Alldinger v Du Ranot - [2023] NSWDC 37 - NSWDC 2023 case summary — Zoe

NSWNSWDC

Alldinger v Du Ranot

[2023] NSWDC 37

District Court of NSW|2023-02-17

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-02-17

Catchwords

TORTS - motor vehicle accident - plaintiff cyclist struck by defendant's vehicle - liability admitted
[1982] HCA 3 Giorginis v Kastrati (1988) SASR 371 Graham v Baker (1961) 106 CLR 340
[2001] NSWCA 305 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
[1990] HCA 20 Matar v Jones [2011] NSWCA 304 Medlin v State Government Insurance Commission (1995) 182 CLR 1

Source

Original judgment source is linked above.

Catchwords

TORTS - motor vehicle accident - plaintiff cyclist struck by defendant's vehicle - liability admitted[1982] HCA 3 Giorginis v Kastrati (1988) SASR 371 Graham v Baker (1961) 106 CLR 340[2001] NSWCA 305 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638[1990] HCA 20 Matar v Jones [2011] NSWCA 304 Medlin v State Government Insurance Commission (1995) 182 CLR 1

Judgment (39 paragraphs)

[1]

Solicitors: Michael Migration Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2022/222975 Publication restriction: None

[2]

Table of Contents Nature of case [1] - [3] Evidence overview [4] Principal issues in dispute [5] (1) Plaintiff's background circumstances [6] - [13] (2) Plaintiff's credit as a witness [14] - [23] (3) Plaintiff's most likely circumstances but for his injury [24] - [36] (4) Accident circumstances [37] - [40] (5) Injuries and initial treatment [41] - [45] (6) Review and findings on the medical and allied evidence [46] - [92] Liverpool Hospital discharge summary [47] Treating general practitioner [48] Dr Simon McKechnie, treating neurosurgeon [49] - [55] Moore Rehabilitation Outcomes [56] - [57] Dr Warwick Stening, consultant neurosurgeon [58] - [61] Associate Prof Michael Fearnside, consultant neurosurgeon [62] - [66] Dr Sam Perla, consultant occupational physician [67] - [70] Vocational capacity assessments by Mr James Bryden- [71] - [92] Brown and Prof James Bright (7) Disabilities that continue to affect the plaintiff [93] - [97] (8) Economic effects [98] - [99] (9) Domestic effects [100] - [13] (10) Plaintiff's living circumstances [102] (11) Mitigation of damages [103] - [110] Assessment of damages [111] - [168] Non-economic loss [113] - [116] Past economic loss [117] - [130] Future economic loss [131] - [151] Past domestic assistance [152] - [154] Future domestic assistance [155] - [160] Future out-of-pocket treatment expenses [161] - [165] Past out-of-pocket treatment expenses [166] Summary of damages assessment [167] Offset for payments made by defendant's insurer [168] Disposition [169] Taxation consequences [170] Costs [171] Orders [172]

[6]

(1) Plaintiff's background circumstances

The plaintiff was born in Johannesburg, South Africa, in 1973. He completed his secondary schooling to the HSC equivalent level and subsequently obtained tertiary qualifications described as an N2-N3 National [Electrical] Certificate from Johannesburg Polytechnic. That qualification involved theoretical studies and it did not lead to him obtaining any significant practical work skills. He found that he was not interested in that field of endeavour. He subsequently obtained a diploma qualification as a chef.
In 1994 the plaintiff left South Africa for a year to travel overseas, during which time he pursued construction and gardening work. In 1995 he returned to South Africa. Between 1995 and 1998 he worked there in various roles in restaurants before moving to New Zealand in 1999, where he worked as a chef and caterer. He has obtained New Zealand citizenship. In 2003 he completed a Diploma in Business Studies at a Wellington university.
In 2004 the plaintiff arrived in Australia where he obtained employment in the catering industry in various capacities. At present, because of his New Zealand citizenship, he has not yet been in a position to obtain Australian citizenship. In Australia he has worked as a casual caterer, a demi-chef in a large hotel, a chef in an aged care facility, and a chef in a tavern. He then moved to the Southern Highlands in NSW in 2011 to work as a chef in a hotel in Bowral.
Between 2011 and 2013 the plaintiff worked as a chef in various hotels in the Southern Highlands, and then in a café in that locality. In 2013 he purchased a leasehold café business in Moss Vale for $30,000. That business became known as the Court House Café. He operated that business as the owner/chef with the occasional assistance of some casual employees. Having secured leasehold tenure for that business with an option for renewal, he set about planning for the improvement and expansion of that business.
The plaintiff's aim was to develop that business in order to achieve a greater level of earnings from it with the intention of accumulating savings to provide for his ultimate retirement. His business activities in the café were on that trajectory at the time of his injury. The accident had the effect of thwarting those ambitions.
There was no evidence that the plaintiff had any significantly adverse health issues that would have impacted on his earning capacity prior to the subject accident. He had no pre-accident impediments to carrying out any work-related tasks in relation to his employment as a café proprietor or that of a chef.
Following the plaintiff's accident his business did not develop in accordance with his plans and ambitions. Ultimately, in August 2019, he found it necessary to dismantle and dispose of it for $70,000, which resulted in him incurring a capital loss of about $230,000, after accounting for the funds he had expended to develop the business.
This included loss of the benefit of the sum of $100,000 which the defendant's CTP insurer, QBE, had advanced to him in order to assist him to resume operating his café business pending the determination of this present claim for damages. In November 2019, following the earlier closure of his business in August of that year, he became homeless. He now leads a nomadic unemployed existence living in a van which has been fitted out to enable him to sleep in that vehicle.

[7]

(2) Plaintiff's credit as a witness

A significant credit issue emerged in this case in that the plaintiff had over time been admittedly dishonest with regard to his taxation obligations. The defendant submitted that course of conduct involved deliberate and defiant deceitfulness on the plaintiff's part in order to obtain a material financial benefit for himself. The inescapable implication of that conduct was that he did so at the expense of the Commonwealth and Australian taxpayers.
In light of the plaintiff's concessions as to his non-compliance with his tax obligations, that submission by the defendant must be accepted. The plaintiff's admitted financial misbehaviour in that regard had commenced well prior to his injury. As the fraud was on the Commonwealth and not on the defendant's insurer, the circumstances are therefore distinguishable from the category of cases where fraudulent documents had been prepared in order to make a fraudulent claim for damages against an insurer: Insurance Australia Limited t/a NRMA Insurance v John Checchia [2011] NSWCA 101, at [37], [218].
The defendant submitted, correctly, that as a consequence of the plaintiff's conceded dishonesty, his evidence on all matters of relevance, should be the subject of careful scrutiny before acceptance: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [35].
In applying that approach, having regard to the content of the confirmatory objective medical opinions which I have accepted as to the plaintiff's injuries and disabilities, and on matters concerning the plaintiff's background history, and the nature and extent of his injuries and disabilities, I find that the plaintiff gave credible evidence on those matters. I have concluded that his evidence on those matters should be accepted in light of the medical opinions as to the consistency of the plaintiff's complaints having regard to the nature of his documented injuries.
The plaintiff gave his evidence on those matters in a straightforward, matter-of-fact and understated manner without exaggeration or embellishment. He made frank concessions against his interests when called upon to do so.
I am persuaded that I should accept those aspects of his evidence except with regard to the claimed cause of his right shoulder rotator cuff problems. Those problems emerged well after the accident. I do not accept that aspect of his claim as it was not corroborated by persuasively cogent medical opinion, or other compelling evidence.
On the principal credit issue of concern, where the plaintiff acknowledged he had acted dishonestly with regard to his taxation obligations, he conceded having not accurately declared his earnings from his café business. He also conceded that he had not paid the correct amount of tax that would have been due on his actual earnings.
Although it was to the plaintiff's credit that he candidly acknowledged having engaged in such conduct over a 4 year period for his financial benefit, it is nevertheless discreditable and inexcusable that he did so. In these proceedings he applied for and received the protection of a certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW) in respect of those matters.
Although I have accepted the plaintiff's evidence with regard to the nature and extent of his disabilities, subject to the qualification identified in paragraph [19] above, his concessions as to his unlawful conduct with regard to his tax affairs must be seen to be largely problematic to his claim for damages for loss of earnings and loss of earning capacity.
The reasoning for that view will become clear in the course of the identification of the plaintiff's likely pre-accident circumstances and in the reasons for assessment of his economic damages.

[8]

(3) Plaintiff's most likely circumstances but for his injury

It is plain from the plaintiff's self-description of his personality that he was more comfortable when working on his own rather than working in close proximity to other people. That view is consistent with his history of periods of relatively short term employment, which ultimately led him to settle upon a course of self-employment when he purchased his café business in Moss Vale as a going concern.
I accept his evidence that in purchasing that business he had the plan and the ambition to develop and enhance its profitability by reference to the fit-out and ambience of the premises, the standard of food and service, and also by reference to a plan to extend the trading hours during which he could provide food and beverages to his clientele. That said, I am not persuaded that his ambitious projections for future trading would have been as successful as he maintained in some schedules he had prepared in order to advance his economic loss claim. Those schedules were prepared specifically for his case and did not form part of a pre-accident business plan.
I accept that but for the injuries and the resultant disabilities which the plaintiff incurred as a result of the accident, he would have continued to maintain fitness and good health without any impairment of his earning capacity.
In also accept that the plaintiff's pre-accident experience as a chef and in the catering industry was such, that he was well placed to run his café business and develop it with a view to maximising the profitability of that business. The financial schedules he prepared for his case and the basic ledgers he maintained indicated that he was business-minded and that predisposition augured well for him to successfully grow his business, absent countervailing considerations. Those countervailing considerations must however operate as discounting factors to any assessment of the potential profitability of his business model.
In this case there are two stand-out countervailing features that require consideration. The first, which I shall describe as matters falling under the general heading of conventional vicissitudes, poses no difficulty as such factors are commonly taken into account by applying a discount of the order of 15 per cent on economic damages. The second, the plaintiff's dishonesty as to his tax obligations, is problematic to the assessment of his economic damages.
In my assessment, in this case, on an application of the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, it would be unreasonable to assume that the plaintiff's pre-accident tax-evading business model would have successfully continued unhindered in the long-term without impediment or detection by the Australian Taxation Office.
That view raises two considerations. The first, that of the likely timing of detection of the plaintiff's tax evasion, would most probably have been a random event not capable of precise prediction. The second, that of financial projection of losses due to the effects of the accident, would have to be undertaken on the basis of true net of tax calculations, and not based on falsely inflated figures that assumed undetected evasion of the due amount of tax that ought to have been taken into account in any calculation of loss. The application of this latter factor is simply a function of proper accounting in accordance with applicable authorities: Matar v Jones [2011] NSWCA 304, at [16]; Morvatjou v Modadkhani [2013] NSWCA 159, at [57]-[84].
However, taking into account those factors, a wider consideration arises, namely, the unlikelihood of the plaintiff continuing to successfully run his business as he had done in the pre-accident period on the assumption that he could continue to avoid paying the proper amount of tax. I consider it was unlikely that he would have successfully continued on that course.
I consider that detection of the plaintiff's tax non-compliance would have been inevitable, even though the timing of such an event was uncertain. Once the fraud was detected, the imposition of penalties and interest would have unquestionably followed. The result of those events would have had the effect of eroding any accumulated cash reserves. The plaintiff's cashflow would have been absorbed by this element of debt, and most likely, the result would have been the failure of his business.
The result of that scenario would very likely have led to the plaintiff's bankruptcy as he would have had no financial resources to meet such debts when raised. This would in turn have adversely affected the plaintiff's ability to obtain trade credit from his suppliers, banking facilities, and insurance. It is difficult to see how he could have successfully remained in business in such circumstances. That is so where, as he maintained, one only gets "one chance" at such a business: T57.32 - T57.36; T194.28 - T194.29.
The inevitable likely result would have been that the plaintiff would have been forced to seek work for which he was qualified on the open labour market. This raises the prospect of a period, or possible multiple periods, of unemployment.
Such considerations cast overwhelming doubt on the plaintiff's claim for economic damages as formulated by him. Significant discounts must be applied to any such damages. The result of that analysis is that precise assumptions for future economic loss cannot be reliably identified for the purposes of s 13 of the CL Act or s 126 of the MAC Act. Instead, the appropriate method by which to assess the plaintiff's economic damages is to invoke a buffer approach: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.
I now turn to a consideration of the events of the accident and what then followed.

[14]

Dr Simon McKechnie, treating neurosurgeon

Dr McKechnie issued a number of clinical progress reports that followed his respective consultations. These are contained in Exhibits "A" and "B": on 1 August 2017, 29 August 2017, 26 August 2017, 14 November 2017, 19 December 2017, 20 August 2018, 23 August 2022 (Exhibit "B"), and 27 September 2022 (Exhibit "B").
Dr McKechnie also issued a formal report dated 23 August 2018 addressed to the defendant's CTP insurer in which he acknowledged the UCPR Expert Witness Code.
In essence, Dr McKechnie's historical clinical reports dealing with his treatment of the plaintiff record the fact that the plaintiff made an unremarkable recovery from the surgical decompression and stabilisation of the L1 crush fracture. He recorded the plaintiff's ongoing problems as comprising mild but persistent residual muscular back pain, occasional leg pain, pain in the left shoulder and the left ankle and foot. He recommended the plaintiff have physiotherapy treatment.
Dr McKechnie suggested that the plaintiff pursue core strengthening exercises and avoid heavy work and lifting. He noted the plaintiff's back pain became worse with activities such as repetitive bending and he suggested the plaintiff avoid such activity and not lift anything weighing more than 5kgs. He has identified the presence of a minor disc protrusion at the L5/S1 level with no nerve root impingement but with ongoing chronic back pain. He also identified a possible right rotator cuff problem causing reduced abduction and pain in that shoulder. He did not directly attribute this latter problem to the accident.
In light of those matters, Dr McKechnie's sensible advice to the plaintiff was for him to avoid heavy work or lifting activities. He suggested the plaintiff's indwelling spinal pedicle screws could be removed if the plaintiff wanted to pursue that course as those screws had served their purpose and were now redundant.
Dr McKechnie's 28 March 2018 report to the defendant's CTP insurer concluded with the opinion that the plaintiff's reported signs and symptoms were consistent with the effects of the subject motor vehicle accident. I interpret his comments as referring to the lumbar problems and possibly the left shoulder, but not the right shoulder.
Dr McKechnie's letters and report were essentially historical in nature and the contents were not controversial.

[19]

Vocational capacity assessments by Mr James Bryden-Brown and Professor James Bright

On 10 August 2020, at the request of the solicitor for the defendant, the plaintiff underwent bifurcated vocational capacity assessments by Mr James Bryden-Brown, who has a diploma in manipulative physiotherapy, and by Professor James Bright, a psychologist.
Mr Bryden-Brown's physiotherapy assessment appears to have been face to face with the plaintiff and Professor Bright's psychological assessment was conducted by means of an audio-visual connection. Those experts prepared a 54 page report dated 26 August 2020 in which they set out their functional evaluation of the plaintiff's physical abilities and some theoretical job matches for employment positions that the plaintiff could arguably pursue.
The preface to the vocational capacity report (at Exhibit "A", p 42), indicated that the functional capacity and labour market assessment components of the report were interdependent elements.
Mr Bryden-Brown reported on his physical assessment of the plaintiff: Exhibit "A", pp 44 - 56. Professor Bright reported on his vocational assessment of the plaintiff's abilities: Exhibit "A", pp 59 - 67. Together, they constructed a theoretical "Job Match Report" suggesting the plaintiff could work as a café manager, mobile phone salesperson, clerical support officer, order clerk, sales clerk, despatch and receiving clerk, commercial kitchen sales representative, bookkeeper or office manager. They identified a range of gross salaries for those positions.
They assessed the plaintiff as being capable of and best suited to performing alternative work of a self-paced nature which allowed for postural alteration "as needed", which raised subjective considerations.
The vocational capacity report referred to the plaintiff as "an unreliable historian who tended to give rather rambling accounts and very often had to be brought back to the point". Those expressed impressions were very different to my assessment of the plaintiff's oral evidence, which was generally responsive and to the point.
The vocational capacity report seems to have concluded, on a theoretical basis, apparently without due regard to the impact of the medical evidence, that the plaintiff "should be capable of undertaking full time employment in selected clerical, administrative, supervisory, customer service and sales roles". The report listed the examples cited above and described the plaintiff's potential to secure work in the Sydney region as being "Above Average".
Mr Bryden-Brown said the plaintiff "proved to be a digressive historian" who gave "extended responses to questions and had to be referred back to the specifics of the question". Specific examples of such criticisms were not included in the commentary. He noted the plaintiff was "significantly fear avoidant and pain focussed" during the functional assessment.
Mr Bryden-Brown set out a series of remarks under the head of "Physical Work Abilities", generally stating that the plaintiff demonstrated abilities such as sitting, standing, walking, elevated work with grip strength and bi-manual dexterity.
Mr Bryden-Brown identified the plaintiff's "Physical Work Restrictions" as being crouching, kneeling, "waist to Crown (sic) lift", and stair climbing. In that context, he made no mention of the medically contra-indicated activities of repeated bending and lifting of certain weights. For this reason alone, I consider that the vocational capacity opinions of Mr Bryden-Brown should be substantially discounted and not accepted.
Mr Bryden-Brown concluded his remarks by stating: "The results of this assessment also revealed that Mr Alldinger is currently physically capable of returning to the workforce in a range of alternate roles. He demonstrated abilities in sitting, standing and walking. He is currently best suited to self-paced work allowing postural alteration as needed. Appropriate roles for Mr Alldinger would include selected clerical, administrative, supervisory, customer service and sales roles. In selected roles, Mr Alldinger is considered currently physically capable of full-time work. While this report has made conclusions based on Mr Alldinger's physical abilities, it needs to be correlated with those of appropriate psychologists or psychiatrists regarding his psychological suitability for work and for specific jobs relevant to their responsibilities and working environments." [Emphasis added]
The last cited paragraph, with the identified added emphasis, seems to me to be vaguely expressed in terms that are difficult to co-relate to the issues in the case, as the plaintiff's case does not have psychological or psychiatric components. In my view, the cited opinion seems formulaic rather than relating to the factual content of the plaintiff's claim.
Professor Bright's assessment was prefaced with the following qualified statement: "Due to current circumstances with COVID-19 this assessment was conducted using video-mediated methods (including remote audiovisual presentation of test instructions and stimuli, and remote observation of performance via audiovisual technologies). The impact of using video-mediated administration methods has begun to be evaluated by scientific research. While every effort was made to simulate face-to-face assessment practices, the conclusions and recommendations provided in this report are being advanced with that reservation."
Professor Bright reviewed the plaintiff's personal, family, educational and his employment history. He also reviewed the events of the accident and the plaintiff's present living circumstances. He stated that the plaintiff "appeared to be excessively pre-occupied with his problems although he was co-operative" and appropriate throughout the interview. He described the plaintiff's descriptions as "very overelaborated responses", "somewhat meandering and difficult to follow", and he "did not appear to be a particularly reliable historian". Those assessments were different from my impressions of the plaintiff's oral evidence.
The single psychological issue which Professor Bright identified in his report (at Exhibit "A", p 65) was that the plaintiff did not feel "psychologically safe" in his previous accommodation, but he did not seek out an elaboration of the reasons why that was so.
Professor Bright made a critical comment on the plaintiff's presentation, as follows: "There were some inconsistencies in his presentation, for instance he said he struggled to sit for any length of time but was noted to sit for more than 70 minutes looking at a computer screen for the zoom assessment without any postural adjustment or any apparent difficulty."
I accept the plaintiff's evidence to the effect that he was not afforded the procedurally fair opportunity to comment on that observation by Professor Bright. I therefore discount Professor Bright's opinion on that matter, absent such an opportunity.
Professor Bright noted the plaintiff had a history of interpersonal difficulties with many people with whom he has come into contact. He then stated "Nonetheless", in a sweeping statement without adequate reasons, that there are a range of occupations (as identified at paragraph [74] above) which the plaintiff was qualified and capable of undertaking. I do not accept that opinion on account of the inadequacy of the supporting reasons: UCPR, Sch 7 cl 3(e).
Furthermore, Professor Bright's report must also be read subject to his own self-limiting qualifier, which he stated as follows: "This assessment was undertaken from a psychological perspective. Note was taken of Mr Alldinger's self-reported physical limitations. However, evaluation of these limitations is beyond this assessor's area of expertise." [Exhibit "A", p 66]
In particular, I consider diminished weight should be given to the opinions in the vocational capacity report insofar as part of the assessment as carried out by Professor Bright took place by means of an AVL connection. After making due allowance for the COVID-19 difficulties which prevailed at that time, I nevertheless consider his AVL consultation with the plaintiff was comparatively less advantageous to the courtroom assessment I was able to make of the plaintiff's evidence.
Furthermore, I consider that Professor Bright was perhaps distracted by what he plainly considered to be the negative features of the plaintiff's presentation as noted at paragraph [84] above, whereas, after making due allowance for the frequently observed factor of witness discomfort whilst giving evidence, my assessment of the plaintiff's presentation did not sense any of the negative features which Professor Bright described.
I conclude that I did not gain any assistance from the vocational capacity report tendered by the defendant.

[20]

(7) Disabilities that continue to affect the plaintiff

I accept that the plaintiff has been left with a number of ongoing accident-related disabilities which have had, and which will continue to have, an adverse impact on his daily life, and his amenity and enjoyment of life.
In addition to his mid-line lumbar scar, the plaintiff has persistent chronic ongoing residual musculoskeletal pain and restriction of movement in his low back. That pain occasionally radiates to his right lower limb and it is further triggered by bending activity. He experiences pain in the left ankle and foot. There is a medically observable abnormal function and appearance of his lower back described as a reversal of normal rhythm. He has occasional abnormal sensation in his lower limbs. He also has residual pain and restriction of movement in the left shoulder.
Those problems have caused and will continue to cause the plaintiff difficulty with tasks such as lifting, bending and picking up objects. Therefore, tasks involving repeated lifting and bending are ill-advised activities for him, as is lifting significant weights. The more he engages in such activities the more likely he will suffer undue wear and tear to the adjacent T12 and L2 levels in his spine. This could well bring on a need for further fusion surgery at those levels, with resultant further restrictions and surgical scarring. He also faces the prospect of further surgery to his spine for removal of his redundant indwelling pedicle screws.
The plaintiff has been left with a reduced sitting, standing and walking tolerance. He will most likely have difficulty performing tasks such as crouching, kneeling, stair climbing and lifting objects. The lifting restrictions identified by Associate Professor Fearnside will represent a significant impediment to performing a wide range of work.
Those matters, in combination, represent a significant impairment in the plaintiff's wellbeing and they will plainly adversely affect a wide range of activities so as to seriously impair the amenity of his life.

[24]

(11) Mitigation of damages

In assessing damages in this case, I am required to consider whether the plaintiff has discharged his duty to mitigate his damages: s 136 of the MAC Act. The defendant has the onus of proof for an allegation of a failure to mitigate: s 136(4) of the MAC Act.
At the commencement of the hearing the defendant sought and obtained leave to plead an amendment to the filed defence so as to allege that the plaintiff had mitigated his damages. That course had been raised by the defendant through earlier correspondence.
By letter dated 16 December 2022 (Exhibit "E"), the defendant's solicitor responded to a request from the plaintiff's solicitor seeking particulars of the alleged failure to mitigate. That reply asserted that the plaintiff had, between May and August 2018, failed to seek and obtain medical treatment and was continuing to fail to seek appropriate rehabilitation services. That letter further asserted that between September 2018 to August 2022, the plaintiff had not sought further specialist treatment and had only sought very limited treatment from his general practitioner. It was also alleged that he had failed to seek alternative sedentary employment of the kind identified in the defendant's vocational capacity report.
In final submissions, having regard to the medical and allied evidence, including the plaintiff's own evidence in which he maintained he was unemployable, Senior Counsel for the defendant substantially distanced himself from maintaining that mitigation defence: T9.17-T9.27, T195.38, T201.12.
In my assessment, the facts compel a contrary view to the allegation of a failure to mitigate. The plaintiff submitted to appropriate treatment and he underwent a series of rehabilitation assessments with Moore Rehabilitation Outcomes, a provider nominated by the defendant's insurer. That organisation provided reports to the insurer on 7 September 2017 (Exhibit "A", p 267), 22 February 2018 (Exhibit "A", p 264) and 14 June 2018 (Exhibit "A", p 218). Those reports show that the plaintiff's rehabilitation goals had been achieved, which resulted in the provider issuing a "Case Closure Report": (Exhibit "A", pp 268 - 269).
On 7 September 2018, the rehabilitation provider wrote to the plaintiff as follows: "l am writing to let you know that I have closed your Occupational Therapy file with Moore Rehab Outcomes, because you have returned to operating your café and you reported that you are not willing to engage in recommended treatment as you prefer to spend as much time as you can at the café. As previously discussed, I recommend the following: Purchase and use a compact step-ladder rather than standing on a milk crate to reach items which are beyond standing reach Stretch during mini-breaks several times a day Eat nutritious food every day Write a list of tasks rather than trying to have a mental list of tasks, especially from one day to the next Get to bed by 10pm each night Set aside some time each week for exercise and some time for other non-work activities Reconsider seeing your GP if you are continuing to feel stressed or in pain Try some of the resources for managing stress on the Beyond Blue website - www.beyondblue.org.au I wish you all the best with your continued rehabilitation and recovery."
In my view, the fact that the plaintiff chose not to continue the contact with the insurer-appointed rehabilitation provider, and instead pursued a return to work and renovate his café to seek to re-establish his business, was a relevant subjective consideration that was inconsistent with the asserted failure to mitigate defence that was pleaded: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3, at [12], In my view, in not seeking alternative work, but instead seeking to resurrect his café business, the plaintiff acted reasonably in light of his understanding and perception of his disabilities and the associated work restrictions at the time: Arnott v Choy [2010] NSWCA 259, at [155].
Therefore, absent satisfactory cogent evidence, I find that the defendant has not discharged the onus of proof required to sustain the alleged defence of a failure to mitigate. The assessment of the plaintiff's damages must therefore be undertaken without regard to that rejected defence.

[27]

Past economic loss

Initially, the plaintiff submitted that damages for past economic loss should be assessed at $341,050. In final submissions this submission was reduced to $258,408.78. In contrast, on behalf of the defendant, it was initially submitted that this head of damage should be assessed in the sum of $150,000. The defendant's ultimate past economic loss submission conceded the amount of $249,600.
The defendant relied upon a forensic accountant's report dated 21 April 2021 which was prepared by Mr Lance Kahler, of Vincents: Exhibit "A", pp 222 - 258. That report identified and analysed other financial schedules and materials (Exhibit "D", pp 38 - 281), and referred to a volume of material that reproduced copies of the plaintiff's income tax returns for the financial years ending 30 June 2013 to 30 June 2019 inclusive: Exhibit "1".
Mr Kahler undertook an analysis and review of the plaintiff's records of the weekly trading performance of his café business in conjunction with the plaintiff's bank statements and his income tax returns. The context was in the plaintiff's claim for $341,050 for past loss of income and $3,334,225 for future economic loss.
Following that exercise, Mr Kahler concluded that the plaintiff's bank records revealed that his pre-accident trading results from his café business were far superior to the more modest trading results that were disclosed in the plaintiff's income tax returns.
Mr Kahler therefore concluded the plaintiff had grossly understated both the gross income of the business and his taxable income from the business: Exhibit "A", p 223.
When the plaintiff's attention was drawn to those materials he acknowledged that he understated his income to the extent of about $200,000 over a four year period of trading. That concession was irresistible as it was made in conformity with the plaintiff's own documents which contained statements that were conceded by him to be untrue: T113.26 - T113.30.
The parties approached the calculations of this head of damage from different perspectives.
The defendant's ultimate past economic loss submission was based on the adoption of a simplified rounded figure of $1200 per week net over a four year period, as extracted from the Vincents forensic accounting report of Mr Kahler.
In contrast, the plaintiff's past economic loss submission was more complex. The first element of the plaintiff's submission as based on the plaintiff's disclosed pre-accident gross weekly income of $1000 per week, which equated to $817 per week net. The first element of the plaintiff's submission claimed $34,314 for a period of 42 weeks of total incapacity during which the plaintiff could not have worked. The second element adopted the net weekly loss figure of $1231.29, identified in the Vincents report, which over the ensuing 182 weeks claimed, equated to $224,094.78. Those two elements when combined totalled $258,408,78.
In broad context, the respective submissions are not materially different and may be conveniently rounded off at $250,000. However, in assessing this head of damage, I consider that some discount should be applied to reflect a series of factors that must be taken into account.
In that regard, the first discount includes the possibility that for a time, the plaintiff's post-accident earnings may not have recommenced or continued at the pre-injury level following re-opening of his café after closure for renovations. It must be recognised that there were other businesses in the area that were in competition with his business.
Secondly, the plaintiff would have needed to rely on the availability of hired help in his café and this may not have been available to him at the low rates he was paying casual staff.
Thirdly, putting aside the foregoing factors, I consider that the plaintiff would most likely have been unable to resume or continue trading as he had been before his accident if the taxation authorities caught up with his taxation delinquency. In those circumstances, he would have been compelled, on pain of bankruptcy, to part with whatever accumulated monies he had in order to meet his taxation obligations. He would have then been left in an impecunious situation and he would have been unable to continue trading, which would have left him in the position of having to try his luck on an uncertain open labour market.
Taking those discounting factors into account, also including an allowance for conventional potential adverse vicissitudes, I assess the plaintiff's past loss of earnings in the discounted sum of $225,000.

[28]

Future economic loss

On behalf of the plaintiff it was initially submitted that damages for future economic loss should be assessed at $2,300,000. In contrast, on behalf of the defendant, it was initially submitted that this head of damage should be assessed in the sum of $250,000. Ultimately, in final submissions, those figures were modified to $804,122.81 and $325,000 on behalf of the plaintiff and the defendant respectively.
The plaintiff's case is that he is not only incapacitated for his pre-accident role as a café proprietor, but that in addition, he is totally incapacitated for any other employment. The defendant accepts the first of these premises but not the second. It can therefore be accepted that the plaintiff has suffered an impairment in his earning capacity that is likely to be productive of financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.
The defendant argues that the plaintiff retains a significant residual earning capacity and points to the plaintiff's evidence in which, variously, he first steadfastly refused to concede, and then later reluctantly conceded, he retained some of the skills associated with the role of a café manager, for example, his evidence between T162.14 to T175.37, and elsewhere.
A difficulty in assessing the plaintiff's residual earning capacity is that the plaintiff has not until recently made applications to try to obtain alternative work and he only did so in order to seek to rebut the defendant's assertions of a retained earning capacity.
A further difficulty in that regard is that the plaintiff seems to be convinced he cannot work in any productive capacity. In my view, that attitude cannot be sustained by reference to the medical evidence. The medical opinions are to the effect that he can work in limited circumstances, where he can pace his activities and where he can observe physical restrictions on certain bending movements, repeated bending, and limit the lifting of weights of more than 2kgs. That medical evidence does not support a claim of total loss of earning capacity as advanced by the plaintiff. Instead, that evidence supports a claim for partial loss of earning capacity, albeit a substantial one.
It appears that the plaintiff's recent online attempts seeking out alternative employment only arose after an assessment hearing of his claim in the Personal Injury Commission. He only took those steps in order to seek to disprove the contention of the defendant's insurer to the effect that he had an unexercised retained earning capacity: T75.45 - T76.27.
At the hearing in this Court the defendant makes the valid point that those attempts, some 10 - 12 in number, would have been unlikely to meet with success if the resume used by the plaintiff (Exhibit "C") was relied upon, as it is devoid of any reference to his more recent work as the proprietor of a café.
The defendant in effect argued the plaintiff's attempts at finding work were unreasonable in that they were belated, citing the "first" rule of mitigation referred to in Mayne and McGregor on Damages; 12th Ed (1962), at par 144, which referred to a plaintiff being required to take all reasonable steps to mitigate his loss: Tuncel v Renown Plate Co Pty Ltd [1976] VR 501, at pp 503-504.
Two things must be said of that submission. First, the wording of s 136 of the MAC Act is different and less onerous than the statement cited in Tuncel: Arnott v Choy [2010] NSWCA 259. Secondly, it does not pay due regard to relevant subjective factors.
I consider the defendant's approach involves an unduly harsh criticism of the plaintiff as it fails to reflect the plaintiff's belief, genuinely held albeit misplaced, to the effect that he is totally incapacitated for work. As already stated, citing the decisions in Fazlic and Arnott, which confirm that such subjective factors are relevant. Those factors serve to disapply this element of the defendant's submissions.
I do not accept the defendant's submission to the effect that the plaintiff has earlier deliberately refrained from seeking out work in order to bolster or enhance the monetary value of his present claim. I accept that he does have the disabilities and related impairments which are summarised at paragraphs [93] to [97] and [98] to [99] above.
It is well understood that the doctrine of mitigation does not require an injured plaintiff to become an economic slave in order to reduce the defendant's liability to pay compensatory damages: Medlin v State Government Insurance Commission (1995) 182 CLR 1, at p 25; [1995] HCA 5. I accept the plaintiff's belief that, since he closed his café in August 2019, his injured state had prevented him from seeking out and performing any meaningful work.
That said, the plaintiff has a little over 17 years of normal working life ahead of him. I am satisfied that over time, he will come to realise that, in light of an appreciation of the effect of the medical and allied evidence as summarised in these reasons, his prior attitude by which he thought he was not capable of meaningful work, will necessarily change. I am satisfied that it is more probable than not that he will in the future take realistic steps to seek and obtain work within those defined limits in order to provide for his retirement, consistent with his pre-injury ambitions.
Accordingly, some significant allowance must be made for the plaintiff's retained or residual earning capacity against the range of base figures suggested by the parties as representing the plaintiff's earning capacity as an employee with his skill sets, but for his injury. That range is between $1200 to $1231.29 per week, or $1200 net in round figures. That latter amount, projected at 5 per cent over 18 years (x 625) less 15 per cent for vicissitudes, yields a background calculation of $637,500.
In addition, to a calculation along those lines, the plaintiff seeks an economic buffer sum of the order of $150,000 for the post-accident loss of the opportunity to work in his own café and grow that business into a successful undertaking. Counsel for the plaintiff correctly acknowledged that element of the claim as being aspirational.
It is not only aspirational, but it is unacceptably based on a series of untenable assumptions such as a continued viability of the business despite the plaintiff's tax problems earlier described, and because the schedules and assumed working hours, and anticipated patronage numbers relied upon by the plaintiff involved unwarranted speculation which cannot form a reasonable basis for making an allowance for a buffer of that kind.
In my view, the plaintiff's café business was destined to fail at some point once his tax evasion came to the attention of the authorities, as was inevitably the case. For those reasons, I decline to award a buffer for the loss of opportunity to continue and profitably develop the café business.
This leaves the question of how the plaintiff's residual earning capacity should be assessed. This arises against the background of the projection of potential net earnings of $637,500, as exemplified at paragraph [144] above.
The evidence does not permit a precise calculation of the plaintiff's residual earning capacity. In giving full force to the medical and allied evidence summarised at paragraphs [47] to [92] above, which indicates that his residual capacity is real, significant, but not great.
In those circumstances, I consider the most appropriate method of compensating the plaintiff for his future loss of earning capacity is to award a significant sum as an economic buffer: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
In taking those matters into account, doing the best I can to be fair to the plaintiff and not unfair to the defendant, I assess the plaintiff's future loss of earning capacity in the buffer amount of $450,000.

[30]

Future domestic assistance

On behalf of the plaintiff it was submitted that damages for future domestic assistance should be assessed at $125,000. In contrast, on behalf of the defendant, it was initially submitted that there should be no award for this head of damage.
In final submissions the defendant conceded that there should be a buffer amount awarded for future domestic assistance in the amount of $50,000.
The plaintiff's first submission on this head of damage was that it should be assessed in the precisely framed sum of $116,908.90. The submission assumed an allowance of 3 hours per week of assistance at $55 per hour, or $165 per week projected on the 5 per cent tables, over a projected life expectancy of 35 years, discounted by 15 per cent for vicissitudes, and deferred for a year, pending the plaintiff obtaining alternative accommodation to living in his motor vehicle.
In my view, the approach suggested by the plaintiff was based on some problematic assumptions. Whist the hourly rate of $55 for domestic assistance on a paid commercial basis seems conventional and acceptable, the estimate of 3 hours per week is hypothetical as the plaintiff does not presently live in conventional premises where heavy duty tasks such as moving furniture and cleaning in awkward to reach places would be required on a regular basis. That said, it seems that tasks involving moving furniture and repeated bending, including vacuuming in awkward places, are tasks for which the plaintiff would need such assistance when he eventually moves to suitable premises.
At present it remains uncertain as to when the plaintiff would be in a position to either rent or buy premises in which to take up residence. He does not have Australian citizenship and he may not be able to remain as a long-term resident in this country. When he does eventually move into such premises, it seems clear, from his evidence of his earlier history, he will not need large premises that would require extensive cleaning and garden maintenance. His needs will be more modest. Therefore, the assumption of 3 hours of assistance per week and a commencement of the need in a year's time should be seen as involving a degree of speculation. Those elements contraindicate a precise approach as was contended by the plaintiff.
Instead, the evidence leads me to the view that a discounted buffer approach to this head of damage is required, but for a greater amount than that which was conceded by the defendant. This is because the plaintiff will have difficulties with regular cleaning tasks involving lifting and bending. Some allowance must be made on that account: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [47] - see par [52]. On that basis I assess the plaintiff's damages for future commercially paid domestic assistance in the sum of $80,000.

Alldinger v Du Ranot

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