treatment. Mr Wallace also said that that's why he went back to Dr Mutahar and so he sent him off for a scan on his lower back in December. There were only two scans – one in February 2006 on his neck and one in December 2006 for his lower back. It appears to be the later of the two he was referring to.
But then, when asked when he first recalled suffering back pain, Mr Wallace testified 'it's hard to remember. I would say maybe three months after – into treatment for – my neck' (ts 45). That is quite inconsistent with the suggestion that it first emerged near the time of the CT scan for the lumbar back.
Again Mr Wallace said that, following the collision:
The lower back was not an issue at the time, even though it was sore, but – even with the physiotherapist, he just done my neck area. And I told him – I used to speak to the therapist about my back and he said that he could only do – work on my neck. That's all he was contracted to do (ts 26).
According to Dr Mutahar, Mr Wallace complained of lower back pain at the outset in the first consultation. He did not send Mr Wallace off for a scan until mid-February 2006 and that was due to ongoing neck pain. That was three months after the collision and probably some two and a half months after the commencement of the physiotherapy. Later in cross‑examination (ts 107) Mr Wallace became quite flustered and said he did not think it was three months before the back pain emerged and said that he could not recall what he had earlier said in evidence. He said he cannot know what injuries he sustained in the collision and can only say that he was sore.
It really is quite impossible to rely upon such inconsistent evidence as to the sequence of events. All I can draw from it is a sense in Mr Wallace that it was his neck which initially caused him the memorable pain and he is clear that his neck was troubling him from the outset, whereas he is unclear on the extent to which his lower back was causing him any troubling pain and when that became a real issue – except to say it was later, perhaps a long time later and perhaps as late as December 2006 when he was sent off for the scan.
Dr Mutahar's notes, which are contemporaneous, are more consistent with Mr Wallace experiencing some intermittent lumbar pain, with the first complaint of such pain being made in the first consultation, than with back pain emerging only three months into the physiotherapy. I find that Mr Wallace did experience and did complain of lower back pain in the couple of weeks following the collision. The back pain did not, however, attract the same level of attention as the neck pain. Nor is there any suggestion that the back pain was anything other than mild at that time. That is consistent with Mr Wallace's evidence as to the neck being the initial issue.
No testimony or reports from any physiotherapist are before me. On occasion during his evidence, Mr Wallace attempted to give hearsay evidence of his physiotherapist's comments to him, but this was rightly objected to and I have disregarded any such comments.
Certainly by 3 February 2006, Dr Mutahar's prognosis was one of optimism. In his report of that date he diagnosed soft tissue injuries to Mr Wallace's neck and lower back but stated:
The progress seems to be excellent and there is no likelihood of any permanent disabilities.
Dr Mutahar explained in evidence that these comments were made against the backdrop that his patient was already effectively unemployed due to his shoulder injuries and sleep apnoea (ts 211). He also noted that the injury was not an aggravation of a pre‑existing injury. He considered it likely Mr Wallace would be attending physiotherapy for another six to eight weeks. This was prior, however, to the doctor seeing a scan of his patient's neck.
On 16 February 2006, Mr Wallace again saw Dr Mutahar. On examination, Mr Wallace's neck showed a full range of movement, no localised tenderness and no neurological signs. The doctor requested a CT (computerised tomography) scan in relation to Mr Wallace's neck, however, because of 'ongoing neck pain'. The doctor noted that there was 'no further neck improvement, back markedly improved'. This marked improvement in the back was three months post‑collision. It is unlikely that Dr Mutahar would have made such a note if not for Mr Wallace reporting such positive progress.
On 20 February 2006, the results of the scan were back and it was then discovered that Mr Wallace was suffering from degenerative changes to his cervical spine, or neck.
Dr Psaila-Savona explained:
It is accepted as being a diseased condition. It is a degenerative disease which, in layman's terms, really means that the patient is getting older. There is a progression of getting older in the spine, either in the neck or in the back.
Mr Nicholas Anastas, orthopaedic surgeon, explained in his evidence that degenerative changes generally are the wearing out of the cartilage between the facet joints in the spine. The gap in a facet joint is lined with cartilage. As the cartilage is worn down through age and wear and tear, the gap in the joint becomes smaller. Degenerative disease is this process. Degenerative disease can therefore be associated with narrowing of the disc space, where the joint becomes narrower than normal and can also be associated with 'lipping', which is where little spurs, called osteophytes, come off from the side of the joint. In some cases these amount to small pieces of bone actually coming away, but in Mr Wallace's case they were outgrowths or spurs.

In his second report of 25 February 2010 the doctor noted that Mr Wallace's pre‑accident employment capacity was two to three hours per day as a pest‑controller due to a combination of sleep apnoea and right shoulder pain. It is unclear whether that is information he only obtained at the time of preparing the second report which, unlike the first, specifically summarises the medical opinions of Dr Psaila‑Savona, Dr Harper, Mr Narula, Professor Stokes and Mr Anastas and Dr Mutahar, or not. If he did have that information at the time of the first report, it makes all the more inexplicable his initial opinion that implied some ability to work up to 20 hours per week. In any event however the information is still wrong. Mr Wallace was working two hours per week, not per day.
In cross‑examination Dr Fellows‑Smith agreed (ts 175) that he had always been aware that Mr Wallace had been 'unable to carry out his pest control work in confined spaces prior to the motor vehicle accident because of his shoulder problems' but said that he understood that 'that pain came and went and it wasn't an absolute problem; that there were times when he was capable of performing those duties'. That pain was sufficient, however, coupled with the sleep apnoea, to have reduced Mr Wallace's hours of work to a mere two hours per week.
Dr Fellows‑Smith's opinion can only be as sound as the factual foundation it is based upon.
Having said that, an inaccurate history does not necessarily mean that his diagnosis that Mr Wallace was suffering from depression should be rejected. The genesis of that depression is a different issue, but Dr Fellows‑Smith is a qualified psychiatrist of some 20 years experience who assessed Mr Wallace based, obviously, on his self‑report, but also on the doctor's own clinical experience.
The defendant submits that the doctor's presentation as a witness was 'somewhat unusual' and indeed it was. He was somewhat verbose, very intense and defensive in cross‑examination.
Notwithstanding that, however, there is no evidence contradicting his expert opinion that Mr Wallace was suffering from depression. Nor do I find that these symptoms were a recent invention on the part of Mr Wallace, having been sent by his lawyers to a psychiatrist in the knowledge this might support his claim.
Dr Harper stated in his report of 10 January 2008 that Mr Wallace considered himself to be 'a bit depressed because he misses work and he feels that he will not get better. His energy level fluctuates'. In his later report of 8 March 2010, Dr Harper reported 'on examination Kenneth Wallace appeared depressed'.
In his report of 28 October 2008, Dr Psaila‑Savona commented 'Mr Wallace appeared to be anxious and depressed at the time of my assessment and he was very teary towards the end. Although I am not a psychiatrist, it would appear to me that he continues to be depressed, possibly because of the pain, as well as his inability to return to employment'.
Finally, while Professor Stokes did not himself assess Mr Wallace as being depressed, in his final report of 9 March 2010 he commented 'I note from Dr James Fellows‑Smith, that this man is significantly depressed and I can understand that in view of the fact that there has been significant change to his working capacity'.
And I cannot but agree with Professor Stokes. Leaving to one side the issue of the extent to which the collision has contributed to this depression, it is hardly surprising or incredible to suggest that Mr Wallace suffers from depression. Although I have generally found Mr Wallace to be an unreliable witness, the fact is he is in an obviously depressing situation. He has difficulties with both shoulders, he has sleep apnoea, he has been told that he has moderate to severe degenerative disease in his neck and lumbar back, he has suffered chronic neck pain of varying degrees and also suffers chronic back pain. He used to be employed and he is now, realistically, unemployable. Added to that, his domestic situation is that his wife is on a disability pension herself and they have largely been surviving by way of disability pensions. And he has had the likely added stress of ongoing litigation.
Although Dr Mutahar, his general practitioner, did not note any signs of depression, I consider there are likely to be various reasons for that. Firstly, Dr Mutahar is not a qualified psychiatrist and, in the absence of specific complaint from his patient or overt and concerning presentation, is unlikely to have dwelt on the issue in the context of such a claim. Unless specifically asked, a patient may not volunteer symptoms relating solely to mood and emotion to a general practitioner. Secondly, Dr Mutahar is working within the context of a general practice and is unlikely to have spent the sort of time that may be required with some patients to elicit such symptoms. Thirdly, the focus of Dr Mutahar's involvement with his patient was managing his pain symptoms, a very different focus from that of Dr Fellows‑Smith. And, finally, the passage of time and the eventual worsening of Mr Wallace's condition by way of his back pain increasing may well have caused his depressive condition to worsen. Dr Mutahar was seeing him in the early days following the collision when there was an expectation that the injuries would settle down but, over time, Mr Wallace was informed that he was suffering from degenerative disease in, first, his neck and, then, his lumbar spine and that is likely to have had some psychological impact on him as well.
I accept Dr Fellows-Smith's conclusion that Mr Wallace does suffer from depression. I do not accept (nor did Dr Fellows‑Smith contend) that that depression was caused solely by the collision and its aftermath. Dr Fellows‑Smith accepted that some of the pre‑collision symptoms contributed to the depression, but also considered that it was really the total loss of employability that brought on the depression.
I do not accept that the collision caused Mr Wallace to become unemployable, or produced in him a state of chronic pain that he was not already in, pre‑collision.
Prior to the collision, very significant adverse events had occurred in his life, namely significant injury to both shoulders, significant reduction in his work hours as a result, total loss of his ability to earn any sort of income and sleep apnoea, an energy‑sapping condition which also resulted in him sleeping in a separate bed to his wife and the reduction of his financial circumstances to both he and his wife living on a disability pension.
Those circumstances were not going to change. I consider those factors to be the obvious causes of his depression.
I do accept however, on the balance of probabilities, that the neck pain and back pain resulting from the soft tissue injuries added to an already depressing situation and added to his sense of hopelessness and pessimism.
So, no doubt, did the eventual news that he was suffering from a degenerative condition in his neck and spine.
I have already found that the degenerative condition in his lumbar spine did, in its own right, begin to produce symptoms of pain unrelated to the collision and I consider chronic and increasing back pain from that point on is also likely to have added to his state of depression. That is not attributable to the collision.
The fact is the collision was one more event in a series of misfortunes that Mr Wallace suffered and, while the symptoms following the collision no doubt added to and compounded his depression, they are only one small part of an overall picture. Because I consider his pre‑collision state to have reduced him to a state of minimal employability, I do not consider that any contribution of the collision to Mr Wallace's depression has produced any further economic loss. It is however an aspect of his general pain and suffering that can be compensated, but within the context that the collision was only a contributor to the existing situation.
I am unable to accept Dr Fellows‑Smith's characterisation of the degree of permanent psychiatric impairment solely related to the collision as 10%, as I consider his assessment is based on a quite inaccurate history and some understanding that Mr Wallace retained an ability to work up to 20 hours a week prior to the collision.
I accept that the prognosis for Mr Wallace' depression is poor, caused by the chronic nature of his situation and also his unwillingness to accept medication. When Dr Fellows‑Smith again saw Mr Wallace on 22 February 2010 he reported that Mr Wallace's presentation
Was largely unchanged from my previous observation … his mood was obviously mildly depressed and there was some depressive mental set particularly low self‑esteem.
Overall the doctor's opinion remained the same. He considered there appeared to be some mild improvement to Mr Wallace's level of concentration, but he still considered him to be totally impaired and unlikely to ever return to employment.
Overall the doctor concluded that while there was a noticeable improvement in Mr Wallace's cognitive functioning, possibly related to the management of his sleep apnoea, he continued to be obviously depressed. As that depression was linked to chronic pain, he considered the depressive symptoms were likely to be permanent. I accept that assessment.

Assessment of damages

(a) General damages

Mr Wallace claims general damages for pain and suffering, loss of enjoyment of life and loss of amenities.
As to his current symptoms relating to his neck, Mr Wallace testified that at times the pain he experiences can be up to 8 out of 10 but it 'varies up and down' (ts 29). He said he is unable to turn his neck sharply and has to turn it slowly because sharp movement brings a lot of pain (ts 29). The pain in his neck has been chronic and it has deteriorated over time, giving mostly only mild pain when he saw Dr Psaila‑Savona in late 2006, but now giving more serious pain, consistent with the degenerative condition progressing.
He also testified that he has a fuzzy feeling in his head that he likens to a hangover: 'It's like a fuzz in my head, like a hangover or a very mild headache' (ts 29). He said it is just in the front of his head.
He is also entitled to damages for the pain suffered in his lower back following the collision until that injury resolved itself in around May 2006. It had been, during those months, causing only mild pain.
Apart from physical symptoms, Mr Wallace testified that he has lost a lot of interest in everything and is not happy with himself and suffers terrible mood swings and seems to be arguing with his wife over silly things.
He said he had enjoyed work (ts 46 ‑ 47). He said that prior to the collision he had always been out and about doing something and had enjoyed walking for miles but, since the collision:
Now I just do short walks with the dog … I don't have a day to day life anymore. Just boredom. I just sit around … there's a lot I can't do. I've always – I always remember that was – not a dream, but I always wanted to play bowls when I got older; visualised myself enjoying myself but it's – I don't mix with people anymore. There's quite a lot that the accident has done to me that has changed me (ts 47).
He said his walks are limited now to about a 10 minute walk with a small dog, which he attributed to his back injury (ts 47). He said he does a slight amount of gardening.
He said he just does not seem to be 'in the humour' of going out for a meal. He said that's 'not so much physical you'd say, but it's the mood I'm in. I don't be in – I don't be in – in the mood of going out' (ts 50). He also testified that his social life has reduced and that when he was working as a pest controller he used to be friendly with colleagues and would also attend job related displays, but he now has only two or three friends that he sees. He said that 'when I was working I felt that, even though I was only doing small amounts of work, I just felt I was part of the world, part of the community. But now I'm doing nothing, I just – it just doesn't feel right' (ts 50). He also said that his sex life had reduced from little prior to the collision to nothing after the collision. He and his wife were sleeping in separate beds by the time he injured his right shoulder in 2004, largely, I understand, because of his chronic sleep apnoea.
For the reasons I have detailed earlier, I find that he suffered a mild soft-tissue injury to his neck which exacerbated a pre‑existing degenerative condition. His neck pain is chronic and it is impossible to separate the symptoms caused by the initial injury from the exacerbation of the degenerative disease. He is entitled to be compensated on the basis that the collision has been the cause of both.
I find that he also suffered a mild soft tissue injury to the lower back which exacerbated the pre‑existing degenerative condition in that area of his spine. That injury and resultant exacerbation resolved itself by mid‑2006. His severe degenerative disease now means however that he will, from time to time, exacerbate that condition and it will take little by way of physical exertion to do so. He is entitled to be compensated for the initial soft-tissue injury and exacerbation of the degenerative condition between the collision and the time at which it resolved itself. He is not entitled to be compensated for the symptoms later resulting from the degenerative disease taking its course.
I find that he also suffered a very short-lived exacerbation of his left shoulder pain immediately following the collision that settled almost immediately back to his pre‑collision state.
I find that he suffers from depression and that the pain caused by the collision, both to his lower back until May 2006 and his chronic pain in his neck has contributed to that condition.
Assessing the impact these injuries have had, and continue to have, on his life has involved some sifting of his evidence to distinguish between the impact of the collision and the impact of the degenerative condition in his lower back which, over time, has progressed to the point where he has had to give up the little amount of work he was doing, in turn the dominant cause of his depression. The lower back condition is also, I am satisfied, the dominant cause of his deteriorated sex life and his deteriorating ability to do housework and gardening and enjoy long walks. That accords with Mr Wallace's own evidence and that of his wife, which I will mention shortly.
These injuries being suffered as a result of a motor vehicle accident, any award I make for general damages is subject to s 3C Motor Vehicle (Third Party Insurance) Amendment Act 1994 by which Parliament has limited the amount of damages which can be awarded. The maximum amount of damages which can be awarded under this head is currently $337,000 for a 'most extreme case', which is not a defined term but which would contemplate a state of quadriplegia or other utterly debilitating state. I have to determine what percentage of a most extreme case is represented by Mr Wallace's injuries for which he is entitled to be compensated. His overall condition is, of course, worse than the percentage represented by those injuries which I have found are attributable to the collision.
Overall I assess this case as falling at no more than 5% of the most extreme case, resulting in a figure of $16,850. By the operation of s 3C, which further limits the amount to be awarded by deducting a base figure of, currently, $17,000, the figure awarded does not cross the threshold and, accordingly, the amount to be awarded under this head is nil.

(b) Loss of past income and future earning capacity

For the reasons included earlier in this judgment, I find that, by reason of his shoulder injuries and sleep apnoea, Mr Wallace was incapable of working prior to the collision to such an extent that he was incapable of producing any income. While he did have a limited capacity to work and was working minimal hours, about two hours per week, and had been working very limited hours for some years prior to the collision, the nature of his work was such that the cost of materials and overheads meant his business constantly operated at a loss and so was not actually productive of income. He was on the disability pension.
He continued to work at this same very reduced level for two years after the collision. He did so notwithstanding the neck and back injuries.
In December 2007 he finally gave up altogether, a result of his overall physical and mental state. By then his severe degenerative disease in his lower back was operating in its own right to produce chronic back pain and referred leg pain and his condition had deteriorated. His neck still troubled him and he was depressed and he still had shoulder problems and sleep apnoea, though it was being managed.
Although I find that the collision and the injuries suffered as a result of it, including the depression, contributed to his eventual decision to stop work entirely (apart from his voluntary work), that decision was not productive of any economic loss. And really it was the advancing back condition that was the predominant cause of the loss of his last vestige of work capacity.
This Court can only award damages for loss of earning capacity where that loss has been productive of financial loss: Graham v Baker (1961) 106 CLR 340 per Dixon CJ, Kitto J and Taylor J at 347. Accordingly I make no award of damages for past loss of earnings, nor future loss of earnings.

Past gratuitous services and future gratuitous services

The plaintiff claims an amount of five hours per week by way of past gratuitous services rendered by his wife, his son Kenneth and his son Kieran.
Mr Wallace testified that he used to do more household and domestic chores, but his wife does most of it now.
In relation to the extent to which his wife rendered him assistance, he was asked 'apart from turning mattresses, what other things does she do that you would normally do?' to which he replied 'she does everything. She does everything' (ts 54).
In cross‑examination he agreed that his wife is on a disability support pension because she suffers from repetitive strain injury in both of her wrists and hands but maintained that she 'does quite a lot around the house' (ts 55).
The following exchange took place (ts 124):
MR BROOKSBY: In terms of cooking and housekeeping, your wife does that? --- Yeah, she's a great cook.
And she's always done that? --- I used to give her a hand at an early stage when her hands were real sore. That was going back to 2001.
But now she's better than she was and she does it all? --- She does most of the stuff, yeah.
He said he does some dishwashing, but basically his wife takes over those tasks and does not let him do them.
He said he is capable of hanging smaller items on the clothes line, but is not capable of hanging heavier items such as quilts (ts 49). He agreed in cross‑examination that his inability to hang heavy items on the line or bring them out to the line was because of his right shoulder 'and now it's the back also. So you can't say I just blame the shoulder' (ts 129).
He testified that he has to get his wife to put his socks and shoes on and maybe tie his laces, although he does not often wear lace shoes (ts 49). In cross‑examination he agreed that he normally wears a kind of slipper and that, other than an inability to do up laces, he is capable of dressing and showering (ts 125).
He said that he can get into a kneeling position, but only for short periods, and he has also taken chances and bent down into a squatting position but that he cannot lift anything from a squatting position (ts 49).
He said he can drive a car, but not for long distances, maybe an hour or so, but cannot turn his neck sharply – 'if I turn it fast, it would crack and would be sore' (ts 48).
He testified that he does very little shopping with his wife and rarely enters a shopping centre, because he finds the concrete in shopping centres makes his back sore and he also has difficulty walking the distances (ts 49). He testified, however, that he was not in the habit of assisting his wife to do the shopping prior to the collision, but did used to pick her up and take her and the shopping home. In cross‑examination he agreed that he could drive down to the shops and that on occasions he could walk to the pub or drive to the pub to have a beer (ts 126).

When asked in cross‑examination to specify what housework or yard work his wife did that he properly regarded as his job, Mr Wallace nominated gardening and said that his wife was never much of a gardener but she would move small pots and small things, because he had difficulty bending down to pick them up (ts 128). He said he basically did very little in the garden and agreed that his wife also probably did little in the garden.
He said he could do sweeping by way of tidying up the garden and could use a dog's pooper‑scooper (ts 128) but was unable to use a normal household broom (ts 128, 132). He said he will sweep up around the house such that he does not have to bend over, but his sons do the heavier work for him. By way of example, he said that his son had fixed two broken skylights for him (ts 47) because he now could not think about going up on the roof with his back (ts 48). He said he could not climb a ladder because his back would be quite sore (ts 48). He said he now is reduced to pottering around the garden, just doing odd bits and he continues to do his voluntary work, which he enjoys.
His evidence as to the practical assistance he received from his sons was very minimal. He testified
It's very hard to work out – worked out between my wife and my two sons. It was about five hours a week. That's what we worked out roughly, you know, between the three of them (ts 54).
That bald assertion is obviously the basis of the five hour per week claim.
When asked what sort of things his sons did for him he testified:
Kieran, that's the chap that's up north, he – he's good with my car. He'd wash my car, he'd service the car, change the oil, whatnot. Change a wheel. And between the two of them, they might do a bit of gardening for me, like mow the lawn, clean the pool. Ken done the roof for me. Just odds and ends and turn the mattress with Marian and that, you know. Just odds and ends that I just can't do myself (ts 54).
That was the whole of his evidence on that point. There is no evidence as to whether he was servicing his own car prior to the collision or not.
Marian Wallace testified that, of her five sons, only one currently lives with her and her husband and he works away in the mines, three weeks on and one week off (ts 134). She has been on a disability pension since late 2001 by reason of repetitive strain injury in both hands and wrists. She had previously been employed as a cleaner and trolley handler (ts 134). She testified that, at that time, her husband was in good health and assisted with household chores, such as doing dishes and hanging out washing and the daily chores that needed to be done in the house. He also drove her anywhere she needed to go because she did not drive (ts 135). She continued doing the cooking at that time, so clearly she has always done the cooking. She said that her condition did improve, but activity would aggravate it (ts 135).
Mrs Wallace testified that, once her husband had an operation on his left shoulder in early 2003, she had to do 'everything' until about six or seven months after the operation, when he began to improve. When he injured his right shoulder in 2004, she again had to do everything around the house until early 2005 when he began to improve and they both did domestic chores (ts 136).
After the collision, she testified,
He had a bit of pain, so I probably did more stuff, but as time went on his back got worse and worse, so now I sort of nearly do everything. Now and again he'll do something, if - because we're at home all the time, if we want - if - we don't have to do things if - if we don't want to. So it just depends on the day. But I do most of the stuff now (ts 136).
She testified that she would tie her husband's laces if he wore shoes with laces and put on his socks for him and cut his nails (ts 136).
She said that she does all of the washing and her husband might give her a hand if he has a good day, but that 95% of the time she does it. She said her son Kenny would come around if they needed him to do something such as move pottery, or get up on the roof if anything needs cleaning up there, or if the lawn needs mowing (ts 136 ‑ 137).
She said that her son Kieran would help with the car and, when he was home, if they needed him to help with something he would do it (ts 137).
When asked if she was able to put any sort of daily or weekly number on the hours that she performed tasks that he otherwise would have done before his condition deteriorated, she said 'two or three hours, maybe more, it depends. Because we're there all the time, I'll just do what needs to be doing, you know, so' (ts 137).
In cross‑examination she said that she made the beds, but agreed that she had always made the beds, except when her wrists were bad (ts 138). She also agreed that, prior to her problem with her wrists, she regarded the house has being her 'territory' (ts 142).
In cross‑examination she explained that when she referred to his condition getting worse, she was referring to his back (ts 140).
Kenneth Wallace Jr testified that, following the collision, he was 'generally doing a little bit more things around the house for my dad' (ts 143). He said his father was very active but, since the collision, he noticed he had to do more things around the house for them (ts 143). He explained he only lives a short distance from his parents' house and generally calls in every second day to do little things around the house that need to be done. By way of example, he referred to mowing the lawn, cleaning the pools, maintenance around the house, moving any items that needed to be moved, working in the back garden and any heavy maintenance and also referred to having secured the roof in a recent storm. He said that there had been some trees damaged during a storm and the trees had been lopped and he had moved the lopped trees out to the front of the house so that they could be picked up (ts 144). He said that he would move furniture around the house when his mother was cleaning because she was 'a pretty compulsive cleaner' and that he would turn the mattresses over when they needed to be turned (ts 143). He also said that he had picked his mother up from shopping when she had a big load (ts 144).
He said that his father was not really able to contribute to any of those sorts of activities and that, from what he had seen, his father was 'doing a far lot less than what he would normally do. He wouldn't - he would never ring me and ask me to come and do anything. It would be usually the other way around' (ts 144).
As to how long per week he might spend doing such tasks he said 'look, it can vary from an hour to two hours in a week. Sometimes it could even be more, or less' (ts 144).
Mr Wallace Jr also understood that at least one of his father's shoulders was injured in the collision and commented 'from the motor vehicle accident he's had, I'm pretty sure that's what the shoulder is from' (ts 145). In cross‑examination he agreed that the problems that he had perceived his father to have related to arms and shoulder problems (ts 145).
The evidence from Mrs Wallace and Mr Wallace Jr was vague in some respects and generalised, but that is not too surprising in the circumstances. They were describing the typical mundane tasks that people do on a regular basis, without obviously having made contemporaneous notes or kept timesheets.
I considered each to be an honest witness and have no difficulty in accepting their evidence.
I also accept Mr Wallace's evidence as to his physical limitations around the house in his current state.
The difficulty in the claim for gratuitous services however is that, on Mr Wallace's own evidence, the emphasis is very much on his back condition, which has deteriorated over time, as the cause of his inability to perform these various heavy tasks or tasks requiring bending. Mrs Wallace's evidence is consistent and paints a picture of a man deteriorating over time.
And of course he also has a right shoulder injury which was never treated. Clearly Mr Wallace Junior has a misunderstanding as to where the shoulder injury came from, but his perception of the right shoulder as giving rise to Mr Wallace's physical limitations does tend to be consistent with the findings I have reached concerning the right shoulder. That can only be based on things Mr Wallace has said. I do not give it much weight and, of course, Mr Wallace Jr is not a doctor, but it is broadly consistent with the overall picture of a person who is both debilitated by a right shoulder injury and a worsening back condition. The left shoulder is also not in perfect condition.
I accept that chronic pain in the neck may also cause physical limitations in doing housework and that it also causes difficulty in driving if there is a need to turn the neck sharply, but there is no clear evidence before me as to just what the housework limitations might be, or how to separate them out from the other conditions which relate to the back, leg and shoulder which have not been caused by the collision. I also find that many of the household services rendered by Mrs Wallace would have been rendered in any event as she felt more able to perform domestic tasks such as cooking, washing dishes and cleaning.
I consider there to be no cogent evidence as to gratuitous services performed in the months following the collision during the period of time that Mr Wallace was still working and was suffering both neck and back symptoms attributable to the collision.
I consider the contribution of the more chronic neck condition in the overall equation is not proven and, even if it had been, the overall sum to be allowed for gratuitous services past and future on account of the ongoing neck condition does not cross the threshold for gratuitous services set down by s 3D Motor Vehicle (Third Party Insurance) Amendment Act 1994 by which Parliament has decreed that, if the amount to be awarded for gratuitous services past and present does not exceed a prescribed amount, currently $6,000, then no award can be made. Accordingly, I make no award under this heading.

(d) Past and future travelling expenses

Past travelling expenses are agreed between the parties at $350. Future travelling expenses are estimated at $200. Notwithstanding that I have made findings that the back injury now does not relate to the collision, the neck condition and travel to possible psychiatric sessions (given that Mr Wallace has difficulty driving and his wife also does not drive) justify allowing this small sum. I allow future travelling expenses at $200.

(e) Past treatment expenses

These have been agreed between the parties at $131.60 and past pharmaceutical costs are agreed at $34.25 and accordingly I award $165.85 under this head.

(f) Future medical treatment

The plaintiff's claim is for $5,000 for future medical treatment with no basis specified for that amount.
There was little specific evidence about what, if any treatment, might be afforded Mr Wallace in the future. Dr Fellows‑Smith recommended medication for his depression, which he is unwilling to take and a series of 45 minute sessions with a psychiatrist once a month for a year.
As to the neck condition, Dr Mutahar took the view that physiotherapy would achieve nothing given that it was the result of progressive degenerative disease. Dr Psaila‑Savona commented in his report of 28 October 2008 that no medical treatment apart from symptomatic relief would assist Mr Wallace because 'degenerative conditions are not amenable to treatment'. Mr Anastas in his report of 22 September 2009 recommended that Mr Wallace perform appropriate exercises independently and unsupervised at home. Dr Harper in his first report of 10 January 2008 recommended regular exercise particularly swimming and avoidance of aggravating factors. That of course included recommendations for the back condition and Mr Wallace's ability to swim is probably hampered by his right shoulder condition. In his report of 29 May 2008, Professor Stokes said 'I do not believe there is anything further that can be offered him until his right shoulder is attended to and at that stage when that is satisfactory he should commence a swimming programme.'
In essence then, there is not much that can be done in relation to the neck, but I will make some modest allowance for analgesics and perhaps some visits to a physiotherapist to enquire whether there are exercises which might be done at home to assist the neck. And Mr Wallace would benefit from some psychiatric sessions. The overall amount cannot be much, however. Doing the best I can to estimate the cost of these things and allowing that the collision is not the dominant cause of the depression I allow a sum of $1,500 for future treatment.

Conclusion

I award damages as follows:

Past and future travelling expenses  $   550.00
Past treatment expenses  $   165.85
Future treatment  $1,500.00

Total award $2,215.85