Webb v Edwards

[2018] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:

Webb v Edwards [2018] NSWDC 67

Hearing dates:

29, 30, 31 January; 1, 2, 5, 6 February 2018

Date of orders:

28 March 2018

Decision date:

28 March 2018

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff in the assessed amount of $2,076,707.88;

 

2. After applying the agreed apportionment of 20 per cent on account of the plaintiff's contributory negligence, judgment for the plaintiff in the amount of $1,661,366.20;

 

3. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

 

4. The exhibits may be returned;

 5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – personal injuries sustained in a motor vehicle accident – liability issues agreed; EVIDENCE – assessment of credibility and reliability of testimony; EXPERT EVIDENCE – limited utility of expert evidence to attack credit of plaintiff – aspects of expert evidence not compliant with UCPR r 31.27(1)(c) and the Expert Witness Code of Conduct: Sch 7 cl 5(1)(c); DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5D
Civil Procedure Act 2005, Sch 7
Evidence Act 1995, s 60, s 135
Motor Accidents Act 1988, s 79A
Motor Accidents Compensation Act 1999, s 126, s 131, s 136
Uniform Civil Procedure Rules 2005, r 31.27, r 31.23
Workers Compensation Act 1987, s 151L

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833
Barak Pty Ltd v WTH Pty Limited Trading as Avis Australia, Barrett J, Supreme Court of NSW, unreported, 22 July 2002
Brown v Lewis [2006] NSWCA 87
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Burnicle v Cutelli [1982] 2 NSWLR 26
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Glen v Sullivan [2015] NSWCA 191
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Larson v Commissioner of Police [2004] NSWCA 126
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Manly Municipal Council v Skene [2002] NSWCA 385
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Timoney Technology Limited & Anor v ADI Limited [2007] VSC 402
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

Texts Cited:

Blakiston’s Gould Medical Dictionary, Fourth Ed, McGraw Hill, 1979
Dorlands Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1994
Oxford Medical Companion, edited by Walton J, et al, Oxford University Press, 1994
Smyth, R : “What do Trial Judges cite?” (2018) 41(1) University of New South Wales Law Journal

Category:

Principal judgment

Parties:

Tony Webb (Plaintiff)
Lyndon John Edwards (Defendant)

Representation:

Counsel:
Mr C Hickey (Plaintiff)
Mr A Black SC (Defendant)

  Solicitors:
Kingston Swift (Plaintiff)
McInnes Wilson Lawyers (Defendant)

File Number(s):

2013/295410

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [4]
Issues	[5] – [9]
Summary of findings	[10]
Procedural matters	[11] – [16]
Related proceedings	[17]
Evidence overview	[18] – [19]
Credit	[20] – [74]
Facts	[75] – [330]
(1) Plaintiff’s pre-accident background	[76] – [79]
(2) Plaintiff’s pre-accident work history	[80] – [85]
(3) Injuries and initial treatment	[86] – [91]
(4) Subsequent medical and allied reviews	[92] – [100]
(5) Diagnostic conclusions of treating doctors	[101] – [111]
(6) Findings on conflicting medico-legal opinions	[112] – [278]
Principles that guide the analysis	[113] – [117]
Opinions of the plaintiff’s treating doctors	[118] – [136]
Dr Voss’ opinions	[137]
Dr Davis’ opinions	[138]
Dr Boyce’s opinions	[139]
Dr Klug’s opinions	[140] – [158]
Dr George’s opinions	[159]
Dr Anderson’s opinions	[160] – [163]
MAS Assessor’s opinions	[164] – [166]
Dr O’Neill’s opinions	[167] – [183]
Dr Haik’s opinions	[184] – [207]
Dr Schutz’s opinions	[208] – [258]
Dr Langeluddecke’s opinions	[259] – [278]
(7) Disabilities that remain	[279] – [322]
(a) Alleged malingering, exaggeration, embellishment	[282] – [286]
(b) Alleged inconsistencies in plaintiff’s presentation	[287] – [289]
(c) Right chest wall pain, whether neuropathic	[290] – [299]
(d) Right arm tremor and weakness on exertion	[300] – [302]
(e) Psychiatric illnesses affecting the plaintiff	[303] – [311]
(f) Plaintiff’s faecal incontinence	[312] – [317]
(g) Other disabilities	[318] – [322]
(8) Work effects	[323] – [328]
(9) Domestic effects	[329]
(10) Mitigation	[330]
Assessment of damages	[331] – [396]
Plaintiff’s remaining life span	[332]
Vicissitudes	[333] – [338]
Non-economic loss	[339] – [353]
Past loss of income	[354] – [369]
Fox v Wood	[370]
Future economic loss	[371] – [385]
Past loss of superannuation	[386]
Future loss of superannuation	[387]
Future treatment	[388] – [394]
Past out-of-pocket expenses	[395]
Summary of damages assessment	[396]
Apportionment for the plaintiff’s contributory negligence	[397]
Disposition	[398]
Costs	[399]
Orders	[400]

Nature of case

1. The plaintiff, Mr Tony Webb, is aged almost 34 years. He was injured in a motor vehicle collision on 15 May 2007, when he was aged 23 years. He brings these proceedings in negligence against the defendant, Mr Lyndon Edwards, claiming damages for injuries he sustained in that collision. The proceedings are governed by the Motor Accidents Compensation Act 1999 (“MAC Act”) and the Civil Liability Act 2002 (“CL Act”).

Factual background

2. At about 7.05am on Tuesday 15 May 2007, the plaintiff was driving his vehicle on the Mitchell Highway, from his home at Narromine to his work at Dubbo, NSW. As he was negotiating a left bend in the roadway he encountered a large prime mover being driven in the opposite direction by the defendant, whose vehicle was towing an oversized agricultural scarifier that straddled the middle of the roadway partly on the incorrect side.

3. Despite attempts by the plaintiff to take evasive action by veering to his left, a side-swipe collision ensued. As a result, he sustained serious bodily injuries. As a consequence, he has ongoing physical and psychological disabilities that must be assessed for the impact those matters have had on the plaintiff’s life, and on the loss of the amenity of his life. A consultant psychiatrist, in a medical assessment, has described the plaintiff’s post-accident situation as being a most complicated case: Exhibit “2”, p 219.

4. The following copy photograph, which forms part of Exhibit “B”, provides some indication of the severity and frighteningly horrific nature of the collision. It shows the extent of the damage to the driver’s side of the plaintiff’s vehicle. It was necessary to use mechanical implements to cut the plaintiff free from that wreckage: T13.8.

Issues

5. The liability issues have been agreed. The plaintiff is to receive a verdict in his favour but his entitlement to damages must be reduced by 20 per cent on account of his own contributory negligence.

6. The essential issues that remain to be determined in the proceedings concern the credibility and the reliability of the plaintiff’s testimony, and that of his partner of 11 years, Ms Tabitha Triplett, the determination of factual matters concerning the effects of the accident on the plaintiff, and the assessment of the quantum of the plaintiff’s damages.

7. The assessment of the plaintiff’s entitlement to damages requires a consideration of selected and edited portions of numerous and extensive segments of video surveillance footage of the plaintiff’s activities over the period 2010 to 2017, a consideration of the clinical diagnoses made by the plaintiff’s treating doctors, and the resolution of conflicting medico-legal opinions concerning the nature, the extent, and the prognosis, of the plaintiff’s ongoing accident-related problems.

8. Notwithstanding clinical assessments made by the plaintiff’s treating doctors, and which support his case, various suggestions emerged within the medico-legal opinions relied upon by the defendant, to the effect that the plaintiff was malingering, embellishing the extent of his problems, or exaggerating the effect of those problems. The reasonableness and the appropriateness of those suggestions must be evaluated and reconciled against the evidence as a whole.

9. After those matters are reconciled, the essential damages questions that must be determined are, first, whether there are any relevant inconsistencies in the plaintiff’s presentation, secondly, whether the plaintiff’s complaint of residual chest wall pain has a physical or neurological basis; thirdly, whether the claimed exertion tremor in the plaintiff’s right hand and arm is accident-related; fourthly, whether the accident has left the plaintiff with psychiatric illnesses comprising post-traumatic stress disorder, major depression, an adjustment disorder, anxiety, panic attacks and suicidal thoughts; fifthly, whether the plaintiff suffers episodic involuntary faecal incontinence as a consequence of the accident, and the related question of whether that problem is due to the plaintiff’s experience of panic attacks; and sixthly, the effect of those matters on the plaintiff’s past and future earning capacity, and his future treatment needs. My findings on those matters appear under those headings as set out in these reasons.

Summary of findings

10. In summary, for reasons that will be made plain, I have accepted the credibility and reliability of the evidence of the plaintiff and his partner. I have rejected the criticisms that certain of the defendant’s experts have levelled at the plaintiff concerning his probity and as to the reasonableness of his complaints of disability, where various assertions were made by some experts to the effect that the plaintiff was malingering, exaggerating or embellishing his problems. For the reasons given, I have accepted the plaintiff’s case on each of those issues. I have assessed the plaintiff’s damages at $2,078,707.88 before applying the agreed apportionment of 20 per cent for contributory negligence. The plaintiff is to have a judgment in his favour in the apportioned sum of $1,661,366.20. The length of these reasons reflect the voluminous nature, extent and content of the evidence, and the nature of the issues that consequently emerged for consideration.

Procedural matters

11. Before setting out my reasons for those conclusions, it is necessary to review some aspects of the procedural background of this matter, and some related proceedings.

12. These proceedings were filed on 1 October 2013. Between that date and the commencement of the hearing on 29 January 2018, there had been some 28 interlocutory listings of the matter. These were, variously, for case management, pre-trial conferences, mentions, directions hearings and applications, including two unsuccessful applications made by the defendant, on 30 November 2017 and 29 January 2018, at which times the List Judge refused applications to vacate the hearing dates for a five day hearing set to commence on 29 January 2018.

13. Those hearing dates were set and allocated at a call over on 5 May 2017. This was in circumstances where, on 1 March 2017, at an interlocutory listing, the issues of liability and quantum were ordered to be tried separately, and on 12 April 2017, a consent judgment on liability was entered in favour of the plaintiff, noting there would be an agreed reduction of 20 per cent from the plaintiff's assessed damages on account of his contributory negligence. The issue of damages remains to be assessed.

14. The basis of the most recently refused application to vacate the hearing dates was that the defendant wished to pursue an administrative review of the latest Medical Assessment Service (MAS) assessment of the plaintiff, dated 4 December 2017, which certified the plaintiff to be the subject of a 22 per cent whole person impairment, which had the effect of affirming the plaintiff’s entitlement to claim damages for non-economic loss. An application for a review of that determination, has now been filed, and it will take some uncertain period of time for that process to be completed.

15. In the meantime, in the circumstances where the substantive hearing was required to proceed to a conclusion, I considered that it would be unreasonable, unjust, and needlessly burdensome for the parties, and for the Court, to withhold my reasons for assessing the plaintiff’s existing entitlement to damages in respect of the initiating events that occurred almost 11 years ago, in proceedings that were filed almost 5 years ago, where it must be recognised that timely completion of litigation is an important individual and public interest objective: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [23] – [25].

16. In those circumstances, in accordance with the indication given to the parties to that effect, and to which they have concurred (T178.29; T179.16), it was agreed that I should proceed to assess all of the claimed heads of damage and publish these reasons for decision on those matters. In those circumstances the rights of the parties to pursue other potential avenues and remedies would not be unjustly hindered by that course provided the non-economic loss component of the damages was stayed pending further orders. However, on 26 March 2018, the parties informed the Court that on 20 March 2018, the application for a further MAS review had been dismissed. Accordingly, a stay was no longer required on that account.

Related proceedings

17. A related action brought by the worker’s compensation insurer against the present defendant was heard concurrently with this action. In that related action, the insurer was seeking recovery of worker’s compensation and allied payments incurred in respect of the plaintiff’s injuries. Those payments totalled $848,876.57: Exhibit “K”, Tabs B and C. On the fifth day of the trial, those related proceedings were resolved by the filing of consent orders which no longer require any further consideration.

Evidence overview

18. The only oral evidence called on factual matters came from the plaintiff and from his partner. The defendant required the attendance of two assessing psychiatrists, Dr Peter Klug and Dr Peter Anderson, for cross-examination on the content of their respective reports. The defendant called no oral evidence, either on factual matters, or on the medical issues, and instead, relied on documents, surveillance footage, and medical reports.

19. Voluminous documentary material, comprising several thousand pages, including extensive medical and allied reports, and certificates, required consideration. That material, which was assembled and tendered in organised bundles, will be referred to where it becomes relevant to do so. Some of the material was duplicated in the bundles produced by the parties. Where it is relevant to cite a source of evidence within those bundles, I will not cite the duplication unless the context so requires that course.

Credit

20. Before addressing factual matters, in view of the nature and the extent of the defendant’s attack on the credibility of the evidence of the plaintiff and on the credibility of his case, it is necessary to first address, at some length in view of the matters raised, questions concerning credit. My conclusions on those matters are set out in the paragraphs that immediately follow.

21. The plaintiff’s evidence in chief was predominantly given in a matter of fact, flat, unemotive and detached manner. However, he became visibly upset and tearful when recounting his disabilities, and the effect the accident has had on his life, including his multiple post-accident attempts at suicide. He frequently held his face in his hands when speaking about those matters, which caused him obvious emotional distress and discomfort.

22. In the course of cross-examination of the plaintiff on the content of extensive surveillance footage that was shown in court during the afternoon of the second day of the hearing, the plaintiff unfortunately experienced an episode of faecal incontinence, which required that he withdraw from the court room in order to deal with the consequences. An aspect of the plaintiff’s claim of disability is that his faecal incontinence occurs at random, probably in association with panic attacks, and is due to the effects of the subject accident. Whilst he was absent from the court room to attend to that matter, debate centred around the admissibility of some medical evidence relied upon by the defendant.

23. In those events, during the course of that argument, the plaintiff re-entered the court room whilst in an obviously upset state. In those circumstances, he swiftly approached Mr Black SC, in a dramatic and aggressive manner, and stated:

“WITNESS: Just seeing what I've got to deal with Mr Black. Do you see that? You sit in that all day and see how I feel. I want to fucking kill myself mate. That's all I want to do. You don't fucking understand.

HIS HONOUR: All right Mr Webb just go outside.”

After the plaintiff had left the court room, the following notation was then recorded in the transcript to describe those events:

“Officer would you just see to Mr Webb just make sure he's calm. The record should be noted that the proceedings have been interrupted by the plaintiff's re entry into the Court room at 2.27pm. He approached Mr Black who was on his feet responding to me and placed what appeared to be a used diaper on Mr Black's brief and then used threatening language and gestures in an agitated state. The plaintiff has now left the Court room and perhaps Mr Hickey your instructing solicitor should go out and find out what's going on.”

[T59.5 – T59.21]

24. In the course of the events described in the preceding paragraph, in an emphatic gesture, the plaintiff proceeded to deposit a soiled incontinence pad onto Mr Black’s briefing papers on the bar table. He also made some dramatic and threatening hand gestures, including whilst holding his spectacles, in very close physical proximity to Mr Black’s face and neck.

25. The plaintiff later apologised for his outburst, which, as appears from the evidence, needs to be considered in the context of his overall psychological state, which was noted to include anger management issues, and a tendency to “snap”. The matter that had apparently caused the plaintiff to become so upset was his unpredictable faecal incontinence, which according to the undisputed evidence of Dr Klug, is caused by his accident-related panic attacks: Exhibit “C”, Tab 1, p 25; T140.18 – T141.30.

24. The defendant’s cross-examination of the plaintiff as to his credit appears to have been in part founded upon a number of sceptical expressions of doubt made about him and about his reported symptoms, and regarding his motives in connection with this claim, as appeared in various medico-legal reports. Those comments were from Dr Robert Haik, a now retired psychiatrist, Dr Pauline Langeluddecke, a clinical psychologist, and Dr Edward Schutz, a general surgeon. Those reports were relied upon by the defendant.

25. The defendant also relied upon an extensive collage of edited surveillance footage obtained in the course of observation of the plaintiff’s day-to-day activities on various dates between 2010 and 2017. It is common ground that of the total of about 7 hours of recorded video surveillance material that was available to the defendant, a shorter edited version, lasting some 4 hours, was selected by the defendant’s solicitor to be presented and tendered in the proceedings: Exhibit “7”. I have only viewed that condensed version of the video. There is no dispute that the unseen edited remainder of that material has no potential for any adverse bearing on the plaintiff’s case.

26. The defendant’s solicitor also prepared a document described as a surveillance summary as an aide to the viewing and interpretation of the surveillance video material: MFI “2”. As some descriptions within that document were referred to at various times in the course of the viewing of the video evidence, and since those references appear in the transcript of these proceedings as commentary, I considered that the document should be marked as an exhibit: Exhibit “8”.

27. That said, I consider that Exhibit “8” should be read with the qualification that some of the interpretative text contained within that document, which purported to describe the plaintiff’s observed activities, comprised some exaggerated or overstated emphasis, which could possibly give the reader the misleading impression that the described actions of the plaintiff were less benign than they were in fact. There is no suggestion that there was a deliberate attempt on the part of the solicitor for the defendant to mislead by such misdescriptions.

28. Some examples of such misdescriptions referred to the plaintiff as “hanging” off a fence, where he was simply resting his hand on a high fence; the observation that he was pushing a “pram” rather than a light stroller; that he was seen to “drag” suitcases, rather than simply wheeling them by pulling on a handle, without much apparent effort; that he was seen to “bend” rather than leaning forward whilst vacuuming the interior of his vehicle; that he was carrying a “large dog” whereas the dog seen in the video surveillance material was not large; that he was seen to “carry” rather than lift and place an object into the boot of his vehicle; and that he was seen to “grab” rather than to simply take hold of, an airport trolley.

29. In the context of the evidence as a whole, I considered that the video surveillance evidence did not constitute a relevant contradiction of any material detail of the plaintiff’s evidence, or the case sought to be made on his behalf. In my assessment that material did not serve to detract from the credibility, reliability or the truthfulness of his evidence. It did not contradict the psychiatric diagnoses made by the plaintiff’s treating doctors, nor did it materially contradict the medico-legal opinion evidence tendered in the plaintiff’s case.

30. The defendant fairly conceded that the video surveillance footage did not demonstrate that the plaintiff was not suffering from post-traumatic stress disorder, or depression. That footage did not demonstrate that he was not prone to experiencing panic attacks or episodes of faecal incontinence. The defendant also conceded that the video material did not show that the plaintiff was able to work in a job of the kind in which he was employed before the accident: T164.22 – T164.31. Similarly, the defendant was not able to point to any medical evidence to suggest that the plaintiff’s complaint of episodic faecal incontinence was unrelated to the accident: T168.46 – T169.20.

31. I have concluded that the medico-legal opinions in this case must be viewed in the perspective of the broad pattern that emerges from the factual content of the literally hundreds of diagnostic, treatment and work fitness assessments that the plaintiff has consistently attended, between his initial hospitalisation on the day of the accident, and up until the weeks before the hearing.

32. The extensive factual chronology of those consultations and assessments will be laid out in the course of my reasons as an aide to the analysis of the medical issues, and as a prelude to stating reasons for my findings on the critical areas of conflict in the evidence, including expert evidence, as to the nature and the extent of the plaintiff’s residual accident-related problems.

33. In light of findings I have made on the preponderance and the detail of the medical evidence, and for reasons that will be made plain in the course of my reasons that analyse the conflicting medico-legal opinions, and on reviewing the medical and allied evidence as a whole, I consider that the video surveillance material and the medico-legal opinions as relied upon by the defendant, did not provide persuasive evidence to suggest the plaintiff was not affected by the accident as he has claimed. That is so particularly as to his described experience of chest pain, his psychological symptoms, his faecal incontinence, and his unfitness for work.

34. I am reinforced in my views about the video surveillance material by the comment made by the MAS Assessor, Dr Mathew Jones, a psychiatrist, who stated that the considerable amount of surveillance material made available to him at the time of his assessment was not informative from the psychiatric perspective: Exhibit “6”, p 219.

35. The defendant drew upon the content of the video surveillance footage and the tendered medico-legal reports to suggest to the plaintiff that he was exaggerating the effect of the accident upon him. The plaintiff denied that proposition: T82.33. In that regard, the plaintiff also denied that he was able to comfortably use a vacuum cleaner at his home (T71.13 – T72.15); he denied that he was entirely comfortable shopping (T72.26 – T72.48); he denied he was able to carry heavy items in his right hand for more than a very short period of time (T72.50 – T73.1); and he denied he was able to lift his infant daughter comfortably (T73.25 – T73.29).

36. In assessing the plaintiff’s evidence generally, and on those matters in particular, the video surveillance material, even as commented upon by the defendant’s medico-legal experts, did not persuade me that the plaintiff’s cited denials should be rejected, and I did not consider that video surveillance material to be a sufficient basis upon which to either find or to infer that the plaintiff gave untruthful evidence in making those denials, or in his account in which he described how he is affected by pain.

37. The plaintiff denied the generalised proposition that the video surveillance material that he was asked to view suggested that he was far more capable of physical activity than was evident from the way he talked about himself when he had seen “the doctors”: T88.50 – T89.4. I have accepted as truthful, his denial of that proposition.

38. The plaintiff made fair concessions when asked about some of his activities, such as being capable of doing some “just light welding”: T92.4. However, it was not suggested that he could sustain that activity, such as in an employment situation.

39. I have accepted the plaintiff’s denial to the effect that he could not fulfil the role of a part-time cleaner in a shopping centre because he would not be able to mentally handle such a position: T93.14 – T93.25. In light of the medical evidence that I have accepted, I considered that the plaintiff’s answer in that regard was not inherently or glaringly improbable.

40. I have also accepted the plaintiff’s denial (at T98.47 – T99.11) of the proposition that he could work in a position in a spare parts facility serving the public. His denial of that suggestion was based on his belief that he gets muddled and mixes things up, and because he struggles to talk to people when confronted. An overall reading of the medical evidence does not reasonably suggest that his evidence in that regard was improbable or unlikely to be true.

41. The plaintiff was challenged on his evidence to the effect that his problems with faecal incontinence began straight after the accident. In the course of that challenge it was suggested to him that he had first complained to a doctor about faecal incontinence in 2011. He reconciled his reporting of such problems in 2011 by stating that was the time “when it started to get really bad”, so he could not control it: T85.27 – T85.40. In light of his stated and his assessed memory problems, and in reading the medical evidence and its chronology as a whole, I considered that his evidence to the effect that he had thought he had in fact complained of such problems beforehand (T87.1 – T87.21) should not be discounted or construed against his credit as a witness.

42. I considered this to be so especially where the complete clinical records were not in evidence, and in light of the medical documentation in Exhibit “L”, which records the plaintiff’s abdominal injuries and the evolution of his accident-related paralytic ileus, and his bowel problems between 18 May 2007 and 31 May 2007, when read alongside the plaintiff’s evidence he was having bowel problems in the form of faecal incontinence straight after the accident: T83.15.

43. The sequence of the evolution of the plaintiff’s bowel problems in that regard was first, bowel obstruction followed by treatment with enemas, and ultimately, a colonoscopy. He then had bowel difficulties due to his need to take analgesic medication, and subsequently he experienced episodic faecal incontinence. In my assessment, it is not necessary to seek to ascribe a precise physical or a pathological cause for that problem, where the unchallenged and not otherwise improbable medical evidence is that the plaintiff’s faecal incontinence is probably associated with his experience of panic attacks: Exhibit “C”, Tab 1, p 25. In that regard, I have accepted that since the subject accident, the plaintiff has relevantly experienced such panic attacks, including when anxious about his problems or when he becomes anxious about the consequences of the accident (Exhibit “C”, Tab 1, p 3), where these are ever-present phenomena for him.

44. In cross-examination, it was specifically suggested to the plaintiff that he had intentionally exaggerated his answers on memory testing by Dr Langeluddecke, so as to pretend to be more disabled than was really the case. I have accepted the plaintiff’s denial of that challenge to his credit: T87.23 – T88.6.

45. I considered that Dr Langeluddecke’s opinion, in which she made criticisms of the plaintiff’s memory performance, which in my view, must be read down in light of the plaintiff’s pre-accident diagnosis of having a weakness in the visual memory area, along with his history of limited concentration span, and issues with his auditory memory, and learning difficulties: Exhibit “2”, pp 3 – 6. Dr Langeluddecke did not appear to have accessed that pre-accident material when she expressed her views on the credibility of the plaintiff’s responses to the memory testing she administered to him.

46. Dr Langeluddecke’s report did not suggest that she had provided the plaintiff with a fair opportunity to comment on the serious allegation which she raised about his probity, and, which in reality, amount to an allegation of fraudulent behaviour on his part. For reasons that will become clear in my analysis of Dr Langeluddecke’s report, I considered that her reasoning did not properly or reliably support a challenge of that kind to the plaintiff’s credit.

47. The challenge to the plaintiff’s credit, as outlined at paragraph [39] above, where the generalised but denied proposition was put to him that he presented himself and portrayed his problems to examining doctors as being less capable of physical activity than was the fact (T89.1 – T89.4), was based on the video surveillance footage which is the subject of findings at paragraph [35] above.

48. I record my finding that the aforementioned challenge lacked sufficient particularity and fairness of opportunity for comment by the plaintiff to support the specific criticisms of the plaintiff’s credit as was respectively raised by Dr Haik, Dr Langeluddecke and Dr Schutz.

49. Dr Haik was the first of the defendant’s experts to make comments adverse to the plaintiff’s credit along those lines. This was in his report dated 9 June 2009: Exhibit “6”, pp 1 – 8. Dr Haik’s conclusion (at p 8) was that the plaintiff did not suffer from a psychiatric disorder and “clearly does not have an ‘unconsciously’ driven psychological condition that might explain his chronic pain and ongoing disability”. The clear implication insinuated by those remarks of Dr Haik in his cited first report, was that the plaintiff’s presentation was, consciously on his part, not genuine.

50. In Dr Haik’s second report, dated 5 October 2010, he elevated his criticism of the plaintiff. He reiterated his earlier opinion that there was no evidence the plaintiff suffered from a psychiatric disorder, and he raised, somewhat speculatively, “a serious concern that his presentation may be deliberatively driven by an aspiration for external incentives”, which I interpret to mean that Dr Haik was asserting the plaintiff was feigning a psychiatric disorder for secondary or monetary gain: Exhibit “6”, p 28. Dr Haik did not differentially analyse that concern, or its basis in his thinking, in order to provide a concluded opinion on the “concern” he had raised. His comment was therefore inconclusive at that stage.

51. In Dr Haik’s third report, dated 15 October 2013, he further elevated his criticisms of the plaintiff. He not only reiterated his earlier views as cited above, but he went on to speculate, and to positively suggest the plaintiff was doing whatever was required to achieve financial reparation for his early life difficulties. Dr Haik further suggested that the plaintiff’s complaint of loss of bowel control leading to defecation was “a quite bizarre symptom” that “cannot be explained from a medical perspective”: Exhibit “6”, p 75. In making that last-cited comment, Dr Haik did not seek to draw any relevant distinction between the different disciplines of physical and psychiatric medicine and he did not point to any medical evidence from the physical medicine specialists to support his view. He did not include a discussion of a possible psychological cause, as was identified by Dr Klug to be the plaintiff’s panic attacks. Dr Klug disagreed with Dr Haik’s cited formulation, as will be made plain.

52. There are several difficulties and reasons that preclude an acceptance of Dr Haik’s opinions that are critical of the plaintiff in this case. His reports were admitted into evidence over the objection of the plaintiff. His reports were tendered because they had been served, and as they contained various forms of acknowledgment of the obligations of an expert witness. Therefore, the opinions in those reports had to be considered and analysed as to their content, if for no other reason, than to simply record the plaintiff’s reported histories as given at the respective times he was seen by Dr Haik.

53. A further difficulty raised by the plaintiff concerning an acceptance of the opinions of Dr Haik in this case, is that on account of his stated retirement from practise, the defendant sought to continue the sequence of his reports, or to at least supplement them, with the opinion of another consultant psychiatrist, Dr Sharon Reutens who was appointed to replace him. She had examined the plaintiff for that purpose on 18 January 2017: Exhibit “G”. Dr Reutens’ report of that consultation was withheld from service by the defendant and it was not tendered in evidence. In the cited circumstances, I conclude that I can safely infer that this was because her opinions in this case would not have assisted the defendant to seek to assert the continued applicability of the cited views of Dr Haik, and that her views were not otherwise contradictory of the case sought to be made by the plaintiff: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

54. In due course, when seeking to reconcile the conflicting expert opinions on matters of diagnosis, and on the credit of the plaintiff in this case, I will identify in full, my reasons for rejecting the respective opinions of Dr Haik, which, in my opinion, in essence, do not fulfil the necessary legal pre-requisites to justify Dr Haik’s reports being properly classified as reliable expert opinions: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

55. I now turn to a consideration of the reports of Dr Schutz from the perspective of an analysis of the plaintiff’s credit, truthfulness and reliability as a witness. Dr Schutz made critical comments also suggestive of doubts over the veracity of the plaintiff’s complaints.

56. In Dr Schutz’s initial report, dated 15 June 2009, he made no adverse comments about the plaintiff. He postulated (at p 17), that the plaintiff’s right chest wall pain, a critical matter in dispute, could have been due to possibilities such as peripheral nerve neuroma, intercostal neuralgia at the site of insertion of the intercostal drain, or intercostal neuralgia due to fractured ribs, the latter of which was later excluded as a mechanism, following imaging of the plaintiff’s chest. In his second report also dated 15 June 2009 (at p 20), Dr Schutz identified a classification of injury problem or anomaly for assessing chest wall injuries according to the Medical Assessment Service criteria, in that the required AMA4 Guide to the assessment of permanent impairment, did not include any criteria for assessing chest wall injuries. He therefore sought to assess that issue by a process of artificially imputing an analogous condition, said to be “equivalent”.

57. In his third report, dated 18 October 2010, Dr Schutz said (at p 42), based on his interpretation of the 4 DVDs of video surveillance material that he saw relating to the plaintiff, that the plaintiff appeared to have significantly overstated the effect of his symptoms. It appears that Dr Schutz’s view in that regard was based on absence of signs on the DVDs, of the plaintiff coughing: Exhibit “6”, p 43.

58. The fairness of Dr Schutz’s conclusion in that regard must be questioned as a proper basis for making a finding adverse to the plaintiff, particularly as Dr Schutz did not give the plaintiff a fair opportunity to comment on the conclusions he had formed on viewing those DVDs. On that issue of the plaintiff’s coughing, I record my factual conclusion, which is not a matter of medical diagnosis, that it is difficult to conclude from the DVD video surveillance evidence that I have viewed, that the plaintiff could be seen not to have coughed, painfully or otherwise, as was suggested by Dr Schutz: Exhibit “6”, p 43.

59. For Dr Schutz’s stated conclusion to reliably apply as to the absence, in the video surveillance material, of any sign of the plaintiff having coughed, it would have been necessary for Dr Schutz to have fairly put the basis of his view to that effect to the plaintiff for comment. I find that he did not do so. This casts significant doubt over the reliability of Dr Schutz’s conclusions that were expressed as being adverse to the plaintiff’s credit (at p 47), where Dr Schutz had accepted the simplistic but inherently ambiguous if not confusing proposition put to him by the defendant’s solicitor, to the effect that the plaintiff exhibited signs or features of exaggeration or embellishment.

24. In my assessment, those acquiescent observations by Dr Schutz should have little if any evidentiary value, as Dr Schutz had not placed them squarely before the plaintiff for him to comment upon, either by way of acceptance or refutation. Accordingly, that component of Dr Schutz’s opinion should be seen to be unfair to the plaintiff, and must be substantially discounted as a criticism of the plaintiff’s credit, particularly as Dr Schutz did not adequately specify what he considered to be “significant embellishment and exaggeration during the examination”: Exhibit “6”, p 47. Criticisms of that kind should be fairly supported by reasons, and not left as vague and non-specific assertions, as is apparently the case here: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

25. The same comments apply to Dr Schutz’s two reports dated 27 August 2012 (at Exhibit “6”, pp 51 – 65), where (at pp 60 and 65) he said the plaintiff’s chest wall symptoms were in excess of what would be expected, without identifying what was not in excess, or what constituted the margins of excess, and without going on to explain the basis for that view, and without discerning or identifying any possible differential diagnostic alternative, and where he considered the plaintiff’s chest wall complaints were a voluntary exaggeration or embellishment, without either fairly putting that view to the plaintiff for his comment, or without giving adequate explanatory reasons for him taking that adverse view.

26. Accordingly, Dr Schutz’s 27 August 2012 remarks critical of the plaintiff must be substantially discounted as I considered that they did not represent a fair basis for making credit findings adverse to the plaintiff. Furthermore, his remarks were at odds with the variously concluded views of two consultant neurologists, Dr Geoffrey Boyce and Dr John O’Neill, whose reports will be referred to in the chronology of consultations and assessments, and analysed at a later point in these reasons.

27. I considered that Dr Schutz’s two reports dated 20 January 2017 should be viewed in the same light as his earlier reports, as stated in the preceding paragraph. The second of those latter reports, which was based on video surveillance observations that, to Dr Schutz, suggested there was no outward sign that the plaintiff had the restrictions he claimed, contained a suggestion by Dr Schutz that was not fairly put to the plaintiff for his comment. The longer of those two reports was in essence a reprise of Dr Schutz’s earlier opinions. Although he did fairly acknowledge (at p 124), that it was not possible to entirely discount “the possibility of symptoms”, he nevertheless felt able to assert that: “given the very significant inconsistencies, which appear very likely to include voluntary exaggeration there is considerable doubt about the level of symptoms and the effect of those symptoms causing limitation”. He did not explain the balancing or evaluation exercise that led him to that expressed view.

28. Dr Schutz did not adequately explain that view with the required level of reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). No opportunity was given for the plaintiff to comment on those views. In my assessment, Dr Schutz’s cited report is therefore not a reliable basis for making adverse credit findings against the plaintiff. Dr Schutz’s adjectival description of “significant inconsistencies” was insufficiently explained to render it to be a reliable conclusion for the purpose of making adverse credit findings against the plaintiff.

29. A further reason for discounting Dr Schutz’s cited views is his concession (at p 125), that there were psychiatric factors to be considered, and which were outside the scope of his expertise. Dr Schutz’s simplistic adoption (at p 128), without adequate reasons, of the defendant’s solicitor’s invitation to accept the proposition that the plaintiff displays signs or features of exaggeration or embellishment, must, as earlier identified, be seen to be confusing at best. This is because Dr Schutz not only did not explain which of the alternative propositions that were there stated, he was agreeing with, but he also did not give adequate reasons for such an adverse view, on a matter of such importance: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

30. Dr Langeluddecke was the third expert relied upon by the defendant concerning comments as to the plaintiff’s motives and credit: Exhibit “6”, pp 80 – 102. An examination of her lengthy report reveals that it did not relevantly include an adequate elaboration, by reasons, for her views that were expressed to be critical of the plaintiff’s credit.

31. My opinion in that regard is in part based on an evaluation of Dr Langeluddecke’s statement (at p 96), that she had administered a Test of Memory Malingering (TOMM) to the plaintiff where, nowhere in her lengthy report does she explain her interpretation of the results of her testing of the plaintiff’s memory by reference to that specific test. She merely stated the numerical results of that test and stated that they lacked credibility, without explanation as to why that conclusion arose (at pp 98 – 99, 101). Those circumstances led me to the conclusion that her comments on the plaintiff’s memory and cognitive functioning are inadequately reasoned insofar as she seeks to impugn his credit: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

32. In my assessment, Dr Langeluddecke’s report lacks a transparent basis for her expressed conclusions that purport to reflect adversely on the plaintiff’s credit concerning the testing of his memory. I have concluded that her opinions do not provide a reliable basis for impugning the plaintiff’s credit with the assertions she has made (at pp 83 – 84), to the effect that she thought the plaintiff was “certainly” malingering in relation to his cognitive difficulties and “probably” in the case of his complaints and psychological symptoms. On analysis, her reasons for those views were not supported by the required level of reasoning, and her cited opinions are in this case, an unacceptable basis for making findings adverse to the plaintiff’s credit.

33. In summary, I considered that the respective negative comments made about the plaintiff and his motives by Dr Haik, Dr Langeluddecke and Dr Schutz, as relied upon by the defendant, were not adequately supported by cogent reasons of the pre-requisite kind demanded by the rules governing expert evidence: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

34. Instead, I found the cited opinions of those examiners were an unreliable basis upon which to make adverse credit findings against the plaintiff. For reasons that will be made clear, I have rejected those cited opinions, and instead I have accepted the numerous and otherwise identified opinions of other treating and assessing practitioners that will be referred to later in these reasons, as relied upon by the plaintiff, and which support his case. Those reports were not marred by unreliable comments of the kind that I have cited as appearing in the reports relied upon by the defendant.

35. I have accepted that the plaintiff, and his partner, Ms Triplett, gave straightforward, unembellished, truthful and reliable evidence on the factual matters that they described in their respective testimonies. In my view, for reasons that will be made plain, none of the tendered medico-legal reports containing remarks critical of the plaintiff, provided a reasonable or a reliable basis for a contrary conclusion. In my view, neither did the video surveillance material provide a rational basis for a contrary conclusion.

36. Given my findings as to the credit of the plaintiff and that of his partner, and accepting the plaintiff’s evidence that he gave truthful accounts when he provided histories to the various practitioners who examined him, I consider it is appropriate to draw upon the reports and records of those practitioners as evidence on relevant factual matters, particularly on matters of background, work history, injuries, treatment and the plaintiff’s ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142] – [143]; s 60 of the Evidence Act 1995.

Facts

75. I now turn to a more detailed consideration of the facts. Unless otherwise stated, my findings of fact now follow, concerning the following topics:

1. the plaintiff’s pre-accident background circumstances;

2. the plaintiff’s pre-accident employment history;

3. the plaintiff’s injuries and the initial treatment he received, including concerning some complications that occurred;

4. the further medical and allied reviews that the plaintiff has attended;

5. the diagnostic conclusions of treating doctors;

6. findings on conflicting opinions in the expert medico-legal evidence;

7. the nature of the plaintiff’s disabilities;

8. the effect of those disabilities upon the plaintiff’s ability to work;

9. the effect of those disabilities on the plaintiff’s domestic tasks; and

10. the question of mitigation.

(1) Plaintiff’s pre-accident background

76. The plaintiff was born in 1984. He was noted to have been an enthusiastic pupil at school, but it was also noted that he experienced difficulties with some academic tasks. He experienced some early learning difficulties. He received and had benefited from early remedial educational assistance provided to disadvantaged rural residents by the Far West Scheme aimed at assisting children in remote locations. The plaintiff’s early medical records show that it was considered by those providing for his medical needs that he had Aarskog’s Syndrome, a genetic disorder associated with a mild intellectual impairment.

77. The plaintiff initially received remedial reading assistance between the ages of 7 and 11 years. It was considered that this would have given him “survival level” reading skills by the end of his primary school placement: Exhibit “2”, pp 15 – 23. The plaintiff’s treating paediatrician when the plaintiff was aged 11 years, was of the opinion the plaintiff had familial intellectual delay: Exhibit “2”, p 28. There is no evidence this was an impediment to the plaintiff ultimately pursuing or sustaining a gainful manual occupation.

78. The plaintiff completed his secondary schooling at Lightning Ridge in 2001, when he obtained the School Certificate. He and his partner of 11 years have two young children. At present she works in an administrative position to support the family financially. They have moved to various locations in NSW on several occasions in order for this to occur.

79. There was nothing within the plaintiff’s medical or personal history to suggest that he had only a limited ability to exercise an earning capacity in unskilled or semi-skilled manual occupations. Nor was there anything in the evidence to suggest that his pre-injury circumstances indicated he might have a foreshortened life expectancy, or a foreshortened working life, or an impairment in his ability to enjoy the amenity of his life. Before the subject accident, he was a proficient golfer in his spare time.

(2) Plaintiff’s pre-accident work history

80. On leaving school in 2001, the plaintiff pursued a number of employment opportunities. He became an apprentice in a bowling club where he worked for about a year, but he left that work due to interpersonal difficulties with his employer and his employer’s son. He then obtained employment as a contract gardener in Coffs Harbour for about 6 months. He has also worked as a labourer in an abattoir for about 3 months. He then returned to his home town of Lightning Ridge and did some labouring work on a remote property for several years. He ceased that work because, at that time, he felt the location of that work was too remote. He then worked as an opal miner for about 6 months, but this ceased because he found no opals. He then spent about 2 months without work until he obtained his pre-accident employment in the mining industry, with Tom Browne Drilling Services Pty Ltd, a mineral exploration drilling contractor. I gained the impression that before the accident the plaintiff was a resourceful person who demonstrated an ability to adapt to changing circumstances.

81. On 12 April 2007, the plaintiff underwent a comprehensive pre-employment Health Assessment carried out by Dr Kumara Mendis before commencing his employment with Tom Browne Drilling Services Pty Ltd: Exhibit “C”, Tab 8, pp 104 – 116. No significant abnormalities in the plaintiff were noted in that examination, and (at p 112), he was assessed as being suitable for employment without any relevant restrictions. He then commenced work with that company on 24 April 2007.

82. Dr Mendis’ pre-employment medical assessment of the plaintiff certified him as suitable and fit for working in remote areas, to engage in both light and heavy manual work, and to operate machinery, including to work in dusty conditions in the mining industry. In that employment his assigned work was predominantly labouring, including the manhandling and the assembly of machinery components.

83. The plaintiff said, and I accept, that his pre-accident work intentions were to continue to work in a rural setting in the mining industry, which was the type of work for which he was assessed as being suitable. For someone in his position, with a limited education, but with a practical mechanical aptitude, that work was attractive to him and was well-paid. He seemed temperamentally suited to that type of work.

84. As a result of the subject accident on 15 May 2007, the plaintiff’s stated work ambition of remaining in the mining industry was short-lived. Beforehand, on 1 May 2007, just 2 weeks before the subject accident, whilst working as a driller’s assistant, he sustained what appears to have been a soft tissue back injury, which resulted in him being off work for 9 days, before he returned to work on light duties on 10 May 2007. He then continued in those light duties until he was involved in the subject motor vehicle accident, on 15 May 2007.

85. My assessment of the evidence of the plaintiff and the medical evidence relating to that injury on 1 May 2007 was that any work incapacity from that earlier injury was that it was most probably only of a temporary nature and extent insofar as an ability to work was concerned. There is no evidence to suggest that the plaintiff’s described back injury on 1 May 2007 had or could have resulted in any permanent restrictions for the plaintiff with regard to his ability to work, or with regard to his ability to enjoy the amenity of his life.

(3) Injuries from the accident and initial treatment

86. In the subject accident, the plaintiff sustained a laceration to his right elbow, extensive multiple and deep lacerations to the right side of his chest, a contusion and a penetration injury of his right lung, a haemothorax requiring drainage, a contusion to a lobe of his liver, a kidney contusion, and he also lost a large amount of blood.

87. After the plaintiff was extricated from his badly damaged vehicle, an ambulance took him to Dubbo Base Hospital where he remained as an in-patient for three weeks. The full extent of those admissions and progress notes were not in evidence. This turned out to be a matter of some significance to the assessment of some of the medico-legal opinions in this case.

88. In the plaintiff’s initial treatment, his wounds were cleaned and treated by surgical repair. He required significant blood transfusions. He had an indwelling right-sided chest drain inserted into his chest cavity between his ribs, and he developed subsequent thrombotic problems in his neck. He was given a urinary catheter. He suffered a bowel ileus, and he required repeated enemas, and a subsequent colonoscopy.

89. Some 3 days after his initial discharge from Dubbo Base Hospital, the plaintiff developed a painful lump due to an emergent blood clot or thrombosis on the left side of his neck, which he considered to have been due to his required left-sided sleeping posture following the prior placement of a central intravenous line on the right side of his neck. These events required his re-admission to Dubbo Base Hospital. Anticoagulant therapy then ensued, followed by a transfer of the plaintiff to the Prince of Wales Hospital in Sydney, where he remained under specialist treatment and observation for a further week.

90. One of the plaintiff’s treating general practitioners, Dr Glen Mobilia, was asked to provide a report that included a history of the onset and the subsequent course of the plaintiff’s accident-related problems. Given the plethora of medical material tendered in this case, and the absence from the evidence of the full hospital notes, at this point, it is appropriate and convenient to cite an extract from Dr Mobilia’s detailed medical summary of the course of those events, as follows:

“On the 15th may (sic), 2007 the patient was employed by Tom Brown (sic) Drilling Pty Ltd as a drilling assistant and had been so employed for approximately some 3 months preceding the accident. On the above date the patient was traveling from his home in Naramine (sic) to his work place at Dubbo driving a mitsubishi triton 2 door club cab vehicle. At approximately 7 am the patient was travelling along the Newell Highway and was approaching a blind turn in the roadway. A truck travelling in the opposite direction was towing a farm implement believed to be a scarifier which was as wide as the dual way carriageway. The patient was travelling at 90 kph resulting in the drivers (sic) front half of the vehicle colliding with the farm implement. The impact of the accident resulting in damage to the patients (sic) vehicle to the depth of the front doors. The patients (sic) vehicle was assessed subsequently as an unrepairable right off.

At the scene Ambulance Report sets out the following injuries. ‘Patient sitting in the car at the (sic) the accident damaged vehicle with a bystander in attendance. The patient was trapped in the vehicle by the scarifier as it came to rest post accident. The patient was reported to be orientated, absent of poriferal (sic) pulses, was reporting abdominal and chest pain with shortness of breath. He was observed to have a 12 cm laceration to the right side of his chest with associated skin abrasion and bruising. Preceding the ambulance the patient had temporarily lost consciousness.

The patient was then conveyed to the Dubbo District Hospital by ambulance. He was examined in the emergency Department. The patient was transferred to the intensive care unit. He has no memory of the intervening events. According to hospital notes the patient underwent surgery to repair the lacerations on the right chest wall on the 15th May, 2007. He remained in intensive care for approximately 1 week. Had difficulty passing stools and was vomiting. On stabilization the patient was transferred to the medical ward and remained there for 2 days. He was still not able to pass stools and accordingly a colonoscopy was performed, on the 22nd May, 2007. The patient subsequently (sic) [developed] a pneumothorax which was treated with a chest drain and same resolved.

A chest x ray of the 24th May, 2007 confirmed effusions of both lung fields.

On the 31st May, 2007 a ct of the abdomen was performed. indicating a laceration to the liver and associated haematoma. Diminution of the free blood component in the abdominal cavity with improving peritonitis. There was a significant amount of free fluid in the pelvis. Right renal contusion with an area of possible infarction. The patients (sic) ileus of the bowel had increased significantly consistent with an incomplete bowel obstruction or paralytic ileus. Radiology of the lungs indicated small right basal effusion and patchy atelactic (sic) change of the right lung base.

Tony remained an inpatient at the Dubbo Hospital for approximately 3 weeks.

Some 4 days post discharge on the 7th June, 2007 the patient developed a painful lump on the left side of his neck, an ultrasound was performed on the 8th June 2007. The ultrasound demonstrated an occlusive thrombus in the subclavian vein and proximal portions of the internal and external jugular veins. In other words a blood clot occluding these veins accounting for the left sided painful neck lump. He was treated initially with a heparin infusion.

The patient was stabilised and transferred by plane to Prince of Wales Hospital in Sydney. The transfer notes made reference to contusion injuries to the right kidney, right lobe poster laceration to the right lobe of the liver and penetrating injury to the right lung.

Tony remained an inpatient at the hospital for approximately 1 week. The subclavian vein thrombus was treated conservatively with intra venous heparin. During his inpatient stay a chest xray (sic) dated the 19th June, 2007 was performed indicating left hemithorz (sic) soft tissue oedema secondary to the subclavian thrombosis. At the same time a ct of the abdomen was performed demonstrating liver laceration and evidence of collections of bile and haematoma. Evidence of right kidney renal contusion in the superior pole of the right kidney and areas of reduced perfusion in the medial portion of the right kidney. Further there was a pelvic collection of fluid and blood, A repeat Ct scan of the abdomen and pelvis was performed on the 15th June, 2007 confirmed the liver collections predominantly in the right lobe and the right kidney lesions including a wedge shaped area suggestive of infarction. These findings remained unchanged from the previous radiology. The pelvic fluid collections were resolving. Treatment was changed from heparin to warfarin. The anticoagulant treatment continued for a further 3 months. Tony was discharged from hospital on the 18th June, 2007. There was follow up physiotherapy at Naramine (sic) Physiotherapy and Sports injury Clinic (Lisa). The patient was initially in receipt of weekly treatments, then fortnightly then monthly treatments for approximately 6 months. Treatments were terminated as the patient was unable to continue due to pain on the right side of his chest. Tony continued exercising at home including the use of a secondhand home gymnasium in order to gain muscle strength. These treatment (sic) provided some improvement in general condition.

On Discharge Tony was regularly reviewed by Dr. Kirkby and underwent ongoing inr blood tests to manage his warfarin use. During this time Tony became what he describes as increasingly depressed and began crying in my rooms when recounting this period. He experienced nightmares involving the circumstances of the motor vehicle accident, flashbacks re same and anxiety and panic attacks when driving a motor vehicle. His mood and behavior (sic) changed and he became increasingly irritable and short tempered towards his partner. He became increasingly distressed with regards (sic) his bleak future work prospects. He was a promising golfer and post accident he has not been able to play golf. He won a number of area amateur tournaments. He has since tried to play golf but was not able to resulting for 3 weeks of excruciating pain. He recounts becoming angry and distressed every time a truck passed by. He would become irritable and become verbally abusive towards his partner, he began talking about suicide. On a number of occasions around this time Tony made attempts to hang himself by the neck. Tony's partner attempted to have Tony seek help however Tony resisted angrily saying that he didn't need help as he had never had any issues prior to the motor vehicle accident.

Concerns with regards to self harm reached a point wherein Tony was forced by his partner to seek help from Dubbo Mental health. Notes dated on even date indicate that Tony was experiencing significant pain issues, exhibited symptomatology consistent with major depression and post traumatic stress disorder relating to the motor vehicle accident. Further he had reported making 2 attempts at self harm by hanging strangulation. He was noted to be extremely distressed, he was noted to exhibit increased arousal, exaggerated startle, irritability, anger, poor concentration and disturbed sleep/insomnia. At this time he felt he was being pressured by the rehabilitation provider. The patient clearly had symptomatology consistent with post traumatic stress disorder. He was exposed to a life threatening traumatic event which almost ended in fatality. The circumstances surrounding the accident were consistently being relived by the patient resulting in recurrent nightmares and flashbacks of the event.

Tony was subsequently reviewed by a Dr Richard Burek Psychiatrist. Dr Burek reported that Tonys (sic) Depression had improved being treated with Efexor 150 mg day however broken sleep and irritability were still issues. The patient reported terrifying dreams 3 times per week wherein he relived the events of the trauma and other gruesome possibilities including decapitation. Further the patients (sic) anxiety and panic attacks experienced when driving requiring the company of a passenger to contain his anxiety. Consideration was given to the consideration of introducing valproate to manage his pain and nightmares. He was reviewed on approximately 5 further occasions by Dr Burek.”

[Extracted from Exhibit “2”, pp 327 – 334]

91. Although the acute effects of the plaintiff’s injuries have subsided over time, the plaintiff has been left with a number of residual physical and psychological disabilities, including psychiatric problems. Before setting out my findings on those matters, it is convenient to first survey, review and consider, the voluminous medical and allied evidence that has been tendered in the proceedings.

(4) Subsequent medical and allied reviews

92. Subsequent to his initial treatment, over the course of the 10 years since the accident, the plaintiff has undergone a significant number of medical and allied assessments relating to his injuries and his case. Changes of personnel amongst the plaintiff’s treating practitioners have occurred over time due to the fact that he had changed his place of residence on a number of occasions, which required that he consult different general practitioners who referred him to various specialists.

93. Some of the assessments of the plaintiff comprised reports from the Medical Assessment Service. Those reports have been included in the review that will shortly follow, but with the qualification and caution that those reports are not reports from compellable experts and as such, the authors are not required to comply with the Expert Witness Code or UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c), as those reports only deal with the threshold question of entitlement to damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90], following Brown v Lewis [2006] NSWCA 87 at [23].

94. The medical records kept by the Narromine Shire Family Health Centre relating to the plaintiff for consultations at that centre in the period between 12 April 2007 and 19 May 2009 were tendered: Exhibit “D”, Tab 19, pp 149 – 290. The salient features of those records include the details of the plaintiff’s earlier referred to 12 April 2007 work fitness assessment carried out by Dr Mendis (Exhibit “D”, Tab 19, p 140, pp 166 – 175), as well as the details of the plaintiff’s 1 May 2007 thoracic back strain at work due to heavy lifting, which later resulted in a fitness for work certificate for the period 10 May 2007 to 23 May 2007, subject to a stated restriction of no heavy lifting (Exhibit “D”, Tab 19, pp 140 – 141);

95. The plaintiff’s medical records also contained references to a series of post-accident general practitioner consultations between 7 June 2007 and 7 May 2014 (Exhibit “D”, Tab 19, pp 141 – 148), with related test results, workcover certificates, as well as some correspondence with the insurer and other treating practitioners (Exhibit “D”, Tab 19, pp 149 – 290). Although the parties did not take me to that material concerning in any particular detail, some relevant dates, perspective events and certificates will nevertheless be incorporated into the chronology that will shortly follow, as those dates have an overall relevance to the required assessments.

96. The extensive clinical records of the plaintiff’s general practitioner, Dr Mobilia, were tendered: Exhibit “D”, Tab 22, pp 472 – 552. Those records show that between 10 November 2010 and 27 November 2017, the plaintiff attended Dr Mobilia’s practice on some 174 occasions for consultations on accident-related matters. Dr Mobilia’s printed notes demonstrate that at times, those consultations were prolonged, and resulted in extensive and carefully set out notes that charted in detail the course of the plaintiff’s presenting problems, and included in those notes was relevant correspondence with other treating specialists.

97. Given the nature of the challenges made to the probity of the plaintiff’s evidence, it is necessary that I review all of the reports of those who have assessed the plaintiff over time, in context, and as a prelude and an aide to making findings concerning some conflicting medico-legal opinions on particular diagnostic matters, and regarding the plaintiff’s ongoing accident-related disabilities, and whether or not the plaintiff was malingering, exaggerating or embellishing his problems, as asserted on behalf of the defendant.

98. The chronological sequence of those medical and allied reviews (which does not include all of the hundreds of consultations the plaintiff has had in respect of his injuries, as evidenced by the content of and the dates in the folder of payments schedules comprising Exhibit “K”), is as follows:

1. On 15 May 2007, Dr S Peat, of the Dubbo Base Hospital emergency department issued the plaintiff with a workcover medical certificate covering the period 15 May 2007 to 23 May 2007: Exhibit “E”, Tab 32, pp 603 – 604;

2. On 29 May 2007, Dr C Gutierrez, of the Dubbo Base Hospital emergency department, issued the plaintiff with a workcover medical certificate covering the period 15 May 2007 to 15 June 2007: Exhibit “E”, Tab 32, p 605;

3. On 12 June 2007, Dr Richard Kirkby issued the plaintiff with a workcover certificate that was current to 30 June 2007: Exhibit “D”, Tab 19, p 280;

4. On 15 June 2007, the plaintiff underwent a CT scan of his abdomen and liver at the Prince of Wales Hospital, as a follow-up of his abdominal injury: Exhibit “D”, Tab 20, pp 325 – 326;

5. On 18 June 2007, Dr K Lion of the Prince of Wales Hospital, issued the plaintiff with a workcover medical certificate covering the period 18 June 2007 to 18 December 2007: Exhibit “E”, Tab 32, p 606;

6. On 6 July 2007, the plaintiff underwent a further CT scan of his abdomen and pelvis to follow-up his abdominal injury: Exhibit “D”, Tab 20, p 327;

7. On 9 July 2007, the plaintiff was examined by Dr Koroush Haghighi, a consultant surgeon at the Prince of Wales Hospital, at the request of Dr Grassby, also a general surgeon, to monitor his neck thrombosis and his liver injury: Exhibit “D”, Tab 20, p 320;

8. On 10 July 2007, the plaintiff underwent a further CT scan of his abdomen and liver at the Prince of Wales Hospital, as a follow-up of his abdominal injury: Exhibit “D”, Tab 20, pp 322 – 324;

9. On 18 July 2007, Dr Haghighi took over the plaintiff’s care at the Prince of Wales Hospital for “safe heparinisation”: Exhibit “D”, Tab 20, p 330;

10. On 28 July 2007, Dr Grassby noted the plaintiff still had a degree of discomfort in his right chest wall that occurred in association with activity: Exhibit “D”, Tab 20, p 321;

11. On 5 August 2007, the worker’s compensation insurer arranged an injury management plan of rehabilitation treatment with a review date of 13 November 2007: Exhibit “D”, Tab 19, pp 217 – 226;

12. On 7 August 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate: Exhibit “D”, Tab 19, p 276;

13. On 23 August 2007, Dr Grassby noted the plaintiff was still troubled by pain related to movement and physical activity, and had still not recovered from the effects of the accident: Exhibit “D”, Tab 20, p 295;

14. On 27 August 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 September 2007: Exhibit “D”, Tab 19, p 277;

15. On 4 September 2007, Dr Grassby issued the plaintiff with a workcover medical certificate: Exhibit “D”, Tab 20, p 319;

16. On 11 September 2007, the plaintiff presented to Dubbo Base Hospital with a painful left scapula, and with a concern as to whether this was a symptom akin to a blood clot of the kind that he had experienced earlier. The clinical impression was muscular pain. He was discharged for follow-up by Dr Grassby: Exhibit “2”, pp 115 – 116;

17. On 17 September 2007, Dr Grassby, issued a workcover medical certificate for the plaintiff’s unfitness between 17 September 2007 and 21 December 2007: Exhibit “D”, Tab 19, p 236;

18. On 17 September 2007, Dr Grassby issued the plaintiff with a workcover medical certificate. At that time, it was noted that the plaintiff was undertaking some volunteer work at a Narromine School: Exhibit “D”, Tab 20, p 316. From the plaintiff’s description, that work, assisting children with their reading, was a struggle for him, and was not sustainable: T18.2 – T18.25;

19. On 27 September 2007, the plaintiff was reviewed by Dr Grassby, at the request of Dr Kirkby: Exhibit “D”, Tab 19, p 211. Dr Grassby noted that imaging of the plaintiff’s liver showed improvement of the previously noted bilomas. Dr Grassby also noted chest tenderness on palpation, chest related lifting restrictions and a tremor on exertion of the right hand. On that date, Dr Grassby’s handwritten notes (which are found at Exhibit “2”, pp 104 and 120), in dot point form, state “· Bowels OK”. It is not clear as to whether this meant there were no bowel symptoms reported or elicited, or whether the bowel was stated to be working properly, unlike when the plaintiff had a paralytic ileus. The matter was left unexplained and unexplored in the evidence;

20. On 27 September 2007, a further CT study of the plaintiff’s abdomen and pelvis was undertaken, to monitor his intra-pelvic injuries: Exhibit “D”, Tab 20, p 318;

21. On 27 September 2007, Dr Grassby provided the plaintiff with a workcover medical certificate covering the period 27 September 2007 to 31 October 2007: Exhibit “E”, Tab 32, p 609;

22. On 12 October 2007, Dr Grassby provided the plaintiff with a workcover medical certificate covering the period 30 September 2007 to 30 October 2007: Exhibit “2”, p 121;

23. On 16 October 2007, the plaintiff was reviewed by Dr Grassby, who noted the plaintiff’s main complaints to be significant chest wall tenderness on effort and lifting: Exhibit “D”, Tab 20, p 296;

24. On 22 October 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 November 2007: Exhibit “D”, Tab 19, p 282;

25. On 22 October 2007, Dr Kirkby referred the plaintiff to Ms Lisa Bullock, a physiotherapist, asking that she take over his physiotherapy treatment from a previous physiotherapist, noting there was a slow recovery with lack of strength in the right arm, and pain from the right chest wall: Exhibit “D”, Tab 19, p 212;

26. On 24 October 2007, the plaintiff’s treating general practitioner Dr Robert Kirkby wrote to a claims consultant of the Compulsory Third Party insurer, Allianz Insurance Australia Ltd, setting out details of the plaintiff’s post-accident problems, which included spasms across the upper abdomen, thoracic spine and ribs, a weakness in the right arm, and related pains and muscle spasms: Exhibit “D”, Tab 19, pp 163 – 164, pp 209 – 210, pp 254 – 255;

27. On 24 October 2007, the plaintiff commenced a physiotherapy management plan carried out by Ms Bullock, in Narromine, at the recommendation of Dr Kirkby, under the auspices of the worker’s compensation insurer: Exhibit “D”, Tab 19, p 214;

28. On 22 November 2007, Dr Grassby reviewed the plaintiff and noted his persisting chest pain and shortness of breath. He suggested an appointment for pain management: Exhibit “D”, Tab 19, p 234; Tab 20, p 313;

29. On 22 November 2007, Dr Grassby issued the plaintiff with a workcover medical certificate: Exhibit “D”, Tab 20, p 311;

30. On 22 November 2007, the plaintiff underwent a further CT scan study of his thorax, abdomen and pelvis, which was interpreted as showing some improvement in the state of his previous liver injury: Exhibit “D”, Tab 20, p 312;

31. On 26 November 2007, Dr Grassby referred the plaintiff to Dr Michael Dally for assessment of ongoing chest-related symptoms: Exhibit “D”, Tab 20, p 314;

32. On 27 November 2007, Dr Grassby again noted the plaintiff’s main complaint to be significant chest wall tenderness on effort and with lifting: Exhibit “D”, Tab 20, p 315;

33. In December 2007, on a date that was not specified, the plaintiff was seen by Dr Richard Burek, a visiting psychiatrist with the Greater Western Area Health Service, a community psychiatric team. Dr Burek confirmed to the plaintiff’s treating general practitioner that the treatment the plaintiff had received for depression, irritability, broken sleep and PTSD was appropriate, but that the prescribed medications needed to be monitored for side effects: Exhibit “C”, Tab 9, p 117; Exhibit “D”, Tab 19, p 110, p 213;

34. On 27 December 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 January 2008: Exhibit “D”, Tab 19, p 281;

35. On 3 January 2008, following his December 2007 assessment of the plaintiff, Dr Burek recorded his view that the plaintiff had post-traumatic stress disorder, complaints of pain, and nightmares: Exhibit “D”, Tab 19, p 213;

36. On 29 January 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 3 March 2008: Exhibit “D”, Tab 19, p 283;

37. On 7 February 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 1 July 2008: Exhibit “D”, Tab 19, p 269;

38. On 7 February 2008, the plaintiff was seen by Dr Grassby, who noted that the plaintiff was in a very much disturbed state, having broken down emotionally, and was in need of assistance due to major psychological problems and chronic pain: Exhibit “D”, Tab 19, p 215; Tab 20, pp 307 – 309;

39. On 3 March 2008, Dr Kirkby saw the plaintiff and noted he was making very slow progress, and was getting much pain from his right chest wall: Exhibit “D”, Tab 19, p 216;

40. On 3 March 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 2 April 2008: Exhibit “D”, Tab 19, p 284;

41. On 3 March 2008, the plaintiff’s treating general practitioner, Dr Kirkby, wrote a letter to the worker’s compensation insurer reporting that the plaintiff was making a very slow progress and was getting much pain from his right chest wall. At that time Dr Kirkby considered the plaintiff would never be in a fit state to work in the heavy labouring industry as a driller’s assistant: Exhibit “C”, Tab 10, p 118;

42. On 25 March 2008, at the request of his solicitor, the plaintiff was assessed by Dr John Voss, a consultant in rehabilitation medicine. Dr Voss carried out a thorough and comprehensive assessment of the plaintiff’s presenting problems at that time: Exhibit “C”, Tab 4, pp 72 – 84. I consider that the detailed summary prepared by Dr Voss represents an early and insightful survey of the plaintiff’s injuries and of his early post-accident progress. I have drawn upon that material to identify my findings on those matters;

43. On 26 March 2008, at the request of his solicitors, the plaintiff was examined by Dr Peter Klug, a consultant forensic psychiatrist: Exhibit “C”, Tab 1, pp 1 – 6. After reviewing the plaintiff’s presenting complaints, noting there was no prior psychiatric history, and reviewing the plaintiff’s personal history, and carrying out a mental state examination, Dr Klug (at p 5), noted the plaintiff to be of apparently average intelligence. Dr Klug (at p 6), identified his diagnosis that the plaintiff had considerable psychiatric symptoms in the form of a chronic post-traumatic stress disorder, which he identified as a severe anxiety disorder. He also identified a diagnosis of a chronic adjustment disorder with depressed mood, and noted that at that time, the plaintiff’s psychiatric condition was not yet stabilised;

323. I have accepted the opinions of Dr Klug, as expressed in his reports and in his oral evidence, to the effect that the plaintiff’s remaining working capacity, if any, is negligible on account of the combined effect of his experience of physical pain, his accident-related chronic pain disorder, his accident-related post-traumatic stress disorder, and the other related psychiatric problems that have been described by Dr Klug and the plaintiff’s treating practitioners.

324. In coming to those conclusions, I have not accepted the respective views to the contrary, as variously expressed in the reports of Dr O’Neill, Dr Haik, Dr Langeluddecke, and Dr Schutz, and to a more limited degree as already outlined, those expressed by Dr Boyce.

325. I considered that the medico-legal opinions relied upon by the defendant to suggest that the plaintiff has a capacity to work, are in this case, should not be accepted, for the reasons that follow:

1. I consider that Dr O’Neill’s comment in his final report, dated 23 January 2017 (at Exhibit “6”, p 105), where he stated that he could find “no neurological injury which would prevent [the plaintiff] from return to work in an appropriate capacity for his overall condition” should not be accepted as it was based on the undefined premise of a delayed complaint, which is not sufficiently like the evidence to render his views reliable: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. Furthermore, as already explained, his opinion is so inherently vague. His opinion is not supported by adequate reasons. His reasons vacillated for explaining the plaintiff’s neuropathic chest wall problems, and his opinion is unreliable because of the absence in the evidence of a full complement of his reports that would otherwise be expected to provide the full content of his opinions;

2. I do not accept Dr Haik’s variously stated views over time to the effect that the plaintiff could be considered capable of remunerative employment (Exhibit “6”, p 8); that he was capable of “any form of employment from a psychiatric perspective” (Exhibit “6”, p 31); that his psychological state would not impair his ability to work: Exhibit “6”, p 76. Dr Haik’s cited views appear to have been based on his flawed proposition that, despite the plaintiff’s described symptoms, the plaintiff did not have a psychiatric disorder. I accept Dr Klug’s assessment that Dr Haik’s view in that regard, was difficult to understand: Exhibit “C”, Tab 1, p 43. I consider Dr Haik’s cited views to be based on an inadequate and unsatisfactory analysis, as I have explained in more detail, at sub-paragraphs (75), (99) and (186) of paragraph [98] and paragraphs [184] to [207] above. Dr Haik went on to express the view that “it would be implausible to believe that [the plaintiff] would be able to find sustained work in the future given his pre-accident work history”: Exhibit “6”, p 76. I reject Dr Haik’s view in that regard as it runs contrary to the undisputed and independent opinion of Dr Mendis who examined the plaintiff and fund him fit for such work: Exhibit “D”, Tab 19, p 140, pp 166 – 175. If the defendant’s case was that he was unlikely to find sustained work because of his pre-accident work history, the defendant was obliged to call cogent evidence on that point. I find Dr Haik’s cited reasons to be an inadequate and unacceptable analysis that was in the form of a submission, and not a reasoned opinion: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [81], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93];

3. Dr Langeluddecke’s views on the plaintiff’s earning capacity are problematic. She declined to comment on the plaintiff’s physical work capacity as she acknowledged, appropriately, that she was not qualified to do so. However, she then went on to state that she considered it “highly unlikely that there is neurologically-based impairment on his employability”, albeit acknowledging that the plaintiff’s depressive condition has the potential to impact on his motivation and ability to work: Exhibit “6”, p 83, par 1.2. I have not accepted Dr Langeluddecke’s opinion on the question of the plaintiff’s employability. I considered that her views were influenced by her inadequately explained and unsubstantiated opinion that the plaintiff displayed signs of malingering, exaggeration or embellishment, and where the effect of her opinion is that she has downplayed the plaintiff’s complaints of pain on the basis of an incomplete and unreliable analysis: Exhibit “6”, pp 83 – 84, par 1.14. My reasons for that conclusion appear at sub-paragraph (216) of paragraph [98], and paragraphs [259] to [277] above;

4. I consider that Dr Schutz’s ultimate opinions on the plaintiff’s work capacity were unreliable and I have not accepted them. In essence, Dr Schutz’s views on this subject, which evolved over time, were that:

1. In June 2009, Dr Schutz thought the plaintiff could possibly do a light job that did not involve any significant manual activity, but that this would require significant rehabilitation input: Exhibit “6”, p 18. That opinion was not borne out by subsequent events and even if it applied on a physical basis, it is no longer applicable, especially taking into account the plaintiff’s psychiatric problems. It is noteworthy that there were unsuccessful historical attempts by the worker’s compensation insurer to rehabilitate the plaintiff. Despite those attempts, the plaintiff has continued to receive weekly payments of worker’s compensation, and it was not suggested by the defendant that he had in any way unreasonably failed to mitigate his damages for loss of earnings;

2. In October 2010, Dr Schutz thought that the 4 DVDs he then saw, which contained video surveillance material, and which were accompanied by some surveillance notes and unspecified “documentation”, indicated to him “that whatever pain exists in [the plaintiff’s] right chest wall, it does not have significant effects on mobility or activity” (Exhibit “6”, p 42) “within the fairly general every day activities observed” (Exhibit “6”, p 44). Those observations apparently led Dr Schutz to the view that the plaintiff’s “history and demonstrated movements and other findings on examination” indicated the plaintiff “was fit to perform light and varied tasks which would be consistent with working as a sales person, probably a driver, including taxi driving if there was no significant lifting involved, and many other activities” including “an activity short of a heavy labouring job”: Exhibit “6”, p 45. Dr Schutz’s opinion in that regard did not include a consideration of either the plaintiff’s psychiatric problems, or his intellectual capacity for such work. I have already recorded my findings on the inconclusiveness of that video surveillance material, at paragraphs [31], [35], [38], [73], [109] and [285] above;

3. In August 2012, Dr Schutz considered that the plaintiff “could work in a suitable job”, which from the context in which he expressed that opinion, appeared to be a car sales position (Exhibit “6”, p 63), but given the plaintiff’s description of the events of his attempt to do so, which I accept as reasonable, that suggestion by Dr Schutz was plainly not a viable option: T97.32 – T97.46. In his further commentary on the video surveillance material, Dr Schutz said it was “not possible to accurately determine … any basis for restriction in work activities in the future”: Exhibit “6”, p 50. The terms of his opinion in that regard were therefore significantly qualified, and did not take into account the effect of the plaintiff’s psychiatric diagnoses, or the plaintiff’s described pattern of experience with randomly occurring faecal incontinence due to panic attacks;

4. In January 2017, Dr Schutz noted (at Exhibit “6”, p 110), Dr Haik’s psychiatric assessment, which was critical of the plaintiff’s motives, and he stated (at Exhibit “6”, p 125), that the plaintiff’s “Possible psychiatric or behavioural but (sic) outside the scope of this report”. Dr Schutz went on to observe (at Exhibit “6”, p 127), that the plaintiff’s physical functioning, based on unspecified DVD surveillance film that he had seen, was “observed to be normal in the context of all the observations … and any possible chest wall symptoms would be highly unlikely to cause any significant restriction”. In answer to a question as to the plaintiff’s capacity for work viewed from the perspective of his specialty, Dr Schutz said this was “Objectively normal”, which he later described as “close to normal physical activity”: Exhibit “6”, p 126. In my view, that opinion was an incomplete basis for assessment because it was expressed from the narrower perspective of Dr Schutz’s evaluation of physical matters, and it did not reflect the plaintiff’s several psychiatric diagnoses, and it did not give due consideration to a representative balance of psychiatric opinions, only referring to Dr Haik’s opinions, which, for the reasons already stated, I am compelled to reject as unsatisfactory;

5. In May 2016, Dr Boyce addressed the specific question of whether the plaintiff was unfit for employment, and he stated in only general terms, that the plaintiff was “not unfit for employment”: Exhibit “3”, p 8. That generalised opinion was of limited probative value because it lacked sufficient cogent reasons as required by UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c), and it did not reflect obvious psychiatric factors, as was later summed up by Dr Klug;

6. The MAS assessment reports are of no assistance to a determination of the plaintiff’s capacity for work because of the limited gateway issue to which they relate, namely whether the plaintiff has an established entitlement to claim damages for non-economic loss: s 131 of the MAC Act: Pham v Shui [2006] NSWCA 373, at [90].

328. I conclude that the plaintiff’s claim for loss of earnings and loss of earning capacity should be assessed on the basis of Dr Klug’s final views, that the plaintiff’s employment prospects are, for the foreseeable future, negligible given his profoundly unwell psychiatric state: Exhibit “C”, Tab 1, p 47.

(9) Domestic effects

329. During the trial, the plaintiff abandoned his claim for damages for domestic assistance. It is therefore no longer necessary to consider in detail the effect the accident has had on his domestic activities. That said, the video surveillance footage that the defendant tendered in evidence indicates that the plaintiff has engaged in a range of light domestic and day-to-day activities, without apparent difficulty, albeit intermittently. The plaintiff did not materially deny he could undertake those activities. The haphazard or opportunistic dates on which these matters were recorded on surveillance footage as observed does not reasonably permit a reliable pattern of ability and pain free activity to be discerned. I accept the preponderance of the medical opinions that the video surveillance material was non-contributory to the issue of assessing the plaintiff’s psychiatric unwellness.

(10) Mitigation

330. The plaintiff was under a legal obligation to take reasonable steps to seek to mitigate the adverse effects of his injuries. This was according to common law requirements as well as pursuant to s 136 of the MAC Act, as well as s 151L of the Workers Compensation Act 1987. During the course of providing the plaintiff with worker’s compensation payments, the worker’s compensation insurer tried to arrange a course of work rehabilitation for the plaintiff, but he showed no aptitude for the clerical tasks involved in that attempt. Those circumstances do not detract from the plaintiff’s credit. The defendant must take the plaintiff, and his limited abilities in that regard, as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406. I consider that the plaintiff has taken reasonable steps to pursue medical treatment so that he has discharged his duty to mitigate his damages. In final submissions, the defendant did not suggest that the plaintiff has unreasonably failed to mitigate the effects of his injuries: T138.36 – T138.39.

Assessment of damages

331. In the paragraphs that follow, I set out my monetary assessment of the various elements of the plaintiff’s claim for damages.

Plaintiff’s remaining life span

332. At age 34 years, the plaintiff’s rounded median statistical life span is identified as being a remaining 51 years. He has a rounded theoretical remaining working life of 33 years. The 5 per cent multiplier for 51 years is 980.6. The 5 per cent multiplier for 33 years is 855.7.

Vicissitudes

333. The plaintiff’s claim for future losses, in particular future economic loss, must be assessed in conjunction with an appropriate discount in mind for possible vicissitudes, which may adversely impact upon either party in the litigation where not all vicissitudes are harmful: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, at [19].

334. Without attempting to define that matter exhaustively, in this case, the potential vicissitudes adverse to the plaintiff include those of early mortality, possible intervening incapacity from other causes, or possible fluctuations in labour market conditions. Similarly, the potential vicissitudes adverse to the interests of the defendant include a possible post-litigation improvement in the plaintiff’s condition such that he might achieve a decrease in his level of disability and a possibly concomitant emergent earning capacity, notwithstanding assumptions and findings made to the contrary, that underpin the assessment of his claim for damages.

335. In that latter regard, Dr Klug’s opinions persuade me that such an improvement, and any such possible increase in earning capacity, should be seen to be negligible: Exhibit “C”, Tab 1, p 47.

336. In my view, in ordinary circumstances, those matters are adequately addressed and met by applying a conventional discount of 15 per cent: Burnicle v Cutelli [1982] 2 NSWLR 26.

337. However, I consider that in this case, an additional element of discount must be applied, not only in light of the plaintiff’s past history of suicidal intention, but also because in the past he has acted upon such thoughts on a number of occasions. Those factors must be brought into account in an assessment of future damages.

338. I consider that latter factor is fairly and adequately met by applying a discount of 20 per cent to the plaintiff’s damages for future economic loss on account of all potentially adverse vicissitudes to which the plaintiff may become subject.

Non-economic loss

339. On behalf of the plaintiff, it was submitted that his damages for non-economic loss should be assessed in the amount of $316,200. That submission was initially made on the basis of an argued assessment of 60 per cent of the indexed maximum awardable amount for non-economic loss, namely $527,000. That initial submission was based on the erroneous assumptions that there was such a cap, and that s 79A of the Motor Accidents Act 1988 applies. In oral submissions that error was acknowledged, and corrected, but the monetary submission of $316,200 was maintained as being apt to the plaintiff’s circumstances.

340. In contrast, the defendant submitted that if the plaintiff was entitled to an award of damages for non-economic loss, such an award should be in the amount of $200,000. In my view, an assessment in that amount is inadequate to the plaintiff’s circumstances as I have found them to be. I consider that the amount submitted on behalf of the defendant does not represent fair compensation for the plaintiff’s multiple aggregated and complex accident-related problems as they have impacted on his pain, suffering, and loss of amenity of his life.

341. The plaintiff underwent a frightening experience, which has left him with ongoing physical symptoms of nerve pain in his right chest wall. He has ongoing distressing psychological symptoms which justify the diagnosis of chronic PTSD and an adjustment disorder with major depression. He has random panic attacks, with frequent and related episodes of faecal incontinence. These problems have emerged since the subject accident almost 11 years ago, and the medical evidence concerning the prognosis for any significant resolution of those problems after treatment, remains speculative, uncertain, and therefore in my view, poor.

342. The last psychiatric review of the plaintiff took place on 4 December 2017. At that time, Assessor Prior, a consultant psychiatrist, confirmed the plaintiff was suffering from the conditions he identified as: post-traumatic stress disorder, co-morbid major depressive disorder and secondary panic phenomenon, and a gambling disorder that was in remission, and that latter problem was secondary to the chronic PTSD and major depression: Exhibit “D”, pp 562 – 591, at pp 583 – 584.

343. Following that review, Dr Prior prepared a tabulation of his reasons for those diagnoses, and he canvassed the key categories of the plaintiff’s day-to-day functioning as they were impacted upon by his psychological and psychiatric symptoms. Those categories comprised: the plaintiff’s self-care and personal hygiene; social and recreational activities; the ability to travel outside the home; social functioning; and matters to do with the plaintiff’s concentration, persistence and pace: Exhibit “D”, pp 585 – 590.

344. A brief review of Dr Prior’s survey of those factual matters is instructive, as those matters are influential on the assessment of the plaintiff’s damages for non-economic loss.

345. As to the plaintiff’s self-care and his personal hygiene, the plaintiff is generally amotivated and therefore, his hygiene is less than adequate. He gets stressed performing routine tasks. He is forgetful in several respects, and he is dependent on his partner to remind him to take his medication. His frequent and random experience of faecal incontinence is distressing to him, as was evident at the hearing, as observed and noted at paragraphs [23] to [25] above.

346. As to the plaintiff’s social life and recreational activities, these are much diminished, and he no longer plays golf, a past-time in which he was accomplished before the accident. He avoids crowds, and he avoids social interaction.

347. As to his ability to travel, he undertakes relatively short journeys in his vehicle. He is prone to anger and road rage, and in that regard, he is at risk of deliberate self-harm when he drives and becomes angry. Understandably, he is hypervigilant when around trucks and vehicles with wide loads, and around farm machinery. He is prone to anxiety in such situations. In such circumstances he could become faecally incontinent if the situation involved feelings of panic.

348. As to the plaintiff’s social functioning, he has become irritable with his children. His relationship with his partner has become strained, his relationships with his parents, a brother, and his partner’s parents have become difficult, and this is associated with estrangement. He is not capable or reliable in relation to the care of his children, and his circle of friends has become much reduced.

349. As to the plaintiff’s cognition, concentration, persistence and pace, those functions are impaired as he struggles to think, his concentration span is reduced, he is forgetful of names and with regard to commonplace obligations such as needing to attend to his children. He frequently misplaces personal items. He finds it difficult to persevere and to complete tasks. The plaintiff has both subjective and objective cognitive difficulties. His medication intake can exacerbate some of those problems.

350. The plaintiff periodically has nihilistic thoughts, and he has in the past taken significant actions on those thoughts in a suicidal manner. In my assessment, those factual matters as surveyed and summarised by Assessor Prior have had a substantial negative impact on his life, and on his ability to enjoy his life.

339. In my view, those matters, as explained in the medical evidence reviewed at sub-paragraphs (1) to (286) of paragraph [98], and at paragraphs [101] to [278] above, and the summary and findings relating to the plaintiff’s disabilities, at paragraphs [279] to [289] above, call for a significant award of damages for non-economic loss, towards the upper end of the range. I have avoided assessing such damages at the very upper end of the range because of the recognised need to ensure there is no effective overlap with the award of damages for loss of earning capacity.

340. The combination of the plaintiff’s experience of physical pain and disability, as he describes it, and which I accept, along with his post-accident scarring, his significant accident-caused psychological problems, and his episodic faecal incontinence, represent a significant and major recurring interference with the otherwise normal amenity and the enjoyment of his life.

341. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $280,000.

Past loss of income

354. On behalf of the plaintiff, it was initially submitted that his claim for damages for past loss of income should be assessed in the net amount of $601,344. The basis of that submission was the net equivalent of a pre-accident annual salary of $74,000 per annum gross, continuing from 15 May 2007 until the commencement of the hearing. In final submissions, the net amount for past economic loss was submitted to be $584,220, which was the figure arithmetically calculated and submitted by the defendant, and agreed to by the plaintiff, as being correct.

355. In contrast, the defendant submitted that the appropriate award for past loss of income should be in the discounted amount of $393,044. That submission was based upon a calculation of past net comparable earnings of $584,220, but discounted on account of an argued residual earning capacity in the plaintiff comprising an average of 2 days per week after 1 July 2009, and after applying a further discount to allow for the suggested contingency that the drilling work which underpinned the plaintiff’s submissions, may not have been continuously available to him in the long term, including beyond 1 July 2009.

356. In my view, the defendant’s submission calling for a discounted award for past economic loss proceeds upon unjustifiably pessimistic assumptions that are not adequately supported by the evidence.

357. Before the subject accident, the plaintiff was assessed as being medically fit for the type of work that formed the basis the submitted calculation. Furthermore, there is no reliable evidence to suggest that the plaintiff would have had any residual limiting effects of his injury on 1 May 2007, which, on the evidence, seemed to have been of a temporary soft tissue nature, without any long term impact upon his earning capacity. The overall effect of the sequential certification of the plaintiff’s unfitness for work until the present time reveals the defendant’s submission as to a residual earning capacity to be unrealistic. No contrary evidence was called by the defendant on those matters: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47]; s 5D of the CL Act.

358. The remuneration rates that based the calculation of the plaintiff’s past loss of earnings were supported by factual evidence of labour market pay rates for the mining industry relating to drilling in remote locations: Exhibit “E”, pp 592 – 594. There was also evidence of the availability of work for Driller’s Offsiders and Drillers in that industry. Furthermore, it would be reasonable to infer that if work was available for Drillers, it was therefore also likely that work would be available for Driller’s Offsiders as well: Exhibit “E”, pp 595 – 602.

359. The first question to be addressed in this context is whether the agreed calculation of past comparable net earnings, identified at $584,220, should be discounted in the manner that was submitted by the defendant.

360. The two submitted elements of the defendant’s argument seeking to justify a discount were: first, the assumptions that the plaintiff would have had a residual earning capacity of 2 days per week after 1 July 2009, and secondly, subsequent to that date, a further element of discount is required because of a claimed contingency that the plaintiff’s pre-accident work, or work of that kind, would not have continued to be available to him after 1 July 2009.

361. As to the first element of suggested residual earning capacity of 2 days per week after 1 July 2009, there is no reliable evidence to reasonably support that submission or to infer a basis for it in fact.

362. In contrast to that first element of the defendant’s submission under present review, I consider that the extensive chronology of medical attendances outlined within in the sub-paragraphs of paragraph [98] above reveals the plaintiff clearly continued to receive workcover medical certificates that validly, and serially expressed clinical opinions to the effect that since the accident, he has remained unfit for his pre-accident duties. If those certificates were considered by the worker’s compensation insurer to be in any material unjustified, doubtless, the plaintiff’s weekly payments of worker’s compensation would have been terminated or reduced. Whilst the decisions or non-decisions made by the worker’s compensation insurer in that regard do not bind the defendant in those proceedings, no reliable medical evidence has been introduced into these proceedings that would reasonably serve to justify the defendant’s submission that the plaintiff had a residual earning capacity for 2 days per week after 1 July 2009.

363. As to the second element of the defendant’s submission for a discount to be applied, namely a suggested doubt over the continued availability of work over the period in question, namely, that the plaintiff may not have had continuous work available to him over the period commencing from the time of his injury until the present time, the length of that period, of almost 11 years that has passed since the subject accident, requires that this submission be given some consideration concerning a balancing of some imponderable factors.

364. In the period surrounding and since the plaintiff’s accident, and concerning a good deal of the time since the plaintiff’s accident, it was and is well known in the community that there has been an economic boom in the mining industry. There is evidence that in this State, there is still work to be had of the kind the plaintiff was fit for and engaged in, in that industry in rural New South Wales, if not elsewhere, as well: Exhibit “D”, Tabs 25 – 31, pp 592 – 601.

365. Also in support of the plaintiff’s claim for economic loss is the plaintiff’s evidence of his enthusiasm, adaptability and liking for the work, which was well paid, and because, it was at least in some part, work of a fly-in and fly-out in nature, which meant that the plaintiff had available to him the benefit of consecutive 10 day periods off work to enable him to be at home with his family, albeit at the cost of being on duty and away from home for 20 consecutive days. He was temperamentally suited for that type of work, and it was economically advantageous to him.

366. Those factors weigh against any significant discounting of damages for past economic loss.

367. Weighed against those considerations, and in favour of the defendant’s argument, is the possibility that the work in question may not have been available continuously, either in the employ of the same employer, or there may have been some gaps in the plaintiff’s work continuity, and therefore his past earnings.

368. Having considered the imponderable matters of that kind, I assess the appropriate discount on the plaintiff’s damages for past economic loss at 10 per cent of the agreed net comparable calculation, which, when rounded down from $584,220, yields the sum of $525,000.

369. I therefore assess the plaintiff’s damages for net past loss of income in the discounted and rounded down sum of $525,000.

Fox v Wood

370. The plaintiff has had tax instalments deducted from his payments of weekly compensation. The total of those payments are claimable as an element of his damages assessment: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. Those payments have been agreed in the total amount of $47,239.40 and I therefore assess the plaintiff’s Fox v Wood damages in the amount of $47,239.40.

Future economic loss

371. On behalf of the plaintiff, it was submitted that his claim for future economic loss should be assessed in the amount of $979,832. That submission was based on the underlying premise of a projected continuing loss of $1290 per week net over 33 years at 5 per cent (x 893.6) less a discount of 15 per cent on account of potential adverse vicissitudes.

372. In contrast, the defendant submitted that damages for future economic loss should be assessed at $300,390. That submission proceeded upon the basis of a projection of $650 per week net to age 67 years, less a discount of 30 per cent.

Loss of earning capacity and likelihood of financial loss

373. In order to obtain an award for future economic loss, the plaintiff must first establish that he has sustained a loss of earning capacity: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10]. Secondly, he must establish that any such loss of earning capacity is likely to be productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [4], [7].

374. In my assessment, the preponderance of the acceptable medical and medico-legal evidence, as has been reviewed at paragraphs [323] to [328] above, indicates that the plaintiff has been rendered unfit for his pre-accident employment, or similar employment, to the extent that his earning capacity has effectively been totally destroyed. He has therefore been effectively rendered unemployable.

375. It is clear from the foregoing finding, that the plaintiff has suffered financial loss as a result of his injuries.

376. My findings at paragraphs [323] to [328] indicate that the plaintiff’s case fulfils both those cited criteria concerning loss of earning capacity productive of financial loss.

377. The principle for assessment of future economic loss to be applied is that where it is possible to proceed to a calculation of projected future loss, that approach, if justifiable, is to be preferred to a more generalised lump sum or buffer approach: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].

378. In this case, when awarding damages for future economic loss, I must first be satisfied that the assumptions made about the claim for the plaintiff’s future earning capacity or other events on which this aspect of the award is to be based, accord with the plaintiff’s most likely circumstances, but for his injury: s 126(1) of the MAC Act.

Most likely circumstances but for the injury

379. I find that the plaintiff’s most likely circumstances but for his injury, on 15 May 2007, were that:

1. He would most likely have remained in reasonably good health, subject to the normal vicissitudes that would face any individual in daily life, who was engaged in work, including heavy work, and work that involved travel;

2. In the relative short term, he would most likely have experienced a recovery from his soft tissue injury sustained at work on 7 May 2007. There is no evidence to suggest a reasonable basis for a different conclusion;

3. In the meantime, whilst the plaintiff would have been recuperating from his 7 May 2007 injury, he was still employed, and in receipt of worker’s compensation payments which would most likely have ceased when he would have regained his fitness for full work duties in a relatively short period of time;

4. The plaintiff would most likely have pursued work with his pre-accident employer, or in equivalent work. He was assessed as being medically fit and suitable for that work. It was not intellectually challenging or difficult for him, and it provided an attractive financial incentive for him to enable him to support his family;

5. There is evidence that the availability of such work as a Driller’s Assistant remains currently available, at a level of remuneration that would have been attractive to the plaintiff given his limited educational achievements and skills set. That work offered the plaintiff an opportunity to learn and reinforce his skills on the job;

6. The effects of the plaintiff’s accident on 15 May 2007 have permanently eclipsed and overtaken any temporary effects of the plaintiff’s 1 May 2007 accident;

380. In my opinion, the above-stated assumptions about the plaintiff’s most likely circumstances justify the approach of projecting a weekly net sum on the 5 per cent discount tables, but with a just discount to allow for vicissitudes, to calculate the plaintiff’s damages for future economic loss.

Projection

381. The assumptions upon which the award for the plaintiff’s future economic loss assessment are identified at paragraph [379] above: s 126(3) of the MAC Act.

382. The projection of $1100 per week at 5 per cent over 33 years (x 855.7) yields $941,270.

Adjustment

383. The projected amount for the plaintiff’s future economic loss as identified in paragraph [382] above must be adjusted by reference to the percentage possibility “that the events concerned might have occurred but for the injury”: s 126(2) of the MAC Act. That adjustment must include a consideration of the possibility that the effects of the plaintiff’s 1 May 2007 injury may have taken a little longer to resolve, a factor, which on the evidence, I consider should have negligible effect.

384. For the reasons outlined in the foregoing paragraphs, I consider that the relevant percentage by which those damages should be adjusted is 20 per cent. Applying that adjustment to the projected amount of $941,270, the adjusted amount is identified as being in the sum of $753,016.

Award for future economic loss

385. I therefore assess the plaintiff’s damages for future economic loss in the discounted projected amount of $753,016.

Past loss of superannuation

386. the plaintiff’s damages for past loss of employer funded superannuation benefits are assessed at 11 per cent of the amount assessed in respect of past economic loss of $525,000, in the sum of $57,750.

Future loss of superannuation

387. the plaintiff’s damages for future loss of employer funded superannuation benefits are assessed at 11.53 per cent of the amount assessed in respect of past economic loss of $753,016, in the sum of $86,822.

Future treatment

388. The plaintiff’s claim for future treatment expenses was stated to be the subject of a general agreement in respect of particular items, in the amount of $135,918: MFI “7”, par 27; T161.1. When examined, that agreement was ultimately shown to include a mathematical error, which will shortly be explained, and it did not extend to the cost of the plaintiff’s future incontinence supplies.

389. Some elements of the plaintiff’s claim for future out-of-pocket expenses have been agreed: MFI “6”, par 140. Those agreements related to assessments for future general practitioner expenses in the amount of $15,567, psychologist’s expenses in the amount of $15,567, psychiatrist’s expenses in the amount of $15,505, and medication costs in the sum of $30,040. Those amounts total $76,859. The agreed amount was mistakenly submitted to be $135,918. However, that sum was erroneous as it incorrectly included the agreed amount of $47,239.40 in respect of Fox v Wood damages. The correction of that error will be reflected in my findings.

390. The agreement as to future treatment expenses did not include an allowance for the cost of two weeks hospitalisation, as suggested by Dr Klug, namely, $8000 per week or $16,000: T138.31; T139.40. Whilst Dr Klug agreed the outcome of the proposed treatment was speculative, I consider that it is nevertheless reasonable to allow for the cost of that treatment, as it may provide the plaintiff with a degree of benefit.

391. The agreement for future treatment expenses did not include an allowance for the plaintiff’s future incontinence supplies, which I assess will continue at an average cost of $42 per week: T160.39; T110.19 – T110.43. The projection of $42 per week on the 5 per cent tables over the plaintiff’s remaining statistical life span of 51 years (x 983) yields the undiscounted sum of $41,286.

392. The amounts that are agreed, as correctly tallied, total $76,859, to which the hospital expenses of $16,000 should be added, to total $92,859. That amount does not require discounting as those amounts are agreed in respect of the sum of $76,859, and the amount of $16,000 is likely to be a short term expenditure.

393. I consider that the projected amount of $41,286 for future incontinence supplies should be discounted by 20 per cent on account of vicissitudes as outlined at paragraphs [333] to [338] above. This yields a discounted amount of $33,028.The amounts of $92,859 and $33,028 total $125,887.

394. I therefore assess the plaintiff’s damages for future treatment expenses in the rounded down amount of $125,887.

Past out-of-pocket expenses

395. The plaintiff’s claim for past out-of-pocket expenses, including medical, hospital, rehabilitation and allied expenses, which appear in large part to have been paid by the worker’s compensation insurer, has been agreed in the amount of $200,993.48, of which the reimbursement due to Medicare is $5444.20: MFI “9”: T160.8 – T160.9. I therefore assess the plaintiff’s out of pocket expenses in the sum of $200,993.48.

Summary of damages assessment

396. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$280,000
(b) Past loss of income	$525,000
(c) Fox v Wood	$47,239.40
(d) Future economic loss	$753,016
(e) Past loss of superannuation	$57,750
(f) Future loss of superannuation	$86,822
(g) Future treatment	$125,887
(h) Past out-of-pocket expenses	$200,993.48
Total	$2,076,707.88

Apportionment for the plaintiff’s contributory negligence

397. The plaintiff’s damages assessment of $2,076,707.88 needs to be apportioned to take into account the agreed discount for the plaintiff’s own contributory negligence, namely, 20 per cent. This yields a judgment amount in the plaintiff’s favour in the amount of $1,661,366.20.

Disposition

398. There will therefore be a judgment in favour of the plaintiff in these proceedings in the apportioned sum of $1,661,366.20.

Costs

399. The consequence of the above findings is that the plaintiff is entitled to have the costs he has incurred in these proceedings paid by the defendant on the ordinary basis, unless a party can demonstrate an entitlement to some other order for costs.

Orders

400. I make the following orders:

1. Verdict for the plaintiff in the assessed amount of $2,076,707.88;

2. After applying the agreed apportionment of 20 per cent on account of the plaintiff's contributory negligence, judgment for the plaintiff in the amount of $1,661,366.20;

3. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

4. The exhibits may be returned;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 28 March 2018