Watson v Fung - [2005] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WATSON -v- FUNG & ORS [2005] WADC 168

CORAM: COMMISSIONER ARCHER

HEARD: 4-8, 28 & 29 APRIL 2005

DELIVERED : 31 AUGUST 2005

FILE NO/S: CIV 21 of 2004

BETWEEN: PETER JOHN WATSON
Plaintiff
AND
KWOK WING FUNG
First Defendant
TERESA PARASZCZYN
Second Defendant
DERRIS LOVELL
Third Defendant
JILLIAN AMY WATSON
Fourth Defendant

Catchwords:

Damages - Assessment - Personal injuries - Multiple motor vehicle accidents - Preexisting condition - Psychiatric disability - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment against the first defendant in the sum of $282,037
Judgment against the second defendant in the sum of $100
Judgment against the third defendant in the sum of $100
Judgment against the fourth defendant in the sum of $100

Representation:

Counsel:

Plaintiff:     Mr J G Hanly
First Defendant             :     Mr D R Sands
Second Defendant         :     Mr D R Sands
Third Defendant           :     Mr D R Sands
Fourth Defendant          :     Mr D R Sands

Solicitors:

Plaintiff:     Hotchkin Hanly
First Defendant             :     Talbot & Olivier
Second Defendant         :     Talbot & Olivier
Third Defendant           :     Talbot & Olivier
Fourth Defendant          :     Talbot & Olivier

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

Baird v Roberts [1977] 2 NSWLR 389
Brandi v Mingot (1976) 12 ALR 551
Chelini v Northern Territory Port Authority (1976) 12 ALR 519
Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431
Elders v Devereux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81‑192
Kember v Thackrah [2000] WASCA 198
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1992) 12 WAR 119
Payne v Parker [1976] 1 NSWLR 191
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Van Gervan v Fenton (1992) 175 CLR 327
Wylde v Arriaza (1997) 25 MVR 539
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81043
Koeck v Persic (1996) Aust Torts Reports 81386
Teubner v Humble (1963) 108 CLR 491

COMMISSIONER ARCHER:

Background

The plaintiff claims damages from each of the four defendants for injuries suffered by him in four separate motor vehicle accidents, each involving a separate defendant. Each defendant admits negligence but denies that the plaintiff is entitled to the damages claimed or any damages. In the alternative, the defendants assert that any loss from which the plaintiff is suffering was caused and/or contributed to by injuries, loss and damage suffered by the plaintiff as a result of another car crash (which preceded the four under consideration in this case) and by the plaintiff's heart and diabetic condition.

The situation prior to the accidents

The plaintiff was born on 12 February 1949 and is now 56 years of age. Prior to the accidents (including the first accident), the plaintiff was a very active person. Both he and his wife, Jillian Watson, gave detailed evidence of his activities. While their evidence conflicted at times in relation to dates, frequency and duration of activities, their accounts were broadly consistent. Where there were inconsistencies, I prefer the evidence of Jillian Watson to the plaintiff, for reasons which I will address later.
Jillian Watson met the plaintiff at a church youth group in 1968 when she was about 20 years old. At that time, the plaintiff was 19 years old and studying horticulture at Kings Park. They married on 15 August 1969. A couple of months later, in October 1969, the plaintiff was conscripted into the army. He spent two years in the army and during that time was trained to be a cook.
When he left the army, he took up a job as first cook at a cafeteria at the Institute of Technology, as it was then called. He worked there until about 1974. By the time he left, he was in charge of the kitchen, answerable to the chef. Below him were four apprentice chefs and various staff who did the salads. After leaving that position, he was a catering officer for the hospital ordinary linen service for about six months. He then went to work at Bentley Hospital as a gardener until 1985, a period of some 10 years. During that time, Mrs Watson was working at a laboratory.
The Watsons also tried to assist those less fortunate. They took into their home numerous youths that they met through the Jesus People, who were in trouble and needed a helping hand. They also took in sons of their friends. According to Mrs Watson, the plaintiff would help the youths improve their self‑esteem, sort out their legal problems, and get jobs.
In addition, the plaintiff did outside catering for various groups, charging a fee only for the food. The plaintiff also helped out on councils and youth committees. Throughout their married life, both were continuously involved in church groups.
In addition, both the plaintiff and his wife studied hobby courses at technical colleges. The plaintiff also enjoyed playing chess.
The plaintiff was also involved in starting up the Southern Districts Rifle Club and was their first range captain. Mrs Watson was the secretary. The plaintiff was involved in the club for three to four years, until they moved to Fairbridge full time.
Mrs Watson also said that the plaintiff used to play squash but he was apparently stabbed in the arm when he was in the army which prevented him from playing squash. Mrs Watson was not asked any questions about this, nor was it the subject of questioning of any other witness. In the absence of any clarification as to whether his inability to play squash was temporary or permanent or overtaken by the injuries sustained in the motor vehicle accidents, it is impossible to assess the significance of this evidence. Accordingly, I have disregarded it.
In 1971, the plaintiff and his wife had registered a business called Crossroad Catering. Initially, they only used the business to purchase goods when they were catering for camps and functions. They had a partner who was one of the youths that they had helped. The partner was also a chef. At some stage, the business began catering for Fairbridge Village. Fairbridge Village was apparently a place where schools and organisations would go for camps through the year. Initially, the partner moved to Fairbridge Village while Mr and Mrs Watson stayed in Perth. During that time, the plaintiff would go down on his long service leave and holidays to help. Mrs Watson said she went down on weekends. They would also hire local people to work there.
In about Easter of 1985, however, Mr and Mrs Watson took over from the partner. The plaintiff took charge of the kitchen, training the staff and ordering the food. The number of people working for the Watsons varied, but at the most they had 14 or 15 people employees. They were required to prepare up to 750 meals, namely breakfast, lunch and dinner, morning and afternoon teas and suppers. There were also two function centres and a chapel, and they had to cater for a lot of weddings. There were also numerous local meetings, business meetings and bus tours for which they catered. Mrs Watson also looked after a local kiosk.
Mrs Watson said that the plaintiff was also required to do manual maintenance work. She said they painted the house in which they were residing, laid the carpets, "did" the curtains, mowed about two acres of property, kept the trees pruned and kept the drains clear of rubbish. Mrs Watson said they also cleaned out some old sheds out the back.
The Watsons left Fairbridge in 1992, but they continued doing camps at other locations. They also did relief work on weekends at the Village Café in Pinjarra. Further, one weekday per week, they relieved the owners of the Serpentine Falls Roadhouse.
After Fairbridge, Mrs Watson described the plaintiff's work as "off and on. As the work came in we worked flat out." They also continued to support the Living Waters Skin Diving Club. The club had a camp for the children every school holiday. Around the house, the plaintiff organised a patio to be built. He organised for sheds to be erected to store all of the catering equipment that they had accumulated. He also did the gardening and put in reticulation.
In about October of 1993, the plaintiff was offered some relief work at Diggers Rock near Hyden for a few weeks. It involved cooking for the men at the camp. At the end of that period, he was offered a job relieving at Marvel Loch.
The plaintiff and his wife moved to Marvel Loch at the beginning of December 1993, with the plaintiff in the position of a chef manager. His primary duties were to cook the meals and do the ordering and stock takes. Mrs Watson assisted the plaintiff in this job. Apparently his wages were split, with two thirds allocated to him and one third allocated to her. The company that paid them was SHRM.

The accident on 12 September 1995 ("the first accident")

On 12 September 1995, the plaintiff was involved in a serious single vehicle accident on the mine site. It seems that he was the driver and sole occupant of the vehicle. He spent 12 days in Royal Perth Hospital before being released. After his release, his condition deteriorated. He was taken to St John of God in Murdoch where he spent three to four weeks. His injuries were significant, and his recovery was slow.

The situation between the first and second accident

To assist Mr Watson to return to the workforce, the rehabilitation organisation ("RIS") placed him in the SHRM head office in Jolimont. That was early in 1996. He worked there for about six months for four hours a day, Monday to Friday.
In about October of 1996, Mrs Watson returned to Marvel Loch, to work in the general store. At that time, a friend of the Watsons, Trevor Lowe, was living in their home. Mr Lowe has acute myeloid leukaemia. After Mrs Watson left, she said that the plaintiff would take Mr Lowe to hospital and to medical appointments. Every two weeks, Mrs Watson would return to Perth for a weekend. This went on until February/March 1997, when the rehabilitation provider arranged for the plaintiff to work in the general store at Marvel Loch. The plaintiff was allowed to have breaks whenever he needed to. Initially he worked in the afternoons for four hours. According to Mrs Watson, as time went by, he also worked on weekends, and sometimes in the mornings. Mrs Watson said he sometimes just worked on and off all day. She described the general duties that he would perform in the shop, but said he also did additional tidying and renovating work.
Through no fault of the plaintiff or his wife, they lost their positions. While there had been no real time set as to how long they would stay at Marvel Loch, Mrs Watson said that she thought they would have stayed for maybe a couple of years. She said they enjoyed working in more remote areas.
The evidence as to the amount of hours the plaintiff worked at Marvel Loch is conflicting. Mrs Watson claimed that his hours increased to approximately seven and a half to nine hours a day, six days a week plus four hours on Sunday. However, as will be detailed below, Dr Home said that Mr and Mrs Watson had said that Mr Watson was only managing four to five hours productive work per day.
There is also a conflict in how well he was coping with that work. While Mrs Watson conceded that he was able to take breaks whenever he needed to, she said in her evidence that the plaintiff "was doing great". Mrs Watson was asked whether the plaintiff was showing any signs of having psychological problems when he was at Marvel Loch and she said: "No. Actually he was doing really well."
However, Mrs Watson did agree that the plaintiff would sometimes panic when operating a cash register. She said he would get very flustered and lose "a little bit" of control of what he was doing. She said he would have to stop and think and then he would carry on. Mrs Watson said the panic lasted a minute or two, and happened two or three times a night.
Mrs Watson said that neither she nor her husband realised that the plaintiff had some psychological problems following the first accident. It was only through their attendance at the pain management clinic that they became aware of that.
Mr and Mrs Watson moved back to Perth in August 1997. The plaintiff's general practitioner, Dr Nathan, referred him to a psychologist, Mr Brueschke.
In cross‑examination, it was put to Mrs Watson that her husband was depressed around 1997 and that that was why he was seeing Dr Nathan. While agreeing "there were a few problems there", Mrs Watson said they were minor problems. Various extracts from Dr Nathan's notes were put to Mrs Watson. For the most part, Mrs Watson gave qualified answers to the questions that followed.
Mrs Watson was asked about an entry that read "vague, confused, depressed, unhappy in present situation." She said that that could relate to the plaintiff being unhappy about working as a kitchen hand when he was a qualified chef. But she added "so he was trying and he was getting there … every now and then that would surface, yes."
She was asked about a note that said "Depressed, has been retrenched. Able to work four to eight hours a day with breaks at 10 to 15 minutes," and which referred to Mr Watson panicking under pressure. Mrs Watson replied "We asked them to put that down in case we needed to claim something from the government, so it was a disappointment, yes …".
She was asked about a note from 14 August 1998 which read "Very confused, depressed, memory lapse, relapsed, loss of self‑esteem, lack of confidence." She was asked whether that was an accurate description of her husband's condition in August 1998. She said "Possibly. He was up and down a little bit sometimes. His mood swings were up and down a bit. Hadn't stabilised it completely."
The evidence as to the frequency with which the plaintiff was seeing Mr Brueschke prior to the second accident is also in conflict. Mrs Watson claimed that it was initially every week, then it reduced to every two weeks, and then it reduced to once a month. She said that had been once a month for the last two visits before the second accident.
Under cross‑examination, Mrs Watson was challenged as to how often the plaintiff had seen Mr Brueschke.
Mrs Watson was adamant that on the last occasion they had seen Mr Brueschke, their next appointment was a month away. She said she wasn't 100 per cent sure but thought that the previous one had been a month before. When it was put to her that the plaintiff had told Dr Febbo in June 1999 that he was seeing a clinical psychologist weekly, Mrs Watson said she was surprised.
When it was put to her that Mr Brueschke's own reports indicated that he was still seeing the plaintiff weekly but was going to reduce that to a fortnightly programme (had the second accident not occurred), Mrs Watson disagreed with that account. She repeatedly maintained that position, and said Mr Watson had been under particular stress in June/July due to work. She said: "Things had settled down, and I thought we'd gone back to fortnightly, and that's the honest truth before the good Lord." Later in the cross‑examination, this topic was revisited. At that point, Mrs Watson did concede she was "not standing by" her estimate 100 per cent.
The report of Dr Febbo of what the plaintiff advised him in June of 1999 suggest that Mrs Watson's recollection as to this is incorrect.
Further, in his evidence, Dr Home said that his notes from the consultation on 7 May 1999 indicated that the plaintiff had told him he was seeing Mr Brueschke once a week.
Mrs Watson got a job at Wearne Hostel in October of 1997 as a kitchen hand, working three hours a night, Monday to Friday.
The plaintiff's mother passed away in November 1997. In November 1997 and early 1998, the plaintiff was involved in cleaning up his mother's home after her death and assisting his brother (who was the executor) with various arrangements.
The plaintiff started up the Langford Progress Association in 1997 and the following year got involved with Neighbourhood Watch as an area coordinator.
The plaintiff was the president of the Association until 2000. Mr Watson said that by then "it was just too much so he didn't stand for re‑election."
In early 1998, the rehabilitation provider arranged for the plaintiff to work in a cafeteria at Telstra. The plaintiff was an assistant to the chef, and helped prepare the lunch meal. His hours were 7.30am to 12.30pm, three days a week. He worked there for only three to four months. Mrs Watson said he seemed to manage that work satisfactorily but it is clear that the plaintiff was allowed to have breaks whenever he wanted. It seemed that he wasn't able to continue with that position when the rehabilitation provider formed the view that it might not have been suitable for him.
After that position finished, the plaintiff apparently sought alternate employment, with no success. He was apparently offered a job in a roadhouse in South Hedland, but declined due to his belief that South Hedland was unsafe.
Mrs Watson said that during 1998 both she and the plaintiff were still involved in cooking for children's camps about three to four times a year. On those occasions, the plaintiff was the chief cook. The plaintiff would work out the menu and how much food needed to be ordered. Once there, the plaintiff would do all of the cooking, for up to 50 people.
During 1998, the plaintiff also organised "men's breakfasts" on Saturday mornings at the church. Again, he would organise the menu, and cook and serve the food, for up to 120 people. The breakfasts were held two or three times a year.
The plaintiff also catered for church camps in Rockingham during 1998. There would be approximately 100 to 150 people plus 20 to 30 additional day visitors to feed. There was no evidence of the frequency of those church camps.
In 1998, the rehabilitation provider ceased being involved with the plaintiff.
The same year, the plaintiff began to accompany his wife to work at the hostel, to help her. Initially, he wasn't getting paid. However, on 28 December 1998, he was employed as a kitchen hand. He worked three hours a night, five days a week, with his wife.
Mrs Watson was asked about her level of supervision over the plaintiff during this period. She said that she did have close supervision of his work because they had to work together to make sure it ran smoothly and swiftly. She said she didn't give him instructions generally, but only if there was something that cropped up unexpectedly. She said that most of the time he was able to handle everything on his own "with the cooking side of things". Both Mr and Mrs Watson said that he "prepared" the meals for about 50 residents and served them. However, Mrs Watson later said that the soups were prepared by the chef and simply required reheating and serving. She said, however, that "he had to quite often put together" the actual dinner. She was not asked to explain what she meant by that. However, it is apparent from the evidence of Joanne Flannery, the operations manager of Spotless (the company which employed the Watsons), that Mr Watson was not required to do any cooking other than reheating.
In re‑examination, Mrs Watson qualified the degree of supervision she had over the plaintiff. She said that "unless there was a problem with a resident or one of the meals, there wasn't really much to do in the way of looking after him or watching over him really." She said "only if there was a complaint about one of the meals, we'd look into it, or if we didn't do something right or another problem of a different description but apart from that, no."

Mrs Watson gave evidence that they were looking for jobs with similar hours "perhaps increased, because we definitely decided to do more hours."
However, it seems that the plaintiff had a number of difficulties at the hostel. Both he and his wife gave evidence about some problems they had with the manager of the hostel, Sue Brooker. Ms Brooker had apparently commenced working at the hostel in about April of 1999.
On 17 May 1999, the plaintiff was called in to discuss an incident. He was stood down for two weeks. He was then called in for another meeting and required to sign an undertaking that he would not communicate with Sue Brooker for 12 months. On the last Friday in July (the 30th), there was a further incident in which the plaintiff spoke to Sue Brooker in breach of that agreement. In response, Mrs Flannery came and spoke to the plaintiff at about 6 pm. She told him that he had broken the agreement and that he had to leave. Ordinarily, his shift would not have finished until 8 pm. The plaintiff asked her if he was being sacked and she apparently said, "no you're not." She then asked the plaintiff to attend the Spotless office at 9 am on Monday.
Mrs Watson denied being aware of any complaints in relation to Mr Watson's performance at Wearne apart from complaints by Sue Brooker. She claimed he got on well with the other staff, the chef and the residents. She did admit that Ina Simpson (the manager of the hostels) had spoken to the plaintiff about "a couple of things a few times", but Mrs Watson said she didn't think there were any problems.
However, the evidence of Joanne Flannery suggests that the difficulties went beyond what Mrs Watson would concede. Ms Flannery gave evidence that there were seven to eight Spotless staff working at the hostel. She said that, of those staff, she only received complaints about the manager and Mr Watson. In addition, none of her Spotless staff complained about Ms Brooker apart from Mr and Mrs Watson. She added that the main source of the complaints against Mr Watson had not come from Sue Brooker but indeed was from Ms Simpson. She said the complaints related to his general day to day manner with staff and residents. Her understanding was that he was not getting on well with the staff and the residents. She said while she hadn't done anything further about those matters, the warning letters she ultimately issued were a culmination of all of these complaints.
When asked to further describe the nature of the complaints, Ms Flannery said that the complaints were that Mr Watson had an unpredictable nature and inappropriate manner with the residents and other staff members. She said the behaviour was ongoing. She said the plaintiff would be moody or would yell. She said he had quite an aggressive manner, and that he was a little bit intimidating to some people. She said it wasn't professional. She said for the first couple of months he was there, there were no problems. However, from May through to August, there was a complaint daily or at least every second day.
It is, of course, necessary to treat this evidence with some caution. There was no evidence from the actual complainants themselves, nor of the actual complaints. However, Ms Flannery's evidence does cast a shadow over the plaintiff's likely future with Spotless had the second accident not occurred. However, that all became academic when, on the way to their meeting with Ms Flannery, the plaintiff and his wife had the next motor vehicle accident.

2 August 1999 accident ("the second accident")

Both Mr and Mrs Watson said that Mr Watson was unconscious for a period of quite some minutes after the accident. Mrs Watson estimated it was for five to seven minutes. The ambulance officers gave him some oxygen and he apparently revived. However, she said he was in and out of consciousness and was vomiting and couldn't walk very well. She said his left leg was really sore and he was stiff in his neck and shoulders. However, he was not admitted to hospital, apparently just remaining there for a couple of hours while he was examined. Mrs Watson gave evidence that, in addition to his physical injuries, the plaintiff was "really in sort of shock. He kept feeling sick. He was agitated, angry, you know, he just basically slept for a few days, couldn't do much, went to see a doctor." It seems that the doctor organised for the plaintiff to have some physiotherapy, but it made him worse so he ceased attending. The plaintiff also went to see his psychologist, Mr Brueschke. Mrs Watson said the plaintiff "was very angry that this had happened … He was being sick. He couldn't drive. He didn't want to go in a car. Very impatient." She said that before the second accident he was quite well controlled in the car and had been driving quite a lot and was in quite good control of his emotions. She said: "So it was like a complete back flip. He'd gone 180 degrees back the wrong way."
After the second accident Mrs Watson said the plaintiff "was very nervous. He was very depressed. He was in a lot of pain. He kept wanting to be sick. He was feeling nauseous. Going home I had to stop the car." She said that that was so he could be physically sick. Mrs Watson explained that:
"He was just very depressed that this had happened when he was just getting better and he didn't know why it had happened and he even blamed God at one stage. It was just a matter of he was going so well with his – getting to do the work and being in control of his things and doing things again that he hadn't done for a few years and now that had like – to him that seemed like it had put him back and that made him feel just really down. … He couldn't understand it and didn't want to accept it, that type of thinking."
Mrs Watson described what she called panic attacks when the plaintiff would get very hot, very sweaty and nauseous. She said:
"He has trouble controlling his thinking or what he wants to do, how he wants to do it. It sort of like consumes him, if that makes sense."
She was asked if that was the way he was immediately following the second accident and she said: "It came back – yes. It came back quite quickly." She said, however, that it was definitely different from the way he had been shortly before the second accident.
Mrs Watson said that about a week after the second accident, Dr Nathan prescribed the plaintiff some sleeping pills. She said that prior to the second accident the plaintiff had not been having trouble sleeping. However, she then said that he had had trouble off and on. She said he had his good and his bad days, but generally his sleeping patterns had stabilised very well and he was almost back to normal. However, she described very significant sleeping difficulties following the second accident. She said that the plaintiff would wake up in the middle of the night sobbing in pain and that he had nightmares. She said the sleeping pills helped for the first two or three weeks, but then they seemed to stop working.
Both Mr and Mrs Watson said the plaintiff has not driven since the second accident. They both gave evidence that he had tried, but it made him physically sick to the point of vomiting.
Mrs Watson said that the plaintiff was still experiencing physical and psychological symptoms immediately prior to the October 1999 accident, but his hip had improved a little.

October 1999 accident ("the third accident")

After the October 1999 accident, Mrs Watson said the plaintiff curled up into a ball. She said:
"He was sort of very dazed, sort of in and out of consciousness, sort of very much in shock, wanting to be sick again. Yes, sort of had a sore head as the mirror had fallen off and hit him on the head and he had a bit of a sore head there for a bit."
Mrs Watson said that they had been on their way to see Dr Fong (although I note from Dr Fong's oral evidence that he had thought the accident had occurred in the morning, while he had seen the plaintiff in the afternoon).
Mrs Watson described in some detail what appeared to be significant psychological symptoms being suffered by the plaintiff immediately after this event. Mrs Watson claimed that the plaintiff couldn't see as "he couldn't open his eyes to the sunlight even with sunglasses. He had his eyes sort of really squinted shut."
The plaintiff continued to have apparent trouble with his eyes and Dr Nathan referred him to see Dr Lemay. Not surprisingly, there was nothing physically wrong with his eyes.
Mrs Watson said that the plaintiff continued to see Mr Brueschke until early January 2000. After that, the frequency reduced to every two weeks until about March or April of 2000.
Mrs Watson gave evidence that the plaintiff started seeing Dr De Tissera in March of 2000 and then started seeing Dr Segal in June 2000.
The plaintiff saw Dr Segal once a week for a couple of weeks and then the frequency was reduced to once a fortnight until early 2001.
Mrs Watson gave evidence about the plaintiff's psychological condition during 2000. She said: "He was under tremendous pressure because we were claiming workers' compensation from Spotless as well for the August accident" (the second accident). She said that the plaintiff couldn't handle those proceedings, so they dropped their claim. She said that did appear to help his mental condition a little but that he still had the underlying problems of depression, nervousness and panic attacks.
Mrs Watson said the plaintiff was sleeping from 18 to 22 hours a day during 2000. She said he was "a zombie basically. He was still stuttering and stammering and slurring his speech from sleeping pills so he stopped taking some of them. Yes, he was just a mess basically."
In re‑examination, Mrs Watson qualified that evidence. She said that the plaintiff had been like that "sort of up and down and off and on, but really bad it would have been about four weeks, six weeks." She claimed that during that period he did nothing at all.
After that period, Mrs Watson said that the plaintiff would do the dishes and would spend a little bit of time outside in his shed. He started doing a bit of cleaning up and sorting things out but she said he couldn't concentrate on a lot of things. She said he was "good" for a little while, and then his brain would "sort of switch off". He would need to have a break or he would get overwhelmed.
In about October 2000, the plaintiff decided that he had to get on with his life. Mrs Watson thought that some of his symptoms had subsided a bit and that he had the occasional good day. She said that he started to attend a few meetings of neighbourhood watch. He had been going before the second accident but had apparently stopped afterwards. When he started attending again at the end of 2000, Mrs Watson would take him, so if he wasn't feeling well she could take him home. He was going every two to three months. A couple of times she did have to take him home early.
She said he couldn't handle doing any cooking but he did the washing and sometimes did the watering. She said he had no motivation to cook. She said he didn't have the concentration or the imagination. However, she said that he started to do a little bit of cooking in 2000. He'd go with her to the shops and go for walks with her.
Both Mr and Mrs Watson also described Mr Watson's behaviour when he was in a car after the second accident and onwards. She said that towards the end of 2000, his symptoms were easing off a little bit, but he was still extremely jumpy and nervy in the car and still banging on the dash. She said that unless he could go for a walk and settle down, it could take an hour or sometimes two for the nervousness to settle down.
Mrs Watson also gave evidence about the plaintiff's problems in dealing with people. She said that in 2000, he was angry with himself and she had to watch what she said because "he's likely to jump, to bite, so you just had to be careful, but it was mainly with himself." Mrs Watson said that before August 1999, the plaintiff had not really exhibited the same problems. She said: "He had never been angry. He had never been – I've never seen Peter really angry before 1999, not really angry."
This evidence was strongly challenged. It was put to Mrs Watson that, in Dr Febbo's report of 29 June 1999, he recorded the plaintiff as saying:
"that on occasions he finds that 'I start to use bad language, become very agitated', whereas normally he is a church going person. He said that he is less tolerant and he tends to become more frustrated and angry when he sees that 'people are idiots'. His wife added 'He doesn't suffer fools easily now'."
Mrs Watson agreed that that had been said but explained it by saying:
"Everybody gets angry from time to time. Peter was having a really hard time. Yes, he might let it go, but generally he was really good, and I wouldn't have called it a real anger problem."
In relation to Dr Febbo's report about the plaintiff shouting, Mrs Watson explained that he wasn't shouting at other people, he was shouting at himself.
Just prior to the next car accident (on 20 December 2001) Mrs Watson said she felt that Mr Watson's condition was the best he had been in a couple of years. She said his shoulder symptoms and stammering had eased a bit. She said he was getting more confident and cooking a little bit more. However, he still had a memory problem, trouble concentrating, general depression, and was still nervous in the car.
She said that he had started to build some small trolleys in the shed, but it took him months and months. She said he "would get frustrated because he would get things mixed up and confused and back to front and so it would take him five times as long, and when he finished it wasn't brilliant, but he'd done it so he was pleased."

20 December 2001 accident (the fourth accident)

After the fourth accident, both the plaintiff and Mrs Watson described significant psychological symptoms. Mrs Watson said his "eyes were rolling around in his head. He was dazed, dizzy, had trouble walking. He had violent diarrhoea. He was sick a few times." She said he was visibly shaking and his lips were sort of quivering. She took him to see Dr De Tissera in the afternoon. The plaintiff also went to see his general practitioner.
After the fourth accident, Mrs Watson said that the plaintiff could not walk straight without losing his balance, and that he had lost his coordination. She said he had trouble sleeping again, even though he was taking Valium. She said he started having nightmares and even started hallucinating while he was awake. She said his sleeping had gone back to being 16 to 20 hours a day. She said he was also stammering and slurring his words and she couldn't understand what he was saying. She said that his balance problems, hallucinations and nightmares eased off within six weeks of the fourth accident, when he stopped taking some of his pills. She said that, by the middle of 2002, the stammering had eased off but the slurring remained to an extent until the end of the year. Eventually, it disappeared too. She said the plaintiff wasn't in a state to do anything around the house because of his lack of coordination. She said his memory had gotten worse and everything had gone downhill.
Mrs Watson also said that her husband got a lot of headaches and had a stiff and sore neck after this accident. She said that he was also shaking and nervous and that lasted for about three to four months.
By 2003, Mrs Watson said his stammering, his shaking and lack of balance had subsided. However, she said he was still getting angry. She said he had started to lash out at people. However, he was a bit more able in the kitchen and around the house and helped out a little bit more. She described some residual physical pain, but primarily described symptoms such as vomiting in the shower and falling asleep at the table. She said his sleeping hours had reduced to 12 to 16 hours a day. She said that the need to have a lot of assessments by doctors in 2003 didn't help because he had to keep repeating his story.
She said the plaintiff started to get back into cooking in 2003 "in a serious way" and now, apparently, cooks most nights. (He apparently stopped for a little while after the fifth accident, but returned to it soon afterwards.)
She said he was still not very confident, and still angry. When Mrs Watson needed some medical attention towards the end of 2003, she arranged for someone to move into the house to help take care of things. She said:
"Peter wasn't able to cope. … I used to organise it all – to just organise Peter in the house because he was very disorganised. His brain just wasn't functioning; couldn't get his brain or his mind around some of the problems and he'd put things back to front, you know, not in the proper order. … so I had to write a lot of things down for him, like, bills that needed to be paid and all that sort of thing that he had to do on a regular basis. I had to get John [the person she had arranged to move in] to do all his pills and medications."

January 2004 accident (the fifth accident)

After this accident it seems the plaintiff experienced further psychological symptoms. Mrs Watson said that on this occasion the plaintiff,
"didn't fall back into, like, the dark hole that he'd been in with previous accidents. It did affect him, however. The car, he's hopeless now. He is so nervous. He got very angry again. The anger was even worse than before and he still gets feeling nauseous and sick and his panic attacks were terrible, yes. But his physical wasn't too bad."
The plaintiff stopped seeing Dr Segal around June/July 2003, but continues to see Dr De Tissera.
Both Mr and Mrs Watson described his current physical condition as being "not too bad." Both described some minor residual symptoms.
In regard to his emotional condition, Mrs Watson gave evidence that it wasn't too bad for a while but towards the end of 2004, "he was very aggressive in his attitude to people, their opinions, or wanting to enforce his opinion over their opinion; got very angry at people and would tell them." She said he was still nervous in the car. She said if he is trying to cook something "and everything is hurry, hurry and he is messy and he is dropping things and forgetting things and putting things back to front. So in that way, no, it's sort of gotten worse."
She said that he mostly does the cooking at night time. She said that she does help sometimes because he is not always organised:
"He's got stuff from one end to the other and he picks up wrong things and he adds wrong things and different sauces or spices and – he sort of knows how to fix it, but he's lost a lot of that to what he used to have."
Mrs Watson said that the plaintiff now took Panamax for pain once or twice a week during the day, and every night to help him sleep.
Both Mr and Mrs Watson gave detailed evidence about the hobbies he had been involved in prior to August 1999 and his loss of interest in them after the various accidents. There is no doubt that the plaintiff's general level of interest in life suffered a significant decline over the years.

Mrs Watson as a witness

For the most part, Mrs Watson answered questions in evidence‑in‑chief in a straightforward matter of fact fashion. On a couple of occasions she seemed to get a little upset. It appeared that she felt considerable loyalty to her husband and was still deeply affected by her husband's pain and distress. That impression is reinforced by the conflict between some of her evidence as to her husband's condition from time to time, compared to the medical evidence and what the doctors said they had been told at the time.
It is also interesting to note Mrs Watson's answer that when she went to medical appointments with the plaintiff she "wasn't allowed to say very much. I sort of sat in the background and he had direct contact. I didn't participate really at all." That is contradicted by the evidence of many of the doctors, who recorded significant and volunteered input from Mrs Watson. For example, Dr Home's reports of 7 May 1999, 30 November 1999, 11 February 2003 and 22 July 2004, Dr Febbo's reports of 29 June 1999, 23 June 2003 and 5 November 2004, Dr Bath in his evidence and in his report, and Dr De Tissera in his evidence.

Counsel for the defendants also pointed out that Mrs Watson gave evidence that Cipramil cost about $110 a month and Neulactil was about $80 a month. However, in cross‑examination, she was forced to concede that those drugs were under the Pharmaceutical Benefits Scheme, and accordingly had only ever cost them $4.60 per month.
In addition, I have already noted Mrs Watson's evidence as to the frequence of the plaintiff's attendances on Mr Brueschke, and the plaintiff's condition prior to the second accident.
These issues give rise to a serious doubt as to Mrs Watson's evidence. Given the lengthy period over which these events occurred, the fact that there were five accidents, and Mrs Watson's understandable loyalty to her husband, it is perhaps not surprising. However, in view of the conflicts between what Mrs Watson is saying now and what she and her husband told the doctors prior to the second accident, I find I am unable to rely on Mrs Watson's evidence in relation to the plaintiff's condition throughout the relevant period.
While I do have some concerns about her evidence in relation to her husband's condition, her evidence as to various dates and events was consistent with the available objective evidence. Accordingly, in relation to those matters, where her evidence conflicts with her husband's, I rely on her evidence in preference to his.

Mr Watson as a witness

I have similar concerns in relation to the plaintiff's evidence. The plaintiff's evidence also suffered from the additional feature of being somewhat disjointed, and the plaintiff had a tendency to express himself in exaggerated terms. Numerous doctors expressed similar observations, and it was confirmed by the manner in which he gave his evidence. For example, he described his garage as "huge", yet then identified, by reference to the court room, a size which was agreed by counsel to be about 5 metres by 5 metres.
In Mr Hunt's report of 21 April 1999, he noted that there was an indication of "a personality disorder or psychological condition which appears to involve issues of grandiosity and unrealistic self‑appraisal of his pre‑morbid ability."
Dr Home was asked whether he thought the plaintiff was malingering or exaggerating his symptoms. Dr Home said that initially he didn't have any concerns. However, by the third presentation, Dr Home felt that the plaintiff's presentation was unusual. He said that he didn't accept that Mr Watson's cognitive difficulties were as great "as he makes out in a clinical setting". Later, Dr Home explained that the plaintiff may be subconsciously exaggerating, rather than lying or malingering. However, Dr Home did say that he thought there was some conscious exaggeration.
Counsel for the defendants submitted that the plaintiff's credibility should be doubted in light of his apparently inconsistent memory functioning. However, in his report of 15 March 2005, Mr White noted:
"Of significance is the finding that the only memory index score that is normal is auditory recognition delayed. In people with a documented proven memory problem, it is generally found that recognition memory is performed better than other memory tasks, as found here."
Although that finding was not referred to in the oral evidence of Mr White, nor in submissions, it may be a matter of some significance in assessing the plaintiff's credibility. The finding of Mr White, while unexplored, may, as a matter of logic, tend to support the plaintiff's genuineness. Accordingly, while I have concerns about the plaintiff's reliability, I do not find that the plaintiff was deliberately being dishonest.

Medical evidence

Dr Home – Report 12 September 1996

Dr Home is an occupational physician who works from St John of God Hospital in Murdoch. Dr Home described an occupational physician's speciality as "Any matters to do with work and health. So primarily, the assessment of capacity for work, rehabilitation, ergonomics, toxicology, any matters that relate to impact of work upon health or health upon work." Dr Home said in evidence that he had been an occupational physician for 13 years. He said that rehabilitation was a large part of his practice.
Dr Home first saw the plaintiff in September 1996 and saw him subsequently on a number of occasions, the last being July 2004. He was called by the defendants. His evidence was critical, as he was one of the few doctors who had seen the plaintiff between the first and second accidents.
In his report of 12 September 1996, Dr Home set out his findings on seeing the plaintiff that same day.
Dr Home described the injuries that the plaintiff sustained in the first motor vehicle accident as including concussion, a fractured left clavicle, left pneumothorax, a fractured right first rib and injury to the right brachial plexus.
The doctor said that the plaintiff described becoming emotionally depressed earlier in 1996 and that he was seeing a clinical psychologist. The plaintiff reported some loss of his "sharpness" and felt that his memory had been affected by the accident. Dr Home was of the view that there was a functional component to Mr Watson's disability but there was no reason why he could not increase his hours to full time hours within the next two to three months.
In cross‑examination, Dr Home was asked whether Mr Watson's depression was likely to be due to the physical injuries that he was suffering and the limitations that they imposed upon him. Dr Home answered:
"Well, partly the physical injuries, but again, look, his brachial plexus injury was quite serious initially, although it did improve well, and so his physical injuries on the whole weren't particularly severe, but certainly in combination with the fact that he wasn't working, grief reactions, I gather from Mr Brueschke's reports, in relation to the death of family members; all these things can compound, I guess, to exacerbate a depression that, as I say, we now believe is largely due to chemical imbalances in the brain in terms of aetiology, if you want to look it at that way."

Dr Home – Report 29 August 1997

Dr Home next saw Mr Watson on 29 August 1997 and described his findings in a report of the same date.
Dr Home recorded that the plaintiff had told him he had become rather depressed towards the end of 1996 and had been placed on a number of anti‑depressant medications. The plaintiff further told Dr Home that he ceased the tablets approximately six weeks before this attendance. However, in Dr Home's evidence, he noted that the plaintiff had recommenced taking the medication shortly afterwards.
Dr Home set out Mr Watson's account of some difficulties he was experiencing with working. In his evidence, Dr Home said that he had asked the plaintiff about the symptoms of stress that he had suffered while working at Marble Loch. Dr Home said that the plaintiff "advised that he was having difficulty coping with stress, in particular, he experienced stress when he was serving at the counter and he would have three or four customers lining up in a queue. He would find that very stressful. He also advised that he would experience such stress that he would take a break from his work at times …". Dr Home said: "As a consequence of that, he only worked productively about four to five hours per day was the history that I was getting from him and his wife …". Dr Home added that the plaintiff "told me that he was able to cope with about 4 – 5 hours productive work, but whilst he might have been there for longer hours, he wasn't very – he would sit out the back type of thing. He was only working, in terms of actually doing things in the shop, loading shelves and/or serving customers for about 4 – 5 hours."
Dr Home was adamant that the history he took was that Mr Watson was only effective for four or five hours. He referred to his notes in which he had written: "Marvel Loch, coping with four to five hours per day." He said: "I've got that in black and white in my notes."
In his evidence, Dr Home said that, based on what the plaintiff had told him, it seemed that the plaintiff's depressive symptoms had worsened since the first time he had seen the plaintiff.
The doctor also noted in his report that the plaintiff was continuing to report memory loss and had not resumed pre‑accident hobbies involving a rifle club and occasional ten‑pin bowling.
Dr Home was of the view that Mr Watson's condition had continued to improve since his last review. However, in this report, Dr Home said that he was not certain that Mr Watson was fit for full time work, based on his ongoing physical and psychological disabilities. Instead, Dr Home said he could perform 25 hours work per week.

Dr Fong – Report 4 February 1999

Dr Fong was the next doctor to see the plaintiff, of the doctors that were called to give evidence in this trial. Dr Fong's qualifications include an MBBS, a medical degree from the University of Western Australia, and a Fellowship of the Australian Faculty of Rehabilitation Medicine. He is currently head of the Department of Rehabilitation and Medicine at the Shenton Park campus of Royal Perth Hospital, and is also in private practice known as Network Rehabilitation Services. He said he was a rehabilitation specialist.
Dr Fong saw the plaintiff on two occasions in January 1999. He set out his findings in his report of 4 February 1999. Like Dr Home, Dr Fong was also called by the defendants.
Notably, Dr Fong stated that the plaintiff had remained significantly symptomatic and disabled due to his reported range of residual symptoms. He stated:
"Perhaps the most significant disability for this man has been the continuation of a wide range of psychological symptoms including depression, anxiety and panic attacks. A change in his personality has also been described with a tendency for him to use profane language inappropriately."
In his evidence‑in‑chief, Dr Fong said that that summary came more from the reports of Mr Brueschke that had been provided to him by the plaintiff's general practitioner. He then said: "If I can refer to my notes I can tell you what Mr Watson actually did complain to me of – that he was prone to being very shaky – was very anxious. He did confirm that he was prone to experiencing unpredictable panic attacks and he also described features which suggested the presence of a post‑traumatic stress type syndrome."
As to the cause of the post‑traumatic stress, he said:
"It would seem that it all commenced following the 1995 accident. I established that prior to that time he appeared to have been functioning normally in an emotionally behavioural sense and as a consequence of his injuries and the recovery which included high level of ongoing pain and disability, it evolved into a state where he was very anxious and vigilant about a lot of events."
Dr Fong noted that, two weeks prior to the first time Dr Fong saw the plaintiff, the plaintiff had started work. This was the 15 hours per week the plaintiff was working as a kitchen hand in the hostel. In relation to that work, Dr Fong noted: "He seems to be coping reasonably well despite his chronic pain symptoms having flared up a little."
In evidence‑in‑chief Dr Fong confirmed that he believed the plaintiff was psychologically vulnerable in February of 1999 and was more vulnerable than the average person to psychological stresses. He agreed that being informed that your employment had been terminated would be a significant stressor. He said that for a person such as Mr Watson, who was exhibiting features of depression and anxiety, the impact of an adverse life event such as losing a job would be a significant factor. He said he expected there would be an aggravation of the elements of psychological dysfunction.
Dr Fong's view at that time was that the plaintiff:
"is probably unlikely to ever get back to a level of effort tolerance where he could make any return to full time employment. Much of this will also depend on whether he can improve his current poor level of fitness and weight excess, and whether there can be any further improvement in his range of psychological symptoms. Realistically, achieving a target goal of maintaining part time employment of between 20 to 25 hours per week would be a fairly good outcome for this man."
In his evidence‑in‑chief Dr Fong was asked why he had formed that view. He said:
"Well, the various factors I weighed up were that when I first saw him on that first occasion he was already at the 40 month stage of his recovery. So he was already almost three and a half years down the track and despite multiple interventions which had seemed to be fairly appropriate, there had been no sustained improvement in his condition such that he could be functioning at a level compatible with full time employment. I should also add that for a disabled person the demands of employment go up exponentially from part time to full time. So, for instance, going from three hours per day of employment to six hours a day is not – doesn't involve merely a twice level of energy expenditure. It's actually an exponential degree. So that's why for someone in his situation who really appeared to be fairly entrenched within a range of significant disabilities, it seemed unrealistic to expect he could cope with eight and more hours of employment activities per day."
Dr Fong was asked in cross‑examination whether his views as to the plaintiff's capacity for work would be altered if he had known that the plaintiff had been able to work for up to 32 hours a week during 1997. Dr Fong replied
"…that wouldn't sway me from the information I obtained two years later because clearly things could have changed in that time and, really, based on his presentation to me at that point, that would be – my view really was that a target goal of 20 to 25 hours was realistic and I would have been surprised at a higher level of work capacity."
Dr Fong conceded that it would be "possible" for the plaintiff to have achieved more than 20 to 25 hours a week had he not had the accidents. He said it would
"depend on him achieving a substantial improvement in his level of physical endurance, and by that, that would be weight reduction and improving fitness and stamina, and I also think the second factor would be for him to achieve stability of his emotional functioning."
In cross‑examination, Dr Fong was asked whether Mr Watson's depression, coming on six months after the first accident, would be described as a reactive depression to the physical problems that he was suffering after that accident. Dr Fong said:
"I think I would probably need to have more information about the actual onset of the depression because endogenous and reactive depressions can be very similar in their onset and in chronic pain patients we often see the emergence of endogenous depression without any identifiable contributing factors so it's a recognised entity that – certainly chronic pain, persistent chronic pain can trigger off endogenous depression."
Dr Fong explained that "endogenous" refers to a depression that comes on without a precipitating factor. He said it was very difficult to determine whether the plaintiff's depression came from reactive elements or endogenous elements. In other words, it was difficult to say whether the plaintiff's depressive symptoms came from unknown factors or was the result of the pain and trauma of the first accident.
The doctor agreed that it was a reasonable assumption that, had the subsequent accidents not occurred, it was probable that the depressive aspects of the plaintiff's condition would have diminished as his physical symptoms improved. However, Dr Fong added:
"The comment I would make is that in the fourteen months from the onset of his accident, there didn't appear to have been any diminution of his physical symptoms, nor his psychological symptoms. So I don't think it could be extrapolated that there was an automatic improvement over time. … most of the substantial improvement in the musculoskeletal symptoms following trauma occurs within the first couple of years and when it persists beyond that time it is unlikely to resolve."
Dr Fong agreed that, when he saw Mr Watson in February 1999, his psychological symptoms were a very prominent part of his presentation and were consistent with depression. He agreed that it was a fair assumption that, because it was 40 months since the first accident and there didn't appear to be any improvement in the symptoms, the likelihood was that those symptoms of a psychological nature would continue.

Mr Hunt – Report 21 April 1999

Mr Hunt was the next doctor to see the plaintiff.
Mr Hunt has been a clinical neuropsychologist for 26 years. He has a Bachelor of Science and a Master of Arts in clinical neuropsychology from the Melbourne University. He works as a neuropsychologist with the rehabilitation campus of Royal Perth Hospital at Shenton Park, and has a Senior Teaching Fellowship with UWA. He also has a limited private practice in West Perth.
Mr Hunt saw the plaintiff on 16 April 1999, and set out his observations in a report dated 21 April 1999. As were Dr Home and Dr Fong, Mr Hunt was also a defence witness.
Mr Hunt reported that Mr Watson had said he was part dyslexic, but claimed to have been assessed as having an IQ of 140 and upwards and that he could read at 450 words per minute. Mr Hunt reported the plaintiff as saying: "He does not think like he used (sic) and that it was not as fast." The plaintiff told Mr Hunt that his memory was not as good and his learning had "zeroed". In terms of thinking, the plaintiff said that he just can't seem to grasp things any more. He reported having no energy and of being lethargic. Despite this, Mr Watson told Mr Hunt that he goes to work, and indeed had to fight the insurance company to return to work.
The plaintiff also reported that when he became angry he used bad language "which he never did before" and that he no longer uses "high‑faluting words". The plaintiff reported that he had been told that his attention and concentration were not as good as before. He said his reading was now much slower than before. He said that he used to read five books at a time, and had read "Shogun", an 1800 page book, in a night. Mr Hunt reported "His writing was now stated as being a scribble whereas before he was a very pronounced and careful writer and had been very into poetry. Before the accident he described himself as a chess fanatic."
Mr Hunt compared the plaintiff's IQ results with those obtained in 1997. There was no significantly statistical difference. The scores ranged from 88 to 94. Mr Hunt also noted that none of the test results suggested a pre‑morbid IQ significantly higher than obtained and certainly nothing to suggest he had a pre‑morbid cognitive ability around the 140 mark.
Mr Hunt conducted numerous memory tests on the plaintiff and found that his performance was below average in a number of respects. However, Mr Hunt was clearly of the view that the results indicated that the plaintiff's performance was influenced by some non‑organic factors.
Mr Hunt found the only clear signs of abnormality were on tasks assessing his attention and concentration functions. In his evidence, Mr Hunt made it clear that the results weren't consistent with a brain injury at all. He said that he felt that they were much more aligned with a psychological condition.
In his report, Mr Hunt said there is indication of "a personality disorder or psychological condition which appears to involve issues of grandiosity and unrealistic self‑appraisal of his pre‑morbid ability."

Dr Home – Report 7 May 1999

On 7 May 1999, the plaintiff was seen by Dr Home again, who reported his findings in a report of the same date.
Dr Home reported that the plaintiff "says that he drives on most days. He tells me that on occasion he pulls the car over when he becomes agitated at the behaviour of other drivers. His wife volunteers that this occurs up to once each week."

Dr Home reported that the plaintiff "complains that at times his thinking is muddled. He says this is causing him to disorder tasks and in the past he has received assistance from others in ordered tasks. He complains that his short term memory is poor. His wife explains that she often receives phone calls regarding appointments that her husband has missed. He could not recall the name of his motor vehicle (Holden Astra)." (Although it seems that Mr Watson may have been able to recall the name at another point in the interview.)
Dr Home questioned the plaintiff as to why he said he was only able to work 15 or 16 hours a week. Dr Home noted:
"After some deliberation Mr Watson volunteered factors such as his general level of fatigue and energy and his 'mobility', before concluding that he is psychologically intolerant of long hours of work and becomes upset and angry towards the end of the three hour work shift. He says that he finds work 'mentally fatiguing'. His wife Jill is keen to advise that in her view Peter is only able to work with close supervision."
In his evidence, Dr Home said in relation to that passage:
"So I guess there's a sort of an impression there that his mental state was a little worse at that time, although, he did have some difficulty explaining why his memory was quite so poor as he said."
Physically, the plaintiff reported that his condition had improved since the last examination. In his evidence, Dr Home described the plaintiff's brachial plexus lesion as certainly almost resolved. He said the plaintiff had a very slight weakness of the adductor of his left index finger so that his little finger tended to migrate away from the hand. The plaintiff reported some minor symptoms of the left shoulder and neck, and a little bit of tenderness at the AC joint. In his evidence, Dr Home said: "I thought that objectively that he'd made a good recovery although obviously based on his symptoms not a complete recovery." In his report, Dr Home said that the physical findings were of a relatively minor nature.
In relation to mental functions, the plaintiff told Dr Home "that he has continued to suffer periodic symptoms of depression and he tells me that he remains troubled by anger and frustration regarding his symptoms."
Dr Home also noted his suspicion that there was an elaboration of the extent of his cognitive and memory problems. In his report, he identified a number of matters that were incongruous.
Dr Home felt the plaintiff was physically fit to undertake light manual work on a full time basis. He said he was not satisfied that the plaintiff was unfit on the basis of symptoms such as mental fatigue and cognitive difficulties, but that he would be happy to review a formal psychiatric opinion regarding those matters.
In his evidence, Dr Home said:
"So I dare say that there'd be some doubt about his long term, in terms of getting employment, taking account of both the medical factors and also other factors such as his way of presenting himself, and his performance on the job seems to have been affected by stress. … So I would say … it would be quite difficult for him to get open employment without quite a lot of rehabilitation assistance … maybe 12 months of assistance. I don't know exactly."

Dr Febbo – Report 29 June 1999

The next doctor to see the plaintiff, and again still before the second motor vehicle accident, was Dr Febbo. He saw the plaintiff on 12 and 26 June 1999, as outlined in his report of 29 June 1999. Again, Dr Febbo was a defence witness.
Dr Febbo is a consultant psychiatrist who works at Royal Perth Hospital and in private practice. He said he had been a practising and qualified psychiatrist for about 13 or 14 years.
Although reporting that his physical condition had improved considerably, Dr Febbo said that the plaintiff made numerous complaints of physical disabilities involving significant left shoulder pain, pain in the left posterior aspect of his neck, left sided headaches, back pain and weakness in his right arm. Mr Watson told Dr Febbo that he worked three hours a day as a kitchen hand but that he had difficulty reaching up and working on high shelves, holding up a tray, and bending right down.
The plaintiff reported that his mental state had improved considerably, but said that there were aspects that continued to give him difficulties. He said he had difficulty playing chess now and described his concentration as being particularly poor and said that he tended to forget things and "I do things wrongly." He said that he forgets messages unless he writes them down.
The plaintiff described his sleep as improved, but still problematic.
He said his energy levels were low and he found himself becoming tired. He said he still remained somewhat irritable and becomes teary a couple of times a week. His self‑esteem and self‑confidence had improved and he did drive.
He reported that the anxiety symptoms had improved considerably but still occur occasionally up to about once a week (breathing fast, shaking "like a leaf", abdominal churning and vomiting).
The plaintiff reported that on occasions he found "I start to use bad language, become very agitated". He said that he is less tolerant and tends to become more frustrated and angry when he sees that people are idiots. His wife added: "He doesn't suffer fools easily now."
On specific questioning, the plaintiff reported the first incident that had occurred at the hostel. He also described considerable stress related to the death of his mother and the compensation litigation process.
In relation to his background, the plaintiff apparently told Dr Febbo that he had a specific writing difficulty.
Dr Febbo concluded that:
"As with the physical symptoms, his psychiatric symptoms have also improved and by the time of my interviews the picture was in keeping with the presence of some residual depressive symptoms. I was unable to find evidence for the current present of a post‑traumatic stress disorder."
Dr Febbo noted that there were "some unusual aspects" to the plaintiff's presentation.
Dr Febbo expressed the view that the plaintiff's mental state will continue to improve.
None of the doctors who gave evidence saw the plaintiff between the second and the third accidents. The next doctor (of those who were called) to see the plaintiff was Dr Fong on 11 October 1999, the date of the third motor vehicle accident.

Dr Fong – Report 11 October 1999

Dr Fong indicated that the plaintiff reported a significant aggravation of his left arm pain and he was also suffering a severe headache. However, the doctor was fairly confident that he had not sustained any serious structural damage. In relation to psychological issues, Dr Fong stated: "he has predictably decompensated further in terms of his psychological state and in his chronic pain condition." He noted that the plaintiff "presented today in an extremely dysfunctional state, being unable to open his eyes, demonstrating some florid pain behaviours and in being unable to describe his condition coherently."

Dr Home – Report 30 November 1999

Dr Home then saw the plaintiff on 30 November 1999 as set out in his report of the same date.
In his report, Dr Home noted that the plaintiff had told him about some problems he was having at work. Dr Home wrote:
"He says that he had been asked to attend the meeting due to a problem at his work and 'being stood down'. He explained that he had on a previous shift been involved in an altercation with his manager. He says this related to safety issues and his work performance. He says that he himself thinks it was 'all stupidity'. He reports that there were difficulties at work with some staff leaving and the manager making it difficult for him to continue at work."
In giving his evidence, Dr Home was asked what his opinion was, as an occupational physician, of the plaintiff's capacity to gain alternative employment, had he lost his job on 2 August 1999. Dr Home said that there would be some difficulties. He referred to the plaintiff's "fair period of absence" from full time work. He referred to the plaintiff's limited hours at Marvel Loch and said: "He does have a long period of adjustment." He referred to the plaintiff's ongoing minor mild physical problems which were not such as to stop him from working but may have caused him difficulty with heavy manual work. He referred to the psychological problems and suggested the plaintiff would have required close supervision in any further employment. Ultimately, Dr Home said:
"So you'd be looking at probably some rehabilitation programme continuing with close supervision and you would need, I would think, a very caring, understanding or accommodating employer … an employer who was prepared to accommodate someone with a disability. That would obviously diminish his scope for employment at that time."
He was asked whether Mr Watson's capacity to work would be assisted if his wife was also working at the same place, and Dr Home said that it would. He added: "but if not his wife, then he would need some sort of mentor, somebody pretty close to him who could keep an eye on him."
In his report, Dr Home set out the plaintiff's account of the second and third accidents, and recorded the current symptoms reported by the plaintiff. The plaintiff apparently reported mild residual weakness in his right hand and symptoms relating to his left shoulder and the left side of his neck. The plaintiff also reported intermittent low back pain. In his evidence, Dr Home said that he believed that was the first time the plaintiff had mentioned left side and low back pain. In his report, Dr Home also recorded the plaintiff complaining of mild symptoms relating to his left thigh, left knee and headaches.
Accordingly, it would seem that the low back pain experienced by the plaintiff was sustained in the second accident.
Interestingly, Dr Home noted:
"His wife volunteered on several occasions that she believes her husband's memory and concentration to be poor. I did not find him to have any difficulty with his memory or concentration and he appears to have a detailed memory about certain aspects of his progress."
Dr Home expressed the opinion that he did not believe the plaintiff had suffered any significant psychological injuries in the accident occurring on 2 August 1999. He referred to the pre‑morbid history of depression and indicated his view that his current clinical presentation did not reflect depressive illness or if it did it was well controlled. He did not believe the plaintiff was unfit for work as a result of depressive illness.
Dr Home indicated:
"I believe there is an elaborative component to his presentation of disability arising from psychological symptoms. This appears to be directly related to his workers' compensation claims. I believe it is most likely that these symptoms are being used as a tool to avoid a return to work."
Dr Home specifically indicated: "I do believe there is an element of an exaggeration in the extent to which this man is suffering impaired concentration."
Dr Home was not satisfied that there was any physical or psychological reason to certify the plaintiff as unfit for work.
In evidence, Dr Home said that he believed the plaintiff could now work full time from a physical perspective. However, in light of the psychological problems he had manifested during the work trials leading up to that period, and the stress and difficulty he volunteered he was experiencing working beyond 15 hours, Dr Home said that 15 hours would be the starting point "and he'd want to see that he could cope with more hours than that, I guess, through a work trial".

Dr Febbo – Report 28 February 2000

On 23 November 1999 and again on 24 January 2000, the plaintiff was seen by Dr Febbo. Those reviews were the subject of Dr Febbo's report of 28 February 2000.
Apparently the plaintiff began the first interview by describing being involved in a "close call" on the way to the interview when a person had cut them off. He said his wife had hit a pole and scraped the side of the car.
Dr Febbo set out Mr Watson's description of the second accident, including some comments made by his wife. The plaintiff told Dr Febbo that prior to the second accident he was "going to ask for more hours and to transfer." He said that he was seeing his clinical psychological at decreasing frequency (once every three or four weeks) and that they were looking at winding down completely.
The plaintiff also described the third accident in October of 1999.
Dr Febbo set out significant psychiatric symptoms reported by Mr Watson including problems with sleep, energy levels, motivation, teariness, concentration, memory and symptoms of anxiety and stress.
Dr Febbo noted that Mr Watson's responses tended to be in extreme terms. He also noted a difficulty in obtaining some information which, in addition to his findings on the mental state examination, raised a degree of uncertainty in relation to the extent and severity of the symptoms described. Dr Febbo indicated that the presentation was atypical and he had some difficulty at arriving at a diagnosis. That said, he indicated that it appeared that some significant anxiety and depressive symptoms were present.
Dr Febbo wrote:
"Given the concerns I have in relation to my history, issues such as the exaggeration of symptoms described cannot be excluded."
In his evidence, Dr Febbo was asked whether it would be fair to say that there was an element of exaggeration. Dr Febbo said "I don't know, to be honest. I really – I mean, my own impression is that that's not the case because I have seen Mr Watson now a number of times and I don't think that the overall presentation is in keeping with exaggeration."
Noting that the plaintiff's presentations had been somewhat atypical and unusual, Dr Febbo was of the view that his presentation appeared worse both on history and mental examination compared to his examination of him on 29 June 1990.
Dr Febbo noted that prior to the second accident, the plaintiff was not completely well and had some residual depressive symptoms. However, the doctor said that had it not been for the first accident, he would not have expected the degree of deterioration in the plaintiff's mental state after the second accident. Nevertheless he saw the second accident as being the more significant.
When Dr Febbo reviewed the plaintiff in June 1999, he accepted the plaintiff's capacity to work was limited. However, following the second accident, his reported level of incapacity had increased considerably.
Putting aside the concerns that Dr Febbo expressed, his view was that he could not see the plaintiff returning to work as a cook/kitchen hand or in another occupation on a part time basis. However, he felt his long term prognosis could still be positive.

Dr De Tissera

The plaintiff then saw a Dr De Tissera on a number of occasions in the year 2000. Of the doctors called by the plaintiff to give evidence, Dr De Tissera was the first to see the plaintiff. According to Dr De Tissera's report of 25 March 2002, he first saw the plaintiff on 16 March 2000.
Dr De Tissera is a consultant psychiatrist who, for the last 15 years has practised almost entirely with private patients.
In his first report of 9 May 2000, Dr De Tissera set out the plaintiff's account of the first three accidents. He noted the personal history of the plaintiff, including the fact that he was mildly dyslexic.
Dr De Tissera noted that the plaintiff "remained somewhat histrionic … He frequently complained of a loss of memory, but was able to narrate his history, when not under pressure."
Dr De Tissera diagnosed a major depressive disorder since the first accident, which had improved with treatment, but was aggravated following the second and third accident.
In his report of 22 August 2000, Dr De Tissera noted that the plaintiff "still complains of memory impairment and is somewhat histrionic. His memory loss seems to be somewhat selective."
In his report dated 25 March 2002, Dr De Tissera set out the plaintiff's account of the fourth accident. It seems that Dr De Tissera saw the plaintiff on that same day, 20 December 2001. Dr De Tissera noted that there had been progressive improvement since that time.
Dr De Tissera was of the view that Mr Watson remained permanently incapacitated for work, including part time work, in the foreseeable future.
Dr De Tissera believed that his present psychiatric disorder was an aggravation of a pre‑existing depression and panic attacks resulting from the three previous motor vehicle accidents. He said that after the first accident the plaintiff had eventually improved with treatment. However, the second accident aggravated his mental symptoms. The third accident further aggravated his pre‑existing injuries. Dr De Tissera did, however, feel that the plaintiff was still showing signs of improvement.
On 16 March 2005, Dr De Tissera provided his final report.
Dr De Tissera said that the plaintiff had not been capable of either full or part time employment since the second accident. He said he was permanently incapable of employment as a cook or a kitchen hand or indeed of any form of employment. In his evidence‑in‑chief, he said "I wouldn't let him loose on the public." He went on to give his opinion that the plaintiff was incapable of working as a chef, kitchen hand or even a gardener purely on the basis of his psychiatric impairments, putting to one side his physical issues including his obesity.
Dr De Tissera said that, by way of illustration, he would put the plaintiff's level of permanent impairment (psychiatric condition) prior to the second accident at 5 per cent on the Comcare scale. The Comcare guide is an assessment guide produced by the Australian Government to assess people for disability or sickness pensions.
Some extracts from reports of Dr Home were then put to Dr De Tissera. He agreed that the information contained in Dr Home's report of 7 May 1999 suggested that the plaintiff had not fully recovered from the first accident. Dr De Tissera was asked whether Dr Home's report that the plaintiff was psychologically intolerant of long hours at work and became upset and angry towards the end of the three hour work shift was consistent with the other information that the doctor had seen, and that he had based his reports on. The doctor said that was possible.
In cross‑examination, Dr De Tissera said he had not seen the reports of Dr Fong. Later, Dr De Tissera qualified that by explaining that he had a "whole lot of reports here. I have not gone through everything. I selected ones that are more psychiatric ones." He said that he did not have time to read everything.
Dr De Tissera conceded that he either overlooked Dr Fong's report or had not taken it into account. However, Dr De Tissera said he would still stick to his assessment of 5 per cent. He agreed that, at 5 per cent, the Comcare guide described such a person as "despite the presence of one of the following is capable of performing activities of daily living without supervision or assistance". It was put to him that Dr Home had reported the plaintiff's wife as saying that the plaintiff was only able to work with close supervision. Dr De Tissera responded by saying that, while there may have been some restriction in his work capacity, the plaintiff was able to function to some degree without supervision, such as being able to drive a car.
He said all apprentices work under supervision, yet they are fully capable and not disabled. He repeated that work was only one aspect of living, and it was necessary to take a global assessment. He then also discounted what Mrs Watson had said to Dr Home. Dr De Tissera said, "yes, but its circumstantial, isn't it. Mrs Watson was not an employer or the worker. We are talking about a third party who has made an assessment. I wouldn't put any credibility on that." He did concede that Mrs Watson must have been a co‑worker, and, as mentioned below, he conceded it was difficult for him to assess what Mr Watson had been like prior to the second accident.

It is necessary then to discount that amount by 20 per cent for contingencies. Accordingly, the total award under this head of damages is $7,020.

Past gratuitous services

Both Mr and Mrs Watson gave evidence of the level of assistance she was required to give the plaintiff.
Mrs Watson said that immediately after the first accident, she had to help the plaintiff do everything including shaving, getting dressed and washing his hair. That went on for about 18 months until he had sufficiently physically recovered. After the second accident, she again had to help him with his personal hygiene and dressing because he claimed to have trouble with his left shoulder. That "eased off a little bit" by the middle of 2001. However, after the fourth accident, the shoulder injury was apparently aggravated. So again, she said, she had to help him until he had the injections in mid‑2004. She said that since then, she hadn't had to help him with his dressing and personal hygiene.
She said that from 2000 to 2002, the level of assistance she was required to give the plaintiff was much more than three to four hours.
She said that during 2003‑2004, she would have been spending about three and a half to four hours a day.
Mrs Watson said she would presently spend about three hours a day doing things for the plaintiff.
She said that she has to organise appointments for Mr Watson. She said she had to ensure that his prescriptions are up-to-date, that he doesn't run out of anything and that he takes his pills. She said she does most of the vacuuming, the dusting and the cleaning. She said she does all of the gardening and if she needs help, their lodger, Trevor Lowe, will help. She said the plaintiff is "just not interested".
Mrs Watson also drives the plaintiff to medical appointments, tests and assessments.
However, she said that if she asked the plaintiff to do something he would do it "if he's feeling up to it, and mostly he is these days."
Dr De Tissera said that Mr Watson needed ongoing assistance from his wife in the foreseeable future. He said that the plaintiff was unable to manage all of his affairs, and needed her assistance in organising the household, acting as his driver, organising his medical appointments, assuring compliance with prescribed medication, attending to household finances, gardening and the like.
Dr Richardson agreed that Mr Watson would require the ongoing assistance of his wife.
In his report of 18 January 2005, Dr Harper said the plaintiff was dependent on his wife for assistance for "management of his affairs, organisation of the household, acting as driver, organising medical appointments, assuring compliance with prescribed medication, attending to household finance and gardening. This is estimated to take 20 hours per week." However, Dr Harper noted the plaintiff was able to cook, do house cleaning and washing.
The plaintiff's claim under this head of damage is primarily based on the evidence of Mrs Watson as to the amount of assistance she was required to give the plaintiff. However, I do not entirely accept Mrs Watson's estimates of time. Apart from the initial periods of physical incapacity after each accident, what she did boiled down to driving the plaintiff to appointments, organising their finances, organising the plaintiff's medication and organising his appointments. While she said she did most of the cleaning and all of the gardening, it is apparent that that is her choice, rather than his need.
I note that it was put to Mrs Watson that Dr Harper had recorded in his report of 9 June 2003 that the plaintiff's daily activities "include shopping, doing small interest projects, cooking the meals, gardening, walking round the block, collecting antiques and doing some housework." Mrs Watson admitted that was an accurate description of the plaintiff at that time.
In re‑examination, Mrs Watson was asked again to specify what it was she did for the plaintiff. On this occasion, she added that she also had to check on him from time to time. She said she included that in her assessment of the amount of time she spent. While it is understandable that Mrs Watson wants to check on her husband from time to time, there is no evidence that he has a need for that service. Accordingly, I am further fortified in my conclusion that Mrs Watson's assessments of time cannot be relied upon.
In assessing an appropriate award for gratuitous assistance, it is important to bear in mind that what is being compensated is the need of the claimant for the services provided for him or her: Newman v Nugent (1992) 12 WAR 119. However, "no damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury." (Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943.)
I am satisfied that some of the services provided by Mrs Watson would have been provided to the plaintiff in any event "as an incident of an antecedent personal relationship between them": Newman v Nugent (supra) per Ipp J, quoting from Brennan J in Van Gervan v Fenton (1992) 175 CLR 327. It is clear that for much of the relevant period, the plaintiff was able to offer services to his wife in return. While it seems that she didn't always ask him for his assistance, there is no evidence that he was unable to do the work if asked.
It is also necessary to take into account the plaintiff's condition prior to the second accident. Given the evidence of Mr Hunt that his cognitive deficit was equivalent at that time to what it is today, much of the work done by his wife on his behalf would have been required to be done whether or not the subsequent accidents occurred.
Even the plaintiff's need to be driven existed to some degree prior to the second accident. Mrs Watson conceded that the plaintiff did have the occasional nervous episode in the car at that time, but said it wasn't "anything that overwhelmed him." However, Dr Home was told that the plaintiff was having panic attacks prior to the second accident while driving in the car up to once a week.
Further it must also be taken into account that much of the work done by Mrs Watson was done not only for the plaintiff but also for her own benefit and for the benefit of the lodger, Trevor Lowe: Newman v Nugent (supra), per Ipp J, with whom Pidgeon J agreed, at 130.
Counsel for the defendants pointed out that part of Mr Watson's need for assistance related to his non‑accident medical conditions, such as his diabetes and heart condition. While that is so, it is important to bear in mind that Mr Watson's ability to take care of himself was reduced by the second and subsequent accidents. Although he was impaired prior to the second accident, in my view, he was less able to look after his non‑accident related medical conditions as a result of the second and subsequent accidents. As the defendant must take the plaintiff as he finds him, very little allowance should be made for the time Mrs Watson takes assisting him in relation to his non‑accident medical conditions.
Counsel for the defendants also submitted that the work done by the lodger, Trevor Lowe, should also be taken into account. However, while it is clear that Mr Lowe does do some gardening when he is at the house (and not either in hospital or away at work) the fact that that work has been done by someone other than Mrs Watson does not impact in any way on the assessment of the plaintiff's need for assistance.

The second accident

I do accept that, after the second accident, Mrs Watson had to help the plaintiff with his personal hygiene and dressing due to the trouble with his left shoulder. As previously noted, Mrs Watson said that that "eased off a little bit" by the middle of 2001. However, that is contradicted by the medical evidence of Mr Watson's physical limitations after the second accident. For example, as noted above, in his report of 30 November 1999, Dr Home described the plaintiff's physical problems as minor and mild, and not such as to stop him from working full time.
There is simply no reliable evidence of the extent of the plaintiff's physical injuries following the second accident, prior to the time he was seen by Dr Fong on the date of the third accident. However, I have no doubt that the second accident affected Mr Watson psychologically in a significant fashion. That may well have created a need for some physical assistance from Mrs Watson. Again, in the absence of any reliable evidence as to that, it is difficult to quantify. Again I am simply unable to rely on the evidence of Mrs Watson in this regard.

Subsequent accidents

In respect of the third, fourth and fifth accidents, I must take into account the injuries caused by the preceding accidents. As previously noted, in my view, the second accident destroyed what remained of the plaintiff's capacity for work. The third, fourth and fifth accidents merely aggravated the plaintiff's condition temporarily. The aggravation in each case was almost entirely to the plaintiff's psychological condition.
In relation to the third accident, any additional physical aggravation was short‑lived. The medical evidence is clear that, by 30 November 1999, the plaintiff's physical symptoms were mild.
There is no evidence that the fourth or fifth accidents caused any physical injuries, other than the plaintiff's reports of some pain.
However, after each of those accidents, it is likely that the plaintiff's need for assistance increased temporarily due to his psychological state. For example, while he may have been physically able to dress himself, I accept that it is possible Mrs Watson may have needed to stand over him and tell him to do it. Further, while I do not accept the evidence of Mrs Watson as to the extent of his inability to help around the house at various periods of time, I do accept that there were times when his psychological condition was such that he was unable to contribute to the running of the household.
Accordingly, I am satisfied that the plaintiff had a need for additional gratuitous assistance as a result of these accidents. However, any award could relate only to past gratuitous assistance, as in my view the effects of those subsequent accidents are no longer operating on the plaintiff at all.

Awards

In my opinion, like the case of Newman v Nugent (supra), this is not a case where the assessment of the appropriate award for loss of gratuitous services can be made on an arithmetical basis.
Accordingly, it is necessary to simply do the best that I can.
It is also appropriate that any award be discounted by 20 per cent to take account of the possibility that the plaintiff's pre‑existing condition would have deteriorated to the point where he needed such services in any event.
Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") limits the damages that may be awarded for gratuitous services. Section 3D(3) states:
"(3) If the services are provided or to be provided for not less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated on a weekly basis at the rate of —
(a)the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter; or
(b)if the Australian Statistician fails or ceases to make the estimate referred to in paragraph (a), the amount fixed by, or determined in accordance with, the regulations."
Section 3D(5) states:
"(5)If the services are provided or to be provided for less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated at an hourly rate of one-fortieth of the weekly rate that would be applicable under subsection (3) if the services were provided or to be provided for not less than 40 hours per week."
Section 3D(6) states:
"(6)If the amount of damages that may be awarded under subsection (3) or (5) is Amount D or less, no damages are to be awarded for the value of the services provided or to be provided."
In this case, the services provided (and to be provided) are significantly less than 40 hours per week. Accordingly, the amount of damages awarded for their value is limited by s 3D(5) to a pro rata percentage of (in essence) the average weekly wage. In my view, that subsection applies to any award for gratuitous services of less than 40 hours per week, irrespective of whether the calculation is done arithmetically or globally. Therefore, s 3D(6) limits the amount of damages in this case.
Accordingly, what must be determined is what is "the amount of damages that may be awarded under subsection … (5)" for the purposes of this section. Firstly, it seems clear that the section is referring to both past and future services. Accordingly, the total of past and future services should be considered in determining whether the minimum threshold has been met. Secondly, as a matter of logic it would seem that interest should not be taken into account in determining whether the amount has exceeded the threshold. Finally, in my view, deductions for contingencies should not be taken into account before considering whether the threshold has been met. However, it is unnecessary to decide those issues in this case, as, even on the most favourable interpretation of the provision for the plaintiff, the threshold would not be met in respect of the third, fourth and fifth accidents. Further, even on the most favourable interpretation for the defendants, the threshold would be met for the second accident.
Were it not for s 3D, I would have made the following awards:
Second accident $15,000.00
Less 20 per cent (contingencies) = $12,000.00
Interest @ 3 per cent x 6 years =     $2,160.00
Total award  $14,160.00
Third accident $2,000.00
Less 20 per cent (contingencies) = $1,600.00
Interest @3 per cent x 5.8 years =    $278.40
Total award  $1,878.40
Fourth accident $2,000.00
Less 20 per cent (contingencies) = $1,600.00
Interest @ 3 per cent x 3.7 years = $177.60
Total award  $1,777.60
Fifth accident $1,000.00
Less 20 per cent (contingencies) =   $800.00
Interest @3 per cent x 1.6 years =   $38.40
Total award  $838.40
Due to the operation of s 3D, I am unable to make an award in respect of the third, fourth and fifth accidents. Accordingly, the only award for past gratuitous services is in respect of the second accident, in a total amount of $14,160.

Future gratuitous services (second accident)

For the reasons I have expressed, the plaintiff is only entitled to an award for future gratuitous services in respect of the second accident. I have previously found that he is not presently suffering from any symptoms as a result of the third and subsequent accidents.
In relation to future gratuitous services, there is no evidence that the plaintiff will have a reduced life expectancy. Nor do I accept the defendant's submission that the allowance for future gratuitous services should be limited to no more than three years. In my view, the plaintiff will require the assistance of his wife for the rest of his life. However, I am again required to take into account the matters referred to above. In particular, I have regard to the fact that the plaintiff had a pre‑existing condition which, in my view, would have required his wife's assistance on a permanent basis in any event. I also have regard to the fact that the plaintiff is now able to substantially contribute to the operation of the household, but the wife simply chooses not to engage his assistance to the extent to which he is able to provide it.
Again, this is not a matter capable of an arithmetic calculation. I consider that an appropriate award for future gratuitous services is $20,000 (in respect of the second accident). In selecting that figure, I have had regard to the fact that the plaintiff will have the benefit on that sum now. However, as with the award for past gratuitous services, it is appropriate to take into account the possibility that the plaintiff's pre‑existing condition would have deteriorated to the point where he needed gratuitous services to this extent in any event. I accordingly discount this award by 40 per cent, leaving a total of $12,000.

Travel expenses

The evidence in relation to the travel expenses was less than fulsome. For much of the trips, there is no evidence of the distances required to be travelled. Counsel for the defendants submitted that the plaintiff's failure to prove the distances meant the claim should be disallowed in its entirety. I do not accept that submission. There is no doubt that the plaintiff was required to attend the various doctors at various times. Despite the inadequacy of the evidence as to the actual travel expenses incurred, I am required to do my best to place a value on the loss (see for example, Chelini v Northern Territory Port Authority (1976) 12 ALR 519).
Counsel for the defendants further submitted that the plaintiff should not be entitled to recover the travel expenses for attendances on medical practitioners who were not called as witnesses. I do not accept that submission. There is ample evidence that attendances on some of those doctors were required and were associated with the injuries sustained by the plaintiff in the second and subsequent accidents.
However, I accept the submission made by counsel for the defendants that it is necessary to take into account the fact that some of the attendances involved health issues unrelated to the injuries caused by the second and subsequent accidents. That will similarly be so for attendances upon Dr Richardson in the future.
Doing the best I can, I would award a global sum in respect of both past and future travel expenses in the amount of $3,000 in respect of the second accident. I would award $100 in respect of past expenses in respect of each of the third, fourth and fifth accidents.

Past pharmaceutical, medical and psychiatric costs

In the plaintiff's schedule of damages dated 14 June 2004, the plaintiff's claim for past medical and pharmaceutical expenses was in the sum of $500 for pharmaceutical costs. During the trial, Mrs Watson gave evidence of the medication she was required to purchase for the plaintiff. A printout from the Ferndale Pharmacy was tendered as an exhibit.
The plaintiff filed a fresh schedule of damages dated 29 April 2005. That schedule did not include any claim for past pharmaceutical costs. In the defendants' supplementary submissions on damages dated 6 May 2005, the defendants submitted "The list of pharmaceutical expenses contained in the Ferndale Pharmacy printout tendered in evidence contains many items which are, in the defendants' submission, in issue." In the plaintiff's reply, no reference is made to past pharmaceutical expenses. This makes the assessment of the appropriate award somewhat challenging. It is not possible to calculate the cost of the relevant medications over that period, as it is not known which have been paid by Medicare or the Insurance Commission of Western Australia. For instance, simply calculating the cost of the Stilnox, which was apparently $21 per month, and which was prescribed at least as early as February 2001, would give a total in excess of $500. While I accept that I am required to compensate loss even if it cannot be quantified, and even if the plaintiff has failed to adduce evidence that would have otherwise been expected, it is for the plaintiff to prove his case. Further, there is no evidence as to which of the accidents the $500 is said to relate. Given that I am required to assess damages in respect of each accident individually, it is simply not possible for me to be satisfied that there was any loss in respect of any of those accidents. Accordingly, I decline to make an award under this head of damage.

General damages

This head of damages is to compensate for, relevantly, pain and suffering, loss of amenities of life, loss of enjoyment of life and bodily or mental harm.

Section 3C of the Act governs the amount of damages to be awarded under this head. The approach to be taken is now well settled: Wylde v Arriaza (1997) 25 MVR 539. Ultimately, the task is to find the right proportion between a most extreme case and the case under review.
The maximum that may be awarded under the Act is currently $268,000. If the amount of non‑pecuniary loss is below $13,500, damages may not be awarded under this head.
In my view, the Act requires me to assess the non‑pecuniary loss in respect of each accident separately. It is not permissible to aggregate the amounts in order to exceed the threshold amount.
Comparing what may be "a most extreme case" with the injuries suffered by the plaintiff in the second accident, in my view the appropriate percentage is 30 per cent. While the plaintiff was already significantly disabled prior to the second accident, the second accident robbed him of any capacity for work permanently. For a man who began life with so much motivation, I accept this would be a very cruel blow. The plaintiff also suffered and continues to suffer from significant psychological distress. Accordingly, I would award $80,400 under this head. I note that this figure is more than the sum of Amount B and Amount C, so I am not required to reduce it under the Act.
In relation to the third accident the plaintiff didn't even mention it to Dr Febbo when he saw him the following month.
In relation to the fourth accident there were no physical injuries. However, Dr De Tissera saw the plaintiff the same day and said the plaintiff complained of aggravation of shoulder and neck pain and was in a state of shock.
The medical evidence in relation to the fifth accident was that two days later, the plaintiff's main physical symptom was a pain in his left achilles tendon, and five days later he was "feeling okay". Three weeks after that, Dr Richardson said the plaintiff seemed to be "recovering well from his recent accident."
It is unnecessary to further repeat the findings I have already made. While the accidents caused little or no physical injury, each caused significant psychological stress to the plaintiff. However, I find that the plaintiff's non‑pecuniary loss is less than 5 per cent in each case. Accordingly, I am unable to make an award under this head of damages in respect of those accidents.

Summary

Accordingly, the plaintiff is entitled to the following awards:

Second accident

Past economic loss  $56,298.00
Interest on past economic loss  $1,689.00
Future economic loss  $69,586.99
Past loss of superannuation benefits  $4,011.00
Interest on past loss of superannuation benefits                   $120.00
Future loss of superannuation benefits  $6,020.00
Future pharmaceutical expenses  $14,288.00
Future medical costs  $13,445.00
Future psychiatric costs  $7,020.00
Past gratuitous services  $14,160.00
Future gratuitous services  $12,000.00
Travel expenses  $3,000.00
General damages  $80,400.00
Total$282,037.00

Third accident

Past travel expenses $100.00

Fourth accident

Past travel expenses $100.00

Fifth accident

Past travel expenses $100.00