(1961) 106 CLR 340
State of New South Wales v Moss [2000] NSWCA 133
Source
Original judgment source is linked above.
Catchwords
(2012) 61 MVR 245
Malec v JC Hutton Pty Ltd [1990] HCA 20(1990) 169 CLR 638
Graham v Baker [1962] ALR 331(1961) 106 CLR 340
State of New South Wales v Moss [2000] NSWCA 133
Judgment (11 paragraphs)
[1]
Solicitors:
Turner Freeman, Solicitors for the Plaintiff
Hall & Willcox, Solicitors for the Defendant
File Number(s): 2021/00078088
[2]
Judgment
By Statement of Claim filed 19 March 2021 the plaintiff sues for entitlements pursuant to Motor Accidents Compensation Act 1999 (NSW) consequent of personal injury suffered by him, when a passenger, in a motor vehicle collision on 6 December 2015. The defendant's vehicle left Putty Road, just west of Sydney, and collided with a tree.
By Defence filed 14 May 2021, the Defendant admits breach of duty of care but does not admit that the plaintiff suffered the loss and damage claimed. At paragraph 7 of the defence, reliance upon section 117 of Motor Accidents Compensation Act 1999 (NSW) is pleaded. Particulars of allegations of false and misleading statements are given in that paragraph; however, the defendant does not plead the relief under section 118 Motor Accidents Compensation Act 1999 (NSW). Whilst counsel for the Defendant did cross examine the plaintiff on falsity of statements made by him during the claims process and to assessing doctors; in the trial the defendant did not proceed for specific statutory relief in this regard. I do not consider that statutory relief. The Defendant did cross-examine the Plaintiff on the basis that his evidence of symptoms, impairments and incapacities was at least exaggerated and in parts, false.
A Certificate of Exemption pursuant to section 92(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) entitling the Plaintiff to commence the proceedings, was issued on 27 November 2020.
The trial proceeded as an assessment hearing.
It is common ground that the plaintiff is not entitled to compensation for non-economic loss. At MAS the plaintiff's whole person impairment was assessed as not greater than 10%. The Plaintiff claims under the following heads of damage:
1. Past economic loss;
2. Future diminution of earning capacity;
3. Future out-of-pocket expenses;
4. Future paid care; and
5. Section 83 treatment expenses are agreed in the sum of $13,707.13.
In regard to the Plaintiff's claims for domestic assistance, care and medical treatment, the defendant relies on section 61 Motor Accidents Compensation Act 1999 (NSW) and puts that certificates of medical assessor doctors Jager, Cameron and Davidson are conclusive evidence that the Plaintiff's claims for compensation in this Court under those heads of damages were extinguished. The exception to this is allowance for a single pain management course at the cost of $7,500 which the defendant conceded was certified as reasonable.
The plaintiff does not seek rejection of any of those certificates. The plaintiff's closing written submission at [10]- [12] was:
"[10] The significance of the MAS process is that the authorities provide that in circumstances where an issue has been referred to MAS for determination, the determination of that issue is binding on the parties. The certificates otherwise form part of the evidence before the Court but are not determinative and the evidentiary value of the certificates coloured by the fact that the examinations conducted are not strictly conducted with regard to the UCPR requirements and obligations for experts nor are the assessors compellable witnesses.
[11]…….
[12] MAS has also issued a determination with respect to some aspects of a potential entitlement to care and some treatment modalities and regimes. A claim is made in these proceedings for care and treatment that has not been the subject of a treatment dispute in MAS."
The apparent dispute between the parties in regard to the MAS assessor certificates is a factual one: whether or not each treatment or domestic service claimed falls outside those certified.
The plaintiff was born in Egypt on 14 March 1991. He was educated to tertiary level in Egypt and achieved in mid-2013 qualifications as a civil engineer at university in Cairo. In November 2013 the plaintiff emigrated to Australia with his father, mother and younger brother. They were granted Permanent Resident Visas.
When opening, plaintiff's counsel informed the Court that the plaintiff did not require an interpreter. I listened carefully in order to discern whether or not he was struggling with understanding questions or with expressing in the English language his answers. I informed Counsel of my observation that he was not suffering difficulty giving evidence in the English language. Counsel agreed.
It was agreed between the parties that the histories recorded in the exhibited medical documentation are evidence of the histories the plaintiff gave but not proof of the fact of the events reported by the plaintiff: T 187. 5 - 15. I made an order pursuant to s 136, Evidence Act 1995 (NSW) so limiting the use to be made of that evidence.
At the time of the motor vehicle accident the plaintiff was working as a casual pharmacy assistant at Discount Warehouse Chemist, Quakers Hill. He lived with his father, mother and brother in Sydney. His father was a casual Uber and bus driver. His mother performed household duties. During evidence in chief, he said that as a member of the family he shared in the cleaning, mowing and household chores. He said that his mother did the cooking and the men of the family did the maintenance and mowing. He was 24 years of age and about to embark on his career.
The medical literature has recorded inconsistent statements by the plaintiff of his pre and post-injury performance of household tasks including cleaning and in particular, in relation to lawn mowing. The lawn was small. The plaintiff estimated that it would only take about 15 minutes to mow the grass. This is further examined in relation to his claim for paid assistance.
The plaintiff explained that his intended career was to use his civil engineering qualification to work in construction. References appear in his oral evidence and in the medical report evidence of his work as an engineer and of performing "engineering" duties. In order to understand his claims it is important to understand the physical and professional tasks and demands of his chosen positions of employment. Unfortunately this is a difficult task because of the vagueness of and gaps in his evidence and as will be seen, inadequate disclosure of work performed. Low back pain was put by plaintiff's counsel as his main impairment for the purposes of his claims for loss of earnings, diminution of earning capacity, future care and treatment.
In closing the defendant submitted that the plaintiff changed his chosen career path, following the motor vehicle accident, from non-physical engineering/office type work to on-site duties as a Supervisor, Foreman, Construction Supervisor, Construction Foreman or Project Manager, the on-site environment of which positions engaged a higher degree of physical work. On the whole of the evidence, I do not find that the plaintiff determined that change of career following the motor vehicle accident. I found his evidence, on the whole, to be persuasive of the fact of his intention both when in Egypt and in Australia to work not in a pure engineering role, full-time restricted to an office, but to have been involved in on-site construction.
He explained that his tertiary qualification permitted him in Egypt to work as a Project Manager, Supervisor or to build houses; but that, in Australia, he had to achieve another certificate and construction work experience in order to work as a builder. He had to work under another builder for two years and gain the endorsement of that builder in order for him to get his builder's license: T 147. 25 - 148. 4.
At commencement of cross-examination the plaintiff described his career choice in context of the proceedings, in the following terms: T 77. 40 - 78.12, 79. 49 - 80. 7, 80. 49 - 80. 1
Q. Can I just concentrate for the moment on the period of 2016, and if I can just go back also to your life goals and what you had in your mind when you did your university degree in engineering in Egypt, correct?
A. Yes.
Q. That was a very competitive position to get into university, wasn't it? It was something you had to get your marks, work hard at school to get into the university course--
A. Yes, sir.
Q. --when you did that? Is that because you had your heart set on having a career which involved work which you could apply your mind to, such as architect design or engineering? Correct?
A. For the energy saver engineer, yes, correct.
Q. You had no desire to be a physical labourer, did you?
A. No.
Q. And that continues to be the case, correct? You wish to continue to develop your skills as an engineer--
A. Yes, sir.
Q. --in the building industry?
A. Yes, sir.
Q. And perhaps even one day have your own building company. Correct?
A. That's my dream.
Q. The sort of things that you see yourself doing would include analysing, designing, and checking drawings. Correct?
A. Yes, sir.
Q. Working with draft persons who were actually, for example, creating reinforced concrete drafting?
A. Yes, sir.
Q. Carry out comprehensive reinforced concrete analysis?
A. As a design, yes.
Q. And design to comply to the applicable construction standards?
A. Yes, sir.
Q. These are all things that you learnt in your degree. Correct?
A. Yes, sir.
Q. And in terms of working in Australia, you have already started familiarising yourself with things like AS 3600, the Australian standards which apply here?
A. It's a little bit different, but yes.
Q. Same principles. Correct?
A. Yes, correct.
Q. You see, that then involves coordinating and participating in meetings with the different teams involved in the project with architects for example?
A. I get this experience from here, not from Egypt.
Q. Indeed, when you came here from Egypt, you really were just starting out on this career, weren't you?
A. That's my claim.
Q. Is it fair to say looking at your work history - and I commend you for it, you've been moving, if I can put it, onwards and upwards - as you gain more experience in the jobs that you're doing, not only are you developing your skills and experiences--
A. Mm-hmm.
Q. Do you agree with that?
A. Yes.
Q. You're also finding yourself in a position where you're able to earn more money for the work that you do. Correct?
A. This situation I had it this year, yes.
…..
Q. For example, when you were working for Morfosis Architects and it's in your chronology, the period of time you did that until this new opportunity came along, you were earning per fortnight I think about $2,692.31 according to the wage records. Would that be right?
A. I don't know exactly the number.
Q. Some pay periods, it was $2,128 but mostly 2,692.31 according to your payroll activity statement from Morfosis?
A. Yes, but let me say something. Morfosis is--
.....
Q. When you took your new job with - sorry, the name of the company is Oscar George, your net pay increased by about $200 a week. Is that right?
A. Yes.
I am persuaded that the plaintiff has maintained from before the motor vehicle accident, a hope to be a builder and not to perform physical labour and trade tasks.
Since recognition in Australia of his Egyptian tertiary qualification, he has generally employed his tertiary engineering qualification in work on-site or visiting sites of his employer as well as in tasks such as explaining plans and directing work for which he is by his engineering degree qualified. His course of work in Australia is consistent with his claim and oral evidence that he has pursued increased experience through this work, toward achieving roles in managerial or supervisory capacities (T 125. 40 - T 127. 30) and his hope to one day become a builder. He described as his "dream" to one day have his own building company: T 128. 20. The plaintiff does not seek to do manual or trades work. His ambition from before his injury has been and remains to avoid such work.
During evidence in chief the plaintiff said that he could not work as a Construction Foreman because work within that role was too physical and that in the course of seeking experience required for his chosen career path, he could not do physical jobs which involved labour such as being a Leading Hand (T 56. 6 - 36). However, he understood that once he achieved the experience required for positions such as Site Manager, Project Manager or Team Leader; in these roles there would not be physical work with which he could not cope. As he progressed with the obtaining of experience toward the level of those positions, there would be less and less physical work: T 56. 40 - 57. 13.
The plaintiff said during evidence in chief was that after acceptance in Australia during 2016 of his tertiary engineering qualification, but for his injury, he expected that by about this time in 2022, after having achieved seven years' experience, he would achieve work as a Site Manager. He is working as a Site Supervisor. The plaintiff did not give evidence that he would not achieve a Site Manager position. He said that it remained his "hope": T 57. 18 - 58. 17. Examination of his work history shows that he actually will not achieve seven years of experience in supervisory roles until 2024 because in 2020 and 2021 he went into a different role in his own business called BM C2 which he set up with a friend.
Exhibit A is a collection of 6 photographs of the vehicle in the situation of the collision away from the roadway. Exhibit A includes a photograph of a first responder/tent on scene. The plaintiff was transported from the site collision to Westmead Hospital by helicopter ambulance. Exhibit B is the COPS entry including a police officer's Crash Summary Details. On my raising it with the parties, counsel agreed that the exhibits A and B evidence and the fact of transportation by helicopter ambulance, are not factors falling within the expertise of the Court to relate to the assessment of seriousness of injury or of impairment. Rather, those facts are consistent with the agreed proposition that the collision was of significant force and that the plaintiff, on first responder's assessment, suffered injury warranting hospital emergency department assessment.
Exhibit C is the Westmead Hospital Discharge Summary. The plaintiff was discharged, after 3 days on 9 December 2015. The defendant has not raised any relevant pre-existing medical conditions. I proceed on the basis that the plaintiff was in good health prior to the motor vehicle accident.
On admission to Westmead Hospital, the plaintiff was assessed GCS 14/15, oxygen saturation 98% and afebrile. He was observed to be suffering tenderness of his cervical spine and chest wall. The plaintiff suffered the following injuries:
1. Subgaleal haematoma (meaning positioned between the skull and the scalp);
2. a significant laceration of the scalp;
3. left occipital condyle fracture;
4. displaced zygomatic process of right temporal bone;
5. diastasis of right zygomatic temporal suture; and
6. minimally displaced sternal fracture.
On 9 December 2015, the Emergency Department assessment was that nil treatment intervention was required and that the plaintiff could remove the cervical collar. Due to tenderness to the left side of his neck, the cervical collar was left in situ for comfort purposes. The Plastics Team were to be consulted to review treatment needs once facial swelling reduced after one week. In accordance with trauma protocol, CT was performed from head to pelvis. It was found that the plaintiff had suffered a mildly displaced fracture at the left occipital condyle without base of skull fracture. The plaintiff was discharged to home with an appointment for follow-up at the Plastics Clinic at the hospital in one week and with the Trauma Clinic on 28 January 2016. It was recommended he follow-up with his GP in one week.
On 27 January 2016 the plaintiff underwent CT thoracic and lumbosacral spine. Dr Metri reported… "No appreciable disc protrusion. No significant central or exit foraminal narrowing other than disc protrusion notable at the level of L5/S1 where there is a moderate broad-based disc protrusion noted. There is moderate central canal narrowing. There is mild to moderate bilateral exit foraminal narrowing. Dr Metri's comment was: "No appreciable sequelae of trauma. No fracture identified."
Two months after the motor vehicle accident, on 15 February 2016 the plaintiff attended Dr Lee, neurosurgery registrar, for follow-up. In his report dated 16 February 2016, to the plaintiff's GP Dr Moussad, Dr Lee described the plaintiff's updated state and complaints. Relevantly, he reported:
1. neck pain had almost completely settled, and the plaintiff had full and painless active and passive range of motion at the craniocerebral junction;
2. given the significant decrease in pain, the plaintiff had not worn a cervical collar since discharge from hospital;
3. the plaintiff's principal complaint was ongoing facial pain from his right zygomatic arch fracture which was controlled with Panadeine forte and anti-inflammatories; and
4. no further follow-up appointment was required.
Exhibit H contains the clinical notes of the plaintiff's treating GP Dr Moussad for the period 11 December 2015, through to 30 August 2016. Dr Moussad recorded complaints of neck pain, restricted range of movement of neck because of cervical collar being worn, headache, insomnia, right facial pain and swelling and lower back pain with associated restricted range of movement throughout the whole of that period.
Commencing 14 December 2015, Dr Moussad recorded complaints of lower back pain radiating to both buttocks. Between 28 June 2016 and the end of August 2016 (the latest of the doctor's notes tendered) the doctor repeatedly recorded complaints of low back pain radiating to both buttocks and to the right lower leg. Dr Moussad described this as the plaintiff's "main complaint".
Dr Moussad's notes confirm left shoulder pain which, consistent with how it was put in the plaintiff case, resolved over time. The doctor frequently recorded complaints of anxiety symptoms. He provided counselling to the plaintiff during consultation. Otherwise, the documentary medical evidence is indeed sparse as to psychological treatment received by the plaintiff. He was referred for psychological treatment with an Arab speaking psychologist by Dr Moussad and in some clinical literature there is reference to him reporting having attended a psychologist named Mr Mattar, but there is no direct evidence of his having done so, or of what occurred during, or the outcome of those appointments.
Direct evidence of a single treatment consultation with Dr Rastogi, psychiatrist, on 4 February 2017, on referral from Dr Moussad, is Dr Rastogi's report (exhibit K). It records that the plaintiff complained to him of experiencing: "chronic back pain, retrograde amnesia of events, poor retention and recall and poor concentration. He has continuous flashbacks and nightmares and poor sleep patterns. He has feeling of entrapment in the car and has restricted driving. He has difficulty driving and unable to travel long distances. He hates social crowds and shopping places and crowded places. He has continuous flooding memories of accident whilst in car and feels retraumatized. He has become socially reclusive and has lost interest in activities. He is afraid to sleep due to intrusive bad dreams." During his oral evidence the plaintiff did not give further or better evidence of psychological consultation.
The plaintiff was treated with analgesics including endone and panadeine forte. for about three months post injury: T 43. 41 - 45. Afterward he used Panadol and Nurofen for pain relief as required.
He said that more recently he had been taking and continues to take Panadol and Nurofen for flareups of low back pain on a as needs basis.
On 29 April 2017 the plaintiff underwent MRI lumbar spine scanning. Dr Chan diagnosed mild generalised disc bulge at the L5/S1 level with a prominent central disc protrusion with a moderate sized annular fissure. He reported distortion of the anterior theca, and disc material abutting the exiting right S1 nerve root and at the L4/5 level, mild posterolateral disc bulge on the right which was impinging on the exiting right L4 nerve root (Exhibit G). Dr Keller, occupational physician, in his second report dated 29 December 2021 (Exhibit 1), from examination of that MRI, diagnosed that the disc bulge at the L5/S1 level was "mild" and that at L4/L5 a "mild bulge" of the disc was "close to" the L4 nerve root. In the absence of either party calling the doctors I declined the plaintiff's invitation to prefer the opinion of Dr Chan over that of Dr Keller. It is beyond the expertise of the Court, in my opinion, to safely discern the medical diagnostic difference of the anatomical state of injury, if any, between the adjectival expressions those doctors respectively chose to employ in their reports.
Impairment related to this low-back pathology, is the focus of the central issue in these proceedings. The parties contest the extent of symptomatology and its consequence in terms of lost earnings, diminution of earning capacity and reasonable needs for care and treatment.
The plaintiff claims that his low back symptoms have remained unchanged from the time he commenced working after the motor vehicle accident. He gave the following evidence in chief (T 67.16 - 36):
Q. As far as your back is concerned, how has that - what's the condition of your back been from when you started work all the way through to now?
A. The same pain, like, from day 1. The same pain. Like--
Q. Just stopping you there. When you say the same pain from day 1, can you describe to his Honour exactly where you feel it and what you do that might make it feel worse?
A. Yep. If I spend long time or standing.
Q. If you stand for a long time?
A. Long, long time.
Q. What's a long time?
A. Like, more than five hours moving without any break or resting, my back start to hurt me. If I carried something heavy without any hand to help me for the carrying, I have to carry by myself, pain - my lower back start to hurt me again. If I drive long hours, my back, it's hurt me.
Q. Where do you feel it in your back?
A. My lower back.
When asked in court to indicate the location of his pain, the plaintiff stood and placed his right hand on the right side of his lumbar spine: T 68. 5. He said that he could drive for a maximum of one hour before needing to stop and stretch his back: T 68. 25. He said that after a "particularly busy or tough day" at work he would take Panadol as a painkiller: T 42. 36 - 42.
During his work, whilst gaining experience, albeit there are trades and labourers to perform the principal physical tasks, the plaintiff pushes himself within, as he assesses it, the range of activity for which his low back is fit. During evidence in chief he said (T 39. 30 - 45):
Q. In the building when you got on the building. Did you do any--
A. If I had to, I will do. Like, if I--
Q. What do you mean by that?
A. All right. In my chance, because my English is second language, my degree is not from Australia, it's from overseas, so my chance to get the work in Australia, it's, it's not easy. So I need to push myself as much as I can to keep my work safe. So if I need - if I saw something it need to do it by myself, carry something or doing something like this, I will push myself to do it. But I can't do it every day. And when I finish from this work, like, the heavy work, I need to go to home and take my painkiller to - because my pain is going too high.
Q. Where's that pain you're describing?
A. My back. The main thing is my back.
In his oral evidence, the plaintiff gave only sparse evidential description of physical activities required of him during his work to date. At no point did he describe specifically an activity which he was required to do, or attempted to perform, but which he was unable to do because of exacerbation of his back pain. He said of his work whilst contracted to AYZoon (on the Top Place project) that 50% of his work was sedentary, performed at a desk. The following passage from his evidence in chief is a high point of precision of his description of his difficulty in performing physical tasks of work (T 40. 10 - 40):
Q. --supervising - I'm sorry, what happens the rest of the time?
A. The rest of the time, when I be in the office I print the plans, make simply any..(not transcribable)..some answer for the questions. We had a meeting in the office. All this stuff. That's first 50%. The second 50% I need to check all the units the work is done properly. I need to check - organise for next week what we have progress. I organise for my progress. For which - for my situation if I need labour, more labourers or more building hand to doing some job, I need to organise all this stuff. So it's 50/50.
Q. Then if you've gone onto the site and you've said before that you might have to do something physically--
A. Yes.
Q. --what sort of things might you have to do?
A. Like, carry stuff, like, tools. Fix some stuff. If we need jackhammering, I will. If I--
HIS HONOUR
Q. What was that? Carry tools. What else did you say?
A. Carry tools. Carry, like, material if I need to. Doing jackhammer if I need to. I don't have a labourer, I had to do it. I need to finish this job. I need to do it. That's a heavy thing. Like, that's a, that's a heavy sort of..(not transcribable)..
Q. When you say a jackhammer, what - well, I'll just put it to Mr Morgan.
HIS HONOUR: There are a variety of things, from a power drill through Kangas to pneumatic jackhammers. They're vastly different. What are we talking about? This, as I understand it, a site where it's already in a concrete structure, not excavation.
In his subsequent evidence, the plaintiff explained that his reference to a jackhammer was a reference to a battery powered tool for finishing concrete. I understood him to be describing what is often referred to as a "power drill" but in any event, it was a device of about 40 cm size. He was not describing a very heavy tool.
The plaintiff gave evidence in a seated position on day 1 between noon and 1 pm and then 2 pm to 4 pm, being only interrupted at one point, as he was asked to do, he stood and turned to show by placement of his hand, where is back pain is located. On day 2 the plaintiff gave evidence between 12:10 pm and 1 pm and continued between 2 pm to 3:10 pm (when he was asked to wait outside during legal discussion) and 3:30 pm to 4 pm. In total, he gave evidence for 5 ½ hours over consecutive days. He moved from his behind his legal representative, around the bar table to the witness box and from witness box back to his seat. He moved from the witness box through the courtroom doors and back to the witness box. Throughout the whole of his time in the witness box he remained seated. I drew to counsels' attention that in the whole of my lay observation of him he did not display any signs of discomfort or restriction during his evidence. I also shared with counsel my observation that throughout his evidence, he appeared to move his head freely, when turning from forward-facing toward counsel to me, on his right. Further, that when he answered questions in the affirmative, he frequently did so with energetic nodding. My lay observation was that the plaintiff did not display any sign of discomfort throughout his giving evidence. During closing submissions, I re-visited my observations with counsel. Counsel agreed with the accuracy of my observations: T 229. 31 - 50.
When injured on 6 December 2015 the plaintiff had completed two of three written assignments which were required of him by Engineers Australia to achieve local recognition of his degree in engineering which he had earlier achieved in Egypt. Following the motor vehicle accident, he was able to complete the third assignment and lodge it. On 8 October 2016 he was granted Stage 1 Competency in engineering in Australia. Had he sought to achieve the qualification of Chartered Engineer and work as a professional engineer in our community, further study was required. He did not pursue that course.
During oral evidence in chief, the plaintiff claimed that his first memory following the motor vehicle accident was his coming out of hospital, on the way home. According to the medical literature the plaintiff has given inconsistent reports of amnesia consequent of the collision. This was a topic of cross examination.
Having considered the Westmead Hospital Discharge Summary and the follow-up report by Dr Lee, neurosurgical registrar, 15 February 2016, with the clinical notes of the plaintiff's GP, Dr Moussad, I accept that he experienced significant discomfort in the three months following discharge from hospital. I accept his complaints of left shoulder pain, pain and restriction of movement of back, pain to the right side of his face, difficulty opening his mouth and difficulty sleeping. For several months he was required to cut his food into smaller pieces in order to eat. I accept that he wore a cervical collar including when sleeping in an attempt to reduce his discomfort. However not much turns on this. The defendant does not dispute the plaintiff was unfit for work in this period.
During evidence in chief, the plaintiff said that in the period until March 2016 he was resting at home, trying to control his pain and worrying about what had happened to his life. In oral evidence he said that he thought he was "going to die" at the time of the motor vehicle accident. He experienced chest pain when taking deep breaths. He said that he would try to find the right angle for his low back, when sitting to be comfortable. The plaintiff claimed that there was no improvement in his symptoms during the first three months but that thereafter his neck slowly improved, as did his shoulder discomfort. The plaintiff said that during the first three months his family helped him with the showering and "everything". He was unable to work at the pharmacy.
Prior to the motor vehicle accident commencing 2014, he had engaged in a T.A.F.E. course to improve his English language skills. He also worked as a pharmacist assistant part-time to improve his English language communication, particularly to correct his accent and improve pronunciation, at a time when his Sydney friends did not speak English to him: T 19. 05. He earned $84.35 net per week. He made enquiries of and subsequently commenced study to obtain his Certificate IV in Building and Construction through the Open Training Education Network (OTEN). This training was interrupted. The plaintiff attributes this to his not having sufficient time to study on account of his being too busy organising for his upcoming wedding and working to get the experience he needed: T 62. 25. He gave other evidence of difficulty with concentration which he attributed to the motor vehicle accident. The plaintiff did not complete the course and receive his Certificate IV until 2018: T 64. 15.
The parties informed me that Certificate IV is obtained from the Housing Industry Association and "aims to provide skills and knowledge needed by professional builders in the low-rise residential sector of the industry. It is a mandatory requirement for the obtaining of a builder license registration in most states and territories of Australia": T 186. 40. During cross examination, when asked about his career choice in Australia, the plaintiff answered that his study of the Certificate IV course was for the purpose of becoming a builder: T 125. 40 - 126. 2.
The plaintiff maintained throughout his evidence that his experience of low back pain has remained constant throughout. He has ceased playing sport and attending the gymnasium since the motor vehicle accident because of his symptoms.
During evidence in chief the plaintiff said that between March and December 2016 he experienced some improvement with the pain in his neck and shoulder and that he had no restrictions with personal care or showering and clothing himself but was not able to do gardening and help his mother with housework as he had done before. He said that he was unable to play his bass guitar, at first because the strap was too heavy on his left shoulder for his right hand playing and because of back pain. Thereafter he has remained unable to play his guitar because it is too heavy and he continues to suffer his low back pain.
Between June 2016 and September 2016, the plaintiff through personal contacts, worked on a voluntary basis in the building and construction industry with Thomas Engineers. He worked two days per week doing design work, not going to construction sites. His main task was carrying out a comprehensive reinforced concrete analysis and design for AS 3600 compliance. He determined the best structural system and forms to bring the architect's concept into being whilst considering costs, budget and duration. His description of his work included: "When I received project from architect, I will open a file and get a work number from technical assistance. After this, I work closely with the architect to ensure all relevant drawings and information" were received by him and then he would study the position of the structure, size, requirements and material to be used. His then work also involved coordinating meetings with the architect, the project management team and the client: T 81. 40 - 83. 10.
The plaintiff said that his voluntary work with Thomas Engineers required him to sit at a desk all of the time in a small room which he found "hard": T 83. 9. His evidence is not clear as to why he found that role to be hard. It is available on his evidence of complaints to doctors to interpret his evidence as meaning that the hours of sitting caused discomfort and that the physical space containment of an office heightened the anxieties of which he complained following the motor vehicle accident. Alternatively, it is also available on the whole of his evidence, to interpret "hard" as meaning his dislike of working only at a desk in a small room "doing all this". When it was put to him in cross examination that it was work which he could do late in 2016, he answered in the affirmative: T 83. 35.
The work with Thomas Engineers was not the on-site supervisor or foreman work of his chosen career path. He described his purpose as the attaining of experience which he knew he needed to pursue his career path. There is no evidence of why the plaintiff did not work between leaving Thomas Engineers in September and commencing to contract with AYZoon Group. It will be recalled that his tertiary engineering qualification was locally recognised from early October 2016.
It is common ground that from commencing paid work in the construction industry in November 2016 with AYZoon Group the plaintiff used his own ABN to invoice his employers for his work. For the period November 2018 to March 2021, as discussed below, he and a friend set up and operated using the company which the parties referred to as "BM C2". Exhibit 9 contains invoices for the plaintiff's work between approximately mid November 2016 (first plaintiff invoice dated 21 November 2016) and May 2018 (last plaintiff invoice dated 5 May 2018), when having already received the local recognition of his engineering degree, the plaintiff worked for AYZoon Group, on a job called Top Place. His work on the Top Place project was as Site Supervisor. Concreting and structural work had been completed. There was an office on site. The plaintiff organised and supervised the trades and labourers, worked in the on-site office and went to the units to check on the work. It was in relation to this job that he gave the above referred to evidence of working 50% in the office and 50% checking the work performed by trades. I have quoted the plaintiff's evidence in chief that if he saw something which needed to be carried, he would push himself to do it. He gave this evidence meaning when a labourer was not available. He said that he could not do lifting and carrying on an everyday basis.
As I earlier observed, during this passage of his evidence and generally in his evidence, he did not describe the weight or nature of objects which he could not lift and carry. He did not describe specific functions which troubled his low back. He did not say that bending, climbing, use of stairs or ladders, or particular postures caused him pain. But the plaintiff did say that during this work with AYZoon he started to understand what he could and could not do and what he could and could not carry. It was also in relation to this work that he gave the above referred to evidence of jack hammering which on further enquiry was not the use of a large pneumatic device but rather a tool of about 40 cm dimension with which he corrected imperfections in the concrete. The pressure applied, weight, technique for and postures for use of this tool were not described. It was also at this point in his evidence that he stated that after a "tough day" he would take Panadol. The AYZoon work at Top Place was full-time.
The plaintiff said that he left employment with AYZoon Group because the employer required him to do more physical work; T 44. 44.
During cross examination, the plaintiff conceded that he did not only perform work for AYZoon Group between November 2016 and May 2018. When asked whether the invoices went to other companies, he answered that it was not just AYZoon Group but also "some" other companies. He referred to giving his invoices to "my supervisor", being a person who had his own company and that person acted as a middleman between him and the companies he worked for: T 122. 40. During closing submission, it was agreed that the plaintiff did not invoice AYZoon Group for the period 18 November 2017 and 12 February 2018. In closing submissions, the plaintiff maintained continuous work through the whole of the period however agreed that there was no evidence of that other work. Neither party put that he was off work for any part of the period between November 2016 and May 2018. In closing submissions, during discussion of a document entitled "Chronology of Earnings" (MFI 11) the parties agreed that the plaintiff's earnings for the whole of the period averaged $850 net per week: T 210. 9-211. 10. I accept the agreed position as a fair one, on the evidence.
The plaintiff commenced employment with J Hutchinson proprietary limited, trading as Hutchinson's Builders on leaving employment with AYZoon Group. It is agreed that the plaintiff first invoiced Hutchinson's Builders on 15 May 2018. He last invoiced AYZoon on 5 May 2018. His direct evidence was that he moved between those two sources of work with only a one week gap in employment: T 123.2. He remained with Hutchinson's Builders between April 2018 and July 2018 in the role of Defects Manager. He expected that this would be a supervisory role in which he organised the correction of defects before the key was given to the client. His description of the nature of the duties was as follows (T 45. 39 - 49):
Q. What's a defects manager?
A. When they finished from everything, before they give to - the key to the client, we need to make sure everything is correct without any defects for, for, like, the wall, paint, wardrobes, kitchens, bathrooms. Make sure everything is okay before we give the key to the client. It's more quality to - approve more quality for the client.
Q. So the units are basically finished and you're checking the units to make sure they're okay?
A. Yes, sir.
On commencement, he worked with a team but was then required to do more work himself by hand. During evidence in chief he gave "a reason" for ceasing work with Hutchinson's Builders as his being required to do the finishing work by hand including fixing things. He said that it was work which he could not do: T46. 06 - 11.
Again, he did not identify with any specificity a task which he could not do. He did not, for example, recount an experience of lifting or pushing or otherwise working with his hands such that he suffered pain or otherwise was unable to perform the task. During cross examination the plaintiff said that the position at Hutchinson's Builders was only ever introduced to him as a one-off project of duration of 3 to 4 months: T 123. 25 - 28. If he experienced such difficulty with the work as to make him feel that he could not perform it, other than as quoted above, he did not describe that. At this point in cross examination, when again challenged that he left the position because he did not want to perform any physical tasks but aspired to work as an engineer who was doing the management, supervision and compliance work, without "some sort of physical labour"; the plaintiff only confirmed that he did not want to work as a engineer in an office but wanted to be on-site: T 123. 40 - 44. Given that opportunity to describe the type or level of physical work which he could not do, the plaintiff did not. The plaintiff's evidence was: "it's, like, more physical, but-which I can't do it.": T 46. 11.
The plaintiff married in July 2018. His wife works as a draughtsperson.
Shortly after marriage the plaintiff commenced work contracted as a Defects Manager and Finishing Foreman to BMI Maintenance Pty Ltd, trading as Aland: T 46. 36. He lasted in this work for only one month. Again, he said his reason for leaving was that his employer wanted him to do more physical work. His evidence was: "And they wanted to give me by myself without any labourer, without anything, so which I can't do it, so I say sorry, I can't continue to work" (T 46. 45 - 50) and… "they asked me to doing a more job, more physical job, heavy job without any labour or leading hand to give me a hand for this job to give me more hand to do it so I can do it every day per day": T 48. 15. The plaintiff said that he had performed hands-on work on building sites but that at Aland he was doing the hands-on work by himself everyday: T 48. 23 - 35. Again his evidence was devoid of description of tasks which he could manage and tasks he could not manage, postures, stairs, concentration, weights, distances over which he was required to carry things, periods he was required to sit or stand and so on.
It is common ground that the plaintiff first invoiced Aland on 13 August 2018 and lastly on 7 September 2018. The parties agree that the plaintiff's earnings whilst working for Hutchinson's Builders and Aland and were $1300 net per week, being the same rate of earning the plaintiff presently achieves from his work in construction: T 214. 34 - 41.
At the time he ceased contracting work to Aland, the plaintiff was organising with a colleague the start-up of their own business supplying services to the construction industry. They commenced to trade as BM C2 Services Pty Ltd (BM C2). The plaintiff actually traded in this business between March 2019 and November 2020. In chief the plaintiff described his undertaking as follows: T 49. 1 - 10.
Q. It was called BM C2 Services Pty Ltd?
A. That's correct, yes, sir.
Q. Why were you setting that company up?
A. Because I was thinking, all right, if I can doing this job by myself I will continue in one job site or one company for long time, maybe with my - with whatever experience I get it maybe I can use it for something successful for me so like labours, supply labours, supply whatever they want. It's a construction service like whatever the service for the construction, from my experience I can supply I would do it.
During evidence in chief, the plaintiff said that whilst initially the undertaking involved only managing people and working with paper, with the onset of the COVID-19 pandemic, the work slowed so he would do the work contracted with his own hands and his colleague did as well. When the work contracted involved physical labour which the plaintiff said he should not do, his friend would perform it in order to keep the contracts. The plaintiff said that he was doing "very little" work: T 49. 25 - 50. 9. He said they continued in this way until the end of 2020: T 49. 50.
During evidence in chief the plaintiff did not state what his earnings were in the period between finishing with Aland in about September 2018 and his commencement with Morfosis Architects Pty Ltd trading as Cube Build on 15 March 2021. It is agreed that for the period the plaintiff's tax records showed that he declared earnings of only $375 per week net: Plaintiff Closing submission MFI 11- agreed fact from tax records.
In evidence in chief, he said that throughout 2020 he also worked as a Security Officer at Dan Murphy's, Coles Supermarkets and First Choice. For this work he obtained his security licence. He said that he worked Friday, Saturday and Sunday between 5 PM and 8 PM or 9 PM, a maximum of about 12 hours per week. The plaintiff said that he was paid in cash for some of the work but that he declared his earnings to the tax office. During evidence in chief the plaintiff said that during 2020, he continued looking for work in the construction industry as a Site Supervisor: T 51. 24 - 34. He said that he did not apply for work as Defect Supervisor, Finishing Supervisor, Construction Supervisor or Construction Foreman because it involved physical work which he said he could not do: T 51. 45.
I drew to counsels' attention that positions of these titles used by the plaintiff would require work varying in nature from site to site and that the plaintiff was not giving evidence with that particularity of duties performed: T 52. 45 - 53. 19. Nor does the plaintiff's evidence, as I understand it, amount to his having achieved the experience which he said was required for any of the positions of Construction Supervisor, Site Manager, Project Manager or Team Leader by that time or to the present.
Whilst the plaintiff said that he required 7 years of experience on-site to have achieved the experience required for those positions, a delay in this ambition is to be attributed to his evidence of his going into business with a colleague in BM C2, during which, he was supplying labourers and trades but not pursuing his own career path, on-site personal experience. During that period, there was not a builder to certify his satisfactory performance toward achieving his Building Licence. Thus, there was an interruption in his claimed career course for purposes of this assessment. Seven years working under builders, on his evidence, would conclude somewhere about 2024, as I understand him to have explained the requirements of his hoped-for career path to achieving work in those high level/non-physical roles on site or that licence.
The plaintiff did not say that he actually applied for and was denied identifiable employment roles in the period March 2019 to March 2021, except for his sparse and vague description of diminished availability of work due to the pandemic. I understood his evidence to be that he, with his colleague, sought to establish a labour and services supply business, servicing the construction industry and in which role he could avoid physical labour as he had always aspired to do.
There is no independent evidence of the measure of his suitability for those senior on-site roles in which physical work was not required. There is no evidence assessing his performance in the roles in which he did work. No principal contractor or employer or even colleague was called. There is no clear evidence of the availability post-injury, of those roles to him in the open construction industry marketplace. This is not the state of the evidence just for that period between November 2018 (with BMI Maintenance Pty Ltd trading as Aland) and March 2021 (commencement with Morfosis Architects Pty Ltd trading as Cube Build). It is the state of the evidence in his case.
The plaintiff did not give evidence of actual applications for suitable employment in the construction industry made by him but in which he had been unsuccessful. He did not give evidence of actual job opportunities which would have been otherwise available to him but were lost to him because of his low back injury or even because of what he referred to as the Covid 19 related industry slowdown. His case, except for medical report evidence, is premised on his personal assessment that he was unfit due to his injury for on-site supervisor.
Work as a Security Officer had not been disclosed prior to his oral evidence. The defendant was not aware of it until hearing the plaintiff's oral testimony in court. His evidence is that in January 2020 he commenced Security Officer duties.
During his evidence in chief concerning the year 2020 and until commencing work with Morfosis Architects on 15 March 2021 (T 58. 30); he was not asked and did not further volunteer, that his Security Officer work continued to the present day. The plaintiff did say that he had informed his solicitor of his work as a Security Officer during preparation of his case but this was not further investigated. This work, of maximum hours as 12 per week, made up of three evenings between 5 PM to 8 PM and sometimes 9 PM (T 50. 49 - 21) was said to have occurred prior to commencing work with Morfosis Architects. When his counsel asked of the physical duties he performed, he gave the following evidence: T 58. 23 - 29.
Q. The physical requirements on you as a security guard, what were the physical--
A. Just stand.
Q. Just stand?
A. Yes.
During cross examination it was exposed that not only has the plaintiff's Security Officer work continued to the present, but that he did much more in the work than just stand. He pushed supermarket trolleys in trains of six including up a ramp and assisted customers including by carrying boxes of wine to cars.
In the following passage of cross examination it can be seen that the questions started with the plaintiff confirming that his duties as a Security Officer involved "just standing" but then he conceded the trolley pushing and wine box carrying. The passage of evidence concludes with him stating that when he worked at Dan Murphy's, it was his only job. It can be seen that he changed his evidence from lifting boxes containing 12 bottles of wine and carrying them to the customers car only once or twice or a maximum of four times, to him stating that he could not remember how many times. He did not say that it caused him back pain. His evidence was that he would not have carried the wine cases too many times not because of vulnerability of his back but because it was unsafe for his maintaining his license as a Security Officer to do so. His evidence was: T 89. 15 - 90. 16.
Q. You say that it involved just standing; is that right?
A. Yes, sir.
Q. What about collecting shopping trolleys?
A. It's something I had to do it because if the staff don't do - it's not necessarily as security do this job. But it's just stuff shortly and they need help. I had to do it because they give me support at my work. See, the manager tell him - tell to my supervisor, "This guy help us more, so we need continue with us", and that's the main thing for me.
Q. That also involved gathering batches of trolley and pushing them up a ramp; correct?
A. That's the only way to, sir, yes.
Q. You did that during every shift you did at Dan Murphy's; correct?
A. Not all the time. Just that they need me. Like, I can see they need help for this stuff, I need to do it.
Q. Something else you would help them do, wouldn't it, something else you would help them do would be to move boxes in the shop sometimes after a delivery or if people needed help getting them to their car?
A. It's not - it's just happen once or twice, for a reason again because I need to keep this job for me to get money for my family. So if you need to do it, I will do it.
Q. So you would pick up a case of 12 bottles of wine and carry that to the boot of a car of a female patron, for example?
A. I done it, like, twice or - twice or four time maximum. Just if they are - if the customer is really old, he can't carry it, and one of the manager ask me to do it, I will do it.
Q. That happened more than once or twice, didn't it?
A. Sorry?
Q. That happened more than once or twice, didn't it?
A. I can't remember how many time, but, but not having too more because as a security guard I can't carry too much alcohol, alcohol, because it's not safe for my licence.
Q. Let me just ask you about something else that was put to his Honour about this security work being a backup job.
A. Yes, sir.
Q. This wasn't a backup job. This was a job you were doing to earn more money whilst you did other work, wasn't it?
A. Sorry, can you say again?
Q. This was a second job for you, wasn't it? You kept working at Dan Murphy's and, I think, at other premises like Spotlight, after you got full time employment in your field, in your area of expertise; correct?
A. No. As - when I was - I was working at Dan Murphy's, I - it was the only job I had.
Then, when it was put to him during cross examination directed specifically to his work on 28 May 2021, that having started at 6:30 AM as Site Supervisor, contracted to Morfosis Architects trading as Cube Build, at one of its construction sites located at Lasa Street and after working a full day for the company, he performed security work at Dan Murphy's at Colyton between 5 and 8 PM. In combination of those two employments, the plaintiff conceded that after a full day in his Site Supervisor job which required him to travel from site to site operated by Cube Build, doing activities such as transporting hired tools from Kennard's to site and supervising the work on-site; he then performed another three hours of standing, pushing trolleys, carrying boxes and doing whatever else was required of him as a Security Officer. The plaintiff conceded that he would carry the boxes of wine "a few times are day". He then conceded that he "Sometimes" worked a 14-hour day: T 91. 31 - 92. 30.
During cross examination the plaintiff further clarified that he and his colleague trading as BM C2 contracted mainly or only with a company called Claude Neon, the work for which progressively slowed during 2020. Further, that whilst performing the work for Claude Neon, he was also working as a Security Guard: T 125. 1 - 19. It is not reasonably available on his often vague and inaccurate evidence to find on the balance of probabilities the number of days or shifts which he worked as a Security Guard in the period January 2020 to the present day. When it was put to him that during 2020 and 2021 specifically and up to the present day that he has been able to work 14-hour days, the plaintiff answered: "if I had a chance to get more hours, I would do it. I need money for my family.": T 134. 46 - 135. 5.
I gained the impression that the plaintiff had in his earlier evidence in chief minimised his capacity to work in terms of activities of driving, standing, lifting and carrying which he did in fact perform. He was reluctant to make appropriate concessions of the activities in which he engaged for remuneration.
The plaintiff did not leave his employment for Morfosis Architects/Cube Build because it was too hard for his back. I am concerned that he was promoting himself during oral evidence as more incapacitated for maintaining the Cube Build work position than he in fact was. When he moved on from working with Morfosis Architects, trading as Cube Builders to working with Oscar George Pty Ltd, trading as Oscar George Projects, in February 2022, he did so without time off work and for an increase in earnings of approximately $200 per week. I do understand that the plaintiff described the benefit to him physically between those two employments being that in the latter he worked on one site only and was able to avoid driving between sites. His evidence was: T 92. 31 - 93. 18.
Q. I'm sorry, you left this company because you got a better opportunity. That's what you told his Honour. You didn't tell him you left because you couldn't physically do it.
A. It was Murphy, he's always offering to me more money. But it's not like I'm going to many site like, like, like what you said before. I was going to Lasa Street, to Links Avenue. Sometimes another two site in Cabramatta as well. I started with them. But when doing to this, this, and this and this by myself, it was very, very hard to me.
Q. You did not, until I put that question to you, make any suggestion that this job was too hard for you. You simply said when your barrister asked you, left because you got - in fact, you contradicted him when he was suggesting--
A. 100%.
Q. --that. You left for an opportunity which you got with the company with which you now work full-time; correct?
A. Yes, because another companies where I work it was - right now it's just only one site. One thing. I going on it. I left on it. I don't going to any site anymore.
Q. Indeed, the work you're doing on this site, does this have more responsibility on this new job?
A. Less responsibility.
Q. You think less?
A. Yes.
Q. But it's good for your career path, though, isn't it?
A. It's, it's - you can - I can't say bad. It's good for me to get more experience just in the finishing as--
Q. And it's more money.
A. Extra money, yes.
In further cross examination the plaintiff said that the COVID-19 pandemic reduced available work in the construction industry for his career during 2020 but that in 2021 there was construction work available but he could not work because he was not vaccinated (T 123. 11 - 20) or perhaps he meant that the construction industry stalled in 2021 whilst the community achieved vaccination: T 138. 15.
It was between 15 March 2021 and 13 February 2022, that the plaintiff was contracted to Morfosis Architects Pty Ltd, trading as Cube Build. Indeed, he described his position as "Site Supervisor"… managing all the house construction sites they had: T 58. 33 - 50. He managed four or five such sites. Over this period, the plaintiff earned approximately $1064.15 net per week.
He left that employment for a better opportunity in which he would be responsible for just one site and increase his earnings by approximately $200 per week with Oscar George Pty Ltd, trading as Oscar George Projects. Having commenced on 14 February 2022, the plaintiff remained in this employment at the time of giving his evidence.
During cross examination the plaintiff said that he continues to work casually from time to time as a Security Officer, in addition to working in his career in the construction industry.
When asked, in cross examination, how many days he had worked as a Security guard in the three months preceding the hearing, he answered that the last time was at Easter 2022, a couple of weeks before the hearing and that he has worked on weekends at Coles when needed and at a restaurant/pub at which he had worked five or six shifts in the last three months and also five or six shifts at other premises. These were six-hour shifts. He said that sometimes he felt tired and he would move a chair next to him. He said that he was doing Security Work on holidays and weekends but not after construction work: T 137
All of the plaintiff's oral evidence must be considered with the medical evidence and in particular the objective medical findings. The parties contest whether or not the plaintiff exaggerated his history of complaints given to the expert medical witnesses whose reports are in evidence and to treating doctors. Common ground is that the motor vehicle accident caused the soft tissue injuries to his vertebral discs at the L4/L5 and L5/S1 levels shown in the radiological scans.
It is convenient to discuss the expert medical opinion evidence further below; but on the whole of the evidence in the case, the plaintiff as a young adult worker having experienced the extremely traumatic circumstances of the motor vehicle accident, suffered significant and painful injuries, sciatic pain and impairment. Mindful of medical advice that he had suffered significant soft tissue injury to his lower spine, he is entitled to be sensibly cautious of performance of physical work activities in order to protect himself from further injury or exacerbation of symptoms. Whilst I have found his recount of work experience in his chosen career between late 2016 and the present to not identify specific activity which he found himself unable to perform; for those reasons, I consider his evidence with the treating medical literature and objective medical evidence to consistently support finding that to some degree his injury caused limitation for physical work in his chosen calling.
He gave believable evidence that when working in his supervisory role, within which his engineering qualification can be applied to assessment of such things as structural concrete design work, and whilst he was responsible for supervising that trades and labourers performed the manual tasks properly; nevertheless on-site he could not avoid some physical work. When it was put to him that he could call trades or labourers back and would not take it upon himself to perform their work; he answered "Yes, sir. But we have to make the job ready for them before they can start.": T 107. 10 - 16. His answer included that he needed to ready the site for tradesmen to come and perform their work. His above referred to evidence of commencing at 6:30 AM in the morning to bring hired tools on-site from the tool hire business known as Kennard's and even attending Woolworths before going on-site, I understood to be examples of his facilitating readiness of the site and environment for the trades and labourers. At T 107. 35, his evidence was as follows: T 107. 34 - 36.
Q. That's when you get a labourer to come in and do that work, correct?
A. It depends with the company, sir. If something I can do it by myself, I don't have to hire a labourer per day to come to do it.
Fundamentally, at T 107 the plaintiff's answers were a reasonable response to the unreal suggestion within the questions, that it would be acceptable to his employer, in the competition of the open labour market for supervisory positions for him to call upon a labourer or a tradesman in every instance where physical lifting, carrying, pushing or pulling was required.
I accept that during his pursuit of his career in the construction industry commencing as a volunteer in 2016 and to the present a sensible degree of caution to protect himself against further injury or exacerbation of low back symptoms would have reasonably directed him to choosing from the broader market of opportunities for roles as a supervisor in construction, those less likely to present that risk. Real issue is determination of what that degree of disadvantage in the open labour market was and what impairment of earning capacity should be accredited to it. The plaintiff gave the following evidence during cross examination: T 127. 13 - 37.
Q. What I'm saying is even if the accident hadn't occurred, you've managed to continue to gain experience and knowledge and value in the building, construction industry, correct?
A. Yes.
Q. Such that you are now in a position to complete - to continue that course. And I want to suggest to you, even if this accident hadn't happened you would be in about the same position with the same goals as you sit here today. Do you agree with that?
A. I, I'm not agree hundred per cent. I'm sorry to saying this but because, like, when, like, when, like - example, when I get my licence I need to work two years with one builder was under one company for two years without any days off or without anything, straight away to get - to sign for me ..(not transcribable)..to, to, to, to get the licence. But when I start work in this I didn't work in one company more than year and half. So, every time I want to push for something I need to start from again and again and again. That's why I need to continue as a first - two years first then I can study for the - to get my licence.
Q. I'd like to suggest to you that the reasons you might've left various roles in the past three years had more to do you wanting to gain more experience in any particular type of physical work that you said that you needed to do in some of those roles?
A. When you get experience you need to bring a lot of stuff. One of them, like, to know how to doing this stuff by your hand first, to supervisor.
Because of my caution against accepting at full value, the plaintiff's self-assessment. I am not persuaded, on the balance of probabilities that he has been deprived of the opportunity of maintaining two years employment with a builder. I am not satisfied, for instance, that he could not have achieved that with AYZoon Pty Ltd. Generally, his evidence in chief was vague and he has been exposed in cross-examination to be exaggerating his claims of inability to maintain employment in supervisory positions. The exposure of his security work in addition to his construction work severally discredits his claims of lost earnings and impairments. I accept that he probably suffered some exacerbation of symptoms. When taken to the invoices for his work, he offered that when calendar days did not meet invoice days to represent working every day, pain may have caused him to miss work. However, his evidence was not of sufficient particularity for the performance of even a rough calculation of income lost through the restriction of choice of supervisory roles or time lost because of days of due to impairment resulting from the subject injury.
During cross examination and in re-examination the plaintiff was taken to invoices issued by him to contractors for his provision of supervisory duties. He agreed that he often worked 12 days straight or 11 days out of 12 and that he may have invoiced for 24 days of work over 27 calendar days in mid-2017. His most recent position, which commenced on 14 February 2022, with Oscar George Projects, is one of full-time employment: T 111. 45.
His history of employment gleaned during evidence is not persuasive, of finding that after commencing work in late 2016 following the local recognition of his engineering qualification, he has suffered measurable unemployment on account of impairments resulting from injuries caused in the motor vehicle accident. He has achieved his Certificate IV. As I have observed, his evidence does not describe in a measurable sense that injury caused a delay in his achieving the obtaining of his Builders Licence or the other construction roles which he described as suitable of Site Manager, Project Manager and Team Leader. In addition to considerations of affect of low back impairment, he did not describe loss of gainful employment resulting from his injury to other parts of his body. The plaintiff reasonably said that when he feels pain in his neck and shoulder, he uses heat to relax the muscles and is careful of himself during activity and work. Since 2016 he has returned to driving, and if his pain is very bad, he lies on a bed with a pillow under his leg, as he was taught to do by a physiotherapist. He has not received physiotherapy since 2017. For pain he takes Panadol and Nurofen as and when required.
Dr Rastogi, psychiatrist, diagnosed the plaintiff as suffering PTSD from the motor vehicle accident. His complaints of anxiety, particularly in relation to driving or when in closed room spaces, is consistently sprinkled through the medical literature. That he suffers any psychological or psychiatric sequela from the traumatic experience of the motor vehicle accident is however contested on the qualified expert medical report evidence, discussed below.
The plaintiff said that after the motor vehicle accident he felt badly about himself when noticing that other people were building houses and having children whilst he was living in a home unit and "doing nothing". But that when he commenced to work, he started to feel much better, realising that one day he might buy a house and have children.
The plaintiff said that until he was married in July 2018 he continued to receive assistance from his parents and brother whilst he lived at home. By the time he started work he was attending completely to his self-care and cleaning his room but he was still not performing lawnmowing or maintenance of this car. The plaintiff said that when he married and lived with his wife in a home unit at Pemulwuy, Sydney, his wife was not able to provide the level of assistance to him that his family had. He said that because of this he and his wife moved in with his family and they rented their home unit. The plaintiff said that in the future he will not be able to do maintenance or trade work at home because of his low back pain. He said that tasks such as plumbing would require extra help. T 76. 35. He said that he is unable to do gardening work.
Cross examination exposed exaggeration in the plaintiff's claims of his degree of impairment. In my opinion, a simple observation is that his claim that he and his wife moved from their unit in mid-2018 to his parents' home because as a full-time worker she was unable to provide for his assistance needs to the level of help which his family had; is implausible against his then ability to work as a supervisor on construction sites, performing the duties of those employments discussed above. As is obvious and as he conceded during cross examination, all significant maintenance and particularly all outside work including gardening at the home unit was arranged by the body corporate. On his own evidence he was fully capable self-care and was able to clean his room when he commenced work in mid-2016. Whilst it is obvious from his evidence that in his parents' home, his mother performed by far the greater portion of the housework; on the whole of the evidence the plaintiff's claims of level of assistance which he reasonably required for life, is exaggerated when compared to his maintaining his employment as he did. Specifically, whereas during examination in chief, the plaintiff claimed that he is not able to do gardening and not able to do outside maintenance; again the simple observation is that whilst his exercise of caution against the injury to or exacerbation of his soft tissue lumbar disc injuries is understandable; his working life detailed above shows a capacity to perform all physical tasks whether they be inside or outside except for very heavy lifting or carrying. On the whole of his oral evidence, the plaintiff did not say that over those years of working on construction sites he suffered difficulty with stairs, ladders or bending. I repeat, he did not give evidence of a specific experience of performing a particular task which he had to have to cease because of pain.
It is agreed that the plaintiff's intention is to work to a normal retirement of 67 years.
[3]
FURTHER EXAMINATION OF EXPERT MEDICAL OPINION
In closing oral submissions, counsel for the defendant appropriately conceded that compensation for loss of earnings for the period of 6 months, concluding June 2016 would not be unreasonable: T 233. 33 - 42
I now focus on the expert medical report evidence in the consideration of the ultimate questions for determination of:
1. Assessment of degree of functional impairment
2. Assessment of impairment of capacity to earn income
3. Determination of value of compensation for past loss of earnings
4. Assessment of ongoing diminution of earning capacity
5. Entitlement of damages for future treatment; and
6. Entitlement to damages for paid domestic care.
I bear in mind that histories recorded in the report evidence are as stated by the plaintiff but are not proof of the truth of the facts. The evidence shows that the plaintiff has complained of his lower back symptoms to doctors throughout the course of the evidence collected for this hearing. The plaintiff opened on the basis that there are residual physiological manifestations of the consequences of the accident and some residual neck pain but that it is his low back injury which is his "most significant concern". Significant points are:
1. (Exhibit H) Dr Moussad GP on 14 December 2015 (8 Days post MVA) and 17 January 2016 recorded pain radiation to both buttocks;
2. (Exhibit F) Dr Metri report on CT and thoracic lumbar 27 January 2016 to Dr Moussad, moderate broad based disc protrusion L5/S1 (no appreciable sequelae of trauma);
3. In the 15 February 2016 report of Dr Lee, neurological registrar, Westmead Hospital, outpatient follow up, directed to Dr Moussad, focused on the traumatic head injury and fracture at the craniocerebral junction, recorded that the plaintiff reported his neck pain "has almost all but settled" and Dr Lee assessed him as having full, painless, active and passive range of motion at the craniocerebral junction. He informed Dr Moussad that the plaintiff had not been wearing a neck collar since discharge from hospital (a period of 9 weeks): T 10. 42 - 50
4. Dr Moussad prescribed the significant pain relief medication Endone and Panadeine Forte for the first three months and panadeine forte 500 mg three times per day thereafter for the duration of the clinical notes contained in Exhibit H - to end August 2016;
5. No treating medical practitioner or medico-legal reporting expert has not recorded the plaintiffs ongoing symptoms of low back pain with radiation into his right leg and frequently they have reported radiation of symptoms to a lesser extent into his left leg (I note the s 136 limitation but expertly recorded clinical histories relies on examination and not just on what the plaintiff said).
Exhibit J contains the several reports of assessment in regard to rehabilitation by Ms Welsh, Occupational Therapist, Rehabilitation Consultant, to the responsible insurer. The plaintiff's GP Dr Moussad was from time to time involved in that process. In March 2016 the plaintiff was observed to be in good spirits, quite chatty and to walk independently. He was assessed as not requiring an interpreter. He continued to wear an immobilising neck brace. His chiropractic treatment caused discomfort. He commenced on physiotherapy which ceased as it led to discomfort. On the 24th of March 2016 the plaintiff had progressed to independent transfers and could stand, walk, perform sit to stand and stand to sit transfers and was able to ascend and descend the 15 internal stairs of his home with use of the handrail. He wore his neck brace only during the evening when sleeping. He had resumed weekly attendances at church with a friend to drive him. He had not consulted a psychologist. He was driving independently but required another person to be in the car in case he became fearful or tired. He had not returned to study and experienced daily headaches. He was assessed as exhibiting fear avoidant behaviour during treatment. On 31 May 2016 the plaintiff could walk for 10 minutes outside of the home and no longer used the rigid neck brace except occasionally when sleeping. On 28 June 2016, physiotherapy caused severe low back pain down to his buttock and to his legs. Ms Welsh recorded; "on 05/08/201 (at [6]) Mr Mansour confirmed his lower back symptoms had reduced although they had not completely resolved, he advised he was no longer having radiating symptoms down into his buttock and both legs, he was able to leave his home for short periods of time throughout the day to attend the local area with his mother". On 22 August 2016 the plaintiff's standing and walking tolerance had increased to 15 minutes, he no longer wore the cervical collar, and he reported his low back pain was so bad that he could not tolerate sitting for longer than a couple of minutes and needed to take strong pain-relieving medication which reduced his ability to concentrate. He had not resumed studies. The plaintiff elected to cease the rehabilitation program provided by the responsible insurer through Ms Welsh in November 2016. He had by then resumed driving an automatic vehicle for short distances when needed whilst reporting fear and anxiety with regard to driving.
Whilst the plaintiff had been working performing non-physical, engineering office type duties on a voluntary basis with Thomas Engineers between June 2016 and December 2016 and had commencing working full time with AYZoon Group at the Top Place project in December 2016 (parties submissions chronology of earnings MFI 11 and T 42), his solicitors informed Mr Welsh of his having achieved employment in March 2017. Ms Welsh did not record having been informed by the plaintiff of his having achieved employment. He was not cross examined on the point and I do not assume the plaintiff failed to disclose the employment. It is apparent that her assessment of his capacities did not include consideration of his performance, abilities and tolerances of those employments.
Doing the best I can with the whole of the evidence, I accept that the plaintiff up to February 2017 consulted a psychologist on one occasion and on 4 February 2017 consulted Dr Rastogi, consultant psychiatrist. Whilst the notes of Dr Moussad recorded his counselling the plaintiff for anxiety as well as his having referred the plaintiff to a psychologist, I raised with the parties that there is no direct evidence of the plaintiff's repeatedly consulting a psychologist. There is no report from a psychologist in Dr Moussad's notes.
In his report of 4 February 2017, Dr Rastogi reported significant psychological sequalae resulting from a motor vehicle accident, retrograde amnesia of events, poor attention and recall, poor concentration, flashbacks and nightmares. He diagnosed the plaintiff to suffer PTSD with agoraphobia and anxiety disorder. He recommended treatment. It is common ground that the plaintiff did not receive psychological treatment in accordance with that recommendation. Dr Rastogi's medico-legal report dated 10 March 2017 (Exhibit L), which relied on the single 4 February 2017 consultation, confirmed his earlier diagnosis and opined that the plaintiff's psychological prognosis depended on the course of his chronic pain. The history of injury recorded in that report and the earlier treating report, shows that Dr Rastogi relied on facts that are not made out in the evidence to be accurate. He understood the plaintiff was admitted to Westmead Hospital in the Intensive Care Unit for 5 days, whereas the plaintiff's admission to Westmead Hospital was only for three days. He presented with a GCS of 14 or 15 and was never admitted into the Intensive Care Unit. Whereas Dr Rastogi understood that the plaintiff had become socially reclusive and had lost interest in activities, as Ms Welsh recorded and as was his oral evidence, he had in fact resumed attending his church. Dr Moussad recorded the plaintiff's outings with his mother in first half of 2016. The extent of difficulties with retention of memory and recall, including his losing things and forgetting appointments as well as missing meals, does not meet with the plaintiff's employment in his important role with Thomas Engineers undertaking engineering work and coordinating meetings and so on, or his successful employment at with AYZoon Pty Ltd at Top Place in a Construction Site Supervisory role where he worked 50% on site and 50% in the office. Dr Rastogi reported that his self-care 14 months post-injury had diminished but Ms Welsh's report and the plaintiff's oral evidenced confirmed that he was independent with self-care after about three months following the motor vehicle accident. Dr Rastogi reported that the plaintiff was taking Endone for pain, whereas the plaintiff ceased taking Endone 3 months after the motor vehicle accident in March 2016. The plaintiff's employment history records him having achieved recognition in Australia in October 2016 of his tertiary engineering qualification from Egypt. That required him to complete an assignment and this also does not fit with the assessment of poor concentration and attention assumed by Dr Rastogi. This medico-legal report of Dr Rastogi is the only record in the medical literature that reports him as being of poor personal presentation. Dr Rastogi described him as "unshaven and had limited self-care". It will be remembered that even in late March 2016, Mr Welsh recorded the plaintiff as well presented and chatty. In his medico legal report Dr Rastogi described the plaintiff as suffering Chronic Pain Disorder in addition to the diagnosis of PTSD with Anxiety. Again, he recommended significant ongoing psychological treatment.
In his medical legal report of 10 March 2017 Dr Rastogi commented that the plaintiff was then fit to work in a reduced capacity as a civil engineer which capacity as time went on would be determined by the severity of his pain. He concluded that the plaintiff did not require assistance with domestic duties nor assistance with daily activities.
On 28 October 2018 Dr Rastogi provided an update to the plaintiff's solicitors of his recommendation for ongoing treatment needs but again relied on the single consultation and examination that took place on 4 February 2017.
In his final report, on a medico-legal basis, on 15 July 2021 Dr Rastogi concluded that the plaintiff's chronic pain was perpetuating his psychological injury resulting in functional impairments of poor stress coping and concentration deficits in the long term. He did consult with the plaintiff on 15 July 2021 and his report confirms that the plaintiff had received no psychological treatment since the consultation 4 February 2017. Dr Rastogi assessed that the plaintiff did not require rehabilitation and was fit to work in the reduced capacity of a civil engineer with physical restrictions. He assessed that the plaintiff did not need assistance with domestic duties. In coming to this conclusion Dr Rastogi understood that the plaintiff was working as a supervisor at Cube Build (misspelled on page 2 of the Doctors report) over the preceding 4 months. It will be recalled that work was through his retainer with Morfosis Architects Pty Limited.
Only two weeks later on 1 August 2017, the plaintiff was examined by Dr Roberts, psychiatrist for the purpose of providing a report to the responsible insurer. Whilst Dr Roberts recorded the plaintiffs' complaints of difficulties with anxiety, sleep and working in enclosed spaces as well as that he experienced back pain which radiated to both lower limbs, the right more than the left, Dr Roberts concluded that there was no evidence to support a psychiatric diagnosis and that the plaintiff required no psychological or psychiatric treatment. Consistent with other medical literature, Dr Roberts recorded the plaintiff treated his pain with Panadol and when more severe with Panadeine Forte. He recorded that the plaintiff was in full time employment and that the plaintiff said that his employer allowed him to stop when he needed to. His observation was that it was difficult to envisage a person with a cognitive impairment to function as an engineer while explaining plans to clients.
At this point is it convenient to revisit investigated expert opinion which considered the significant objective medical evidence of the plaintiff's physical injury being the MRI of his lumbar spine on 29 April 2017. Professor Fearnside, neurosurgeon, provided medico legal reports to the plaintiff's solicitors of 7 March and 29 May 2017. Professor Fearnside recorded that the plaintiff's low back pain had been the main cause of continuing disability and that it radiated to his right buttock and within a week or two of discharge of Westmead Hospital, right sciatic pain was referred down the back of his right leg to his ankle with similar symptoms in his left leg of about 50% severity. Consistent with the plaintiff's evidence of his employment at Morfosis Architects at the time, he told Professor Fearnside that he was performing light work and mainly dealt with paperwork in an office, the employer being sympathetic in that, if his pain was severe he could leave early. Inconsistent with the plaintiff's oral evidence, Professor Fearnside understood the plaintiff was not performing manual work (report 7 March 2017 at paragraph 1.11). Professor Fearnside recorded that the plaintiff was unable to drive because of loss of a range of motion when looking to his right and left. Again, this was not the evidence of the plaintiff in the hearing. He recorded that the plaintiff reported being only able to sit for 60 minutes and to walk for 5-10 minutes on level ground. Such limited walking does not easily fit with the plaintiff's oral evidence that he maintained full-time employment at The AYZoon project, Top Place for eighteen months as referred to (see [39]-[40] and [52]-53]) above, including spending 50% moving about the work site without complaint of limited mobility. Professor Fearnside found 50% limitation of flexion of the plaintiff's neck and 50% loss of right and left rotation. In his subsequent report on 29 May 2017, Professor Fearnside commented that the lumbar MRI of 29 April 2017 showed disc material "adjacent to" the right S1 nerve root and "This might well explain his right sciatic type pain". He also diagnosed that from that scan the mild posterolateral disc bulge at L4/5 on the right was "adjacent to" the right L4 nerve root.
Between February and December 2017 the plaintiff was extensively assessed for medico legal purposes. In addition to Dr Rastogi and Professor Fearnside (whose reports I have referred to above) he was assessed by Dr Fagan, ear nose and throat surgeon, Ms Memon, occupational therapist and rehabilitation consultant, Dr Bentivoglio, orthopaedic surgeon, Dr Assem, rehabilitation specialist and Dr Ting who provided a vocational and functional assessment. The plaintiff relies on reports by those medico legal practitioners. The defendant relies on a report from this period by Dr Keller, occupational physician.
In his 24 February 2017 report, Dr Bentivoglio recorded that the plaintiff complained of low back pain of some degree being constant, that his symptoms fluctuated in severity, and that the pain was worse with prolonged static positioning. He recorded that the pain radiated down both lower limbs but more on the right than the left. In relation to the neck he recorded that the pain was present most of the time and tended to radiate toward the left shoulder. The plaintiff reported that he experienced decreased movement in all directions of his neck, but that his neck symptoms were improving. On examination the plaintiff demonstrated 2/3 of normal range of movement of the lumbar spine and about ¾ of normal range of movement of the cervical spine. Dr Bentivoglio in his first report offered the following conclusions which, after his having had the opportunity of reviewing the MRI of 29 April 2017, were confirmed in his latter report:
1. "Mr Mansour has a university degree. Realistically, his work activities will not be particularly heavy in nature and his spinal disc lesion will not interfere too much with his work activities."
2. "His spinal disability should not interfere with his chosen field of employment"
3. "Mr Mansour is undertaking appropriate duties as a civil engineer"
4. "He copes well with his work activities. I would not expect that he needs to have any restrictions for his duties as a civil engineer"
5. "I would expect Mr Mansour possibly does require 1-2 hours of domestic assistance per week to do activities he is no longer capable of doing."
In his latter report, Dr Bentivoglio opined that the objective findings on the MRI obtained on 29 April 2017 indicated that the plaintiff had suffered a permanent weakness at levels L4/5 and L5/S1 of his lumbar spine. At paragraph 2 he expanded on the plaintiff's limitation for work quoted above from his first report, stating "I would therefore not expect Mr Mansour would ever be involved in doing any manual duties. Even with ongoing back complainants, I would expect that he should be capable of working as a civil engineer on a full-time basis. I would therefore not expect he would have any significant past or future economic loss."
At about the same time as the plaintiff was assessed by Dr Bentivoglio, and again on instruction of his lawyers, he was assessed by Dr Assem, rehabilitation specialist. Dr Assem's report dated 10 February 2017, was based on his single interview with the plaintiff that day. His report of 26 May 2017 considered the additional information of the MRI obtained 29 April 2017. His Whole Person Impartment assessment was reported 10 February 2017. Dr Assem's most recent report is dated 24 May 2021 following a consultation with the plaintiff that day. All of Dr Assem's reports are contained in Exhibit Q. There is significant similarity between the reports of Dr Assem and Dr Bentivoglio in relation to their recording of the plaintiffs' complaints and their assessment of his limitations for work. They both record full time employment at Top Place (all be it Dr Assem recorded 6 hours work per day whereas Dr Bentivoglio recorded 5 hours) and that the plaintiff was working suitable duties as a civil engineer with a supportive employer. Whereas Dr Bentivoglio recorded the plaintiff's complaint of constant low back pain, Dr Assem recorded it as "intermittent discomfort". Drs Bentivoglio, Fearnside and Assem on examination found the plaintiff displayed restriction of neck movement: Dr Assem recorded finding, three quarters of normal range of rotation of his cervical spine to the right but only half of normal range to the left and only half lateral flexion to the left. However, he did comment that he observed "some asymmetry of movement". He recorded that the plaintiff's neck symptoms were exacerbated when engaged in any physically demanding activities but unlike Dr Bentivoglio he reported no radicular symptoms in the plaintiff's upper extremities. Of the plaintiff's complains of back pain he wrote: "he's required to regularly change his posture. There are occasional exacerbations when stooping, bending or lifting heavy items. The pain is in the mid lumbar region radiating to the right buttock and posterior aspect of the right leg. When his symptoms are severe, he has difficulty weight bearing on his right leg."
Again, I observe that the plaintiff did not give oral evidence of difficulty weight bearing nor of difficulty walking, climbing stairs, ladders or otherwise moving about construction sites. Dr Assem recorded the plaintiff's complaints of limitation of sitting at 15-30 minutes and to stand and walk for up to 30 minutes. Plainly those complaints are of twice the limitation recorded by Dr Bentivoglio. Dr Assem noted that the plaintiff did not have any difficulty climbing on or off the examination couch. He observed that active straight leg raising in the supine position was at 60 degrees laterally limited by muscle tightness. In his first report, Dr Assem offered the following conclusions which he confirmed in his latter report having received Dr Chan's report of the MRI (he did not see the scan);
1. "He will most likely continue to have neck and lower back pain that reduces his performance, productivity and work activities, as a result there will be an expected reduction in his future earning capacity."
2. "He still has difficulty bending, stooping, carrying heaving items or performing any physically demanding activities.'
3. He "may require occasional assistance with heavier household chores" which for outside work include gardening, yard work and household maintenance.
4. In his latter report, having considered Dr Chan's analysis of the MRI, Dr Assem expanded his description of limitations as follows:
1. "He will need to remain on modified duties as Civil Engineer. He will need to avoid any tasks that involve lifting items weighing more than five kilo grams, repetitive bending or prolonged static back flexion"
2. "Mr Mansour will continue to experience chronic mechanical low back pain with radicular complaints in his lower extremities. With time there would be gradual progressing with the underlying pathology causing increasing symptoms and limitations."
At page 7 of his 24 May 2021 report, Dr Assem recorded his incorrect understanding that the plaintiff was then working 6 hours per week with Cube Build (Morfosis Architects). Inconsistently at page 2 of his report he wrote that the plaintiff was working 5 hours per week. In any event, having recorded the plaintiff's report that he was coping with the work satisfactorily and could sit, stand and change his posture when needed (report page 2), somewhat inconsistently, he opined that at the present time, he would be physically capable of working 4 hours per day, 5 days per week with a supportive employer who is able to accommodate his current restrictions and it is unlikely he would be able to work on a full-time basis in a regular and reliable manner given his ongoing symptoms, limitations and associated psychological issues. Dr Assem estimated his working life has been shorted by 5-10 years due to the injuries sustained (report page 7). The plaintiff's oral evidence and the agreed Parties Submissions Chronology of Earnings (MFI 5) records that he remained in full-time work for Morfosis Architects Pty Limited trading as Cube Build for approximately a year, 15 March 2021 to 13 February 2022, earning a full-time wage and managing physical requirements of his supervisory position. The plaintiff's oral evidence was that at about the time of the report, including his Security Officer work, he was working up to 14 hour days on occasion: See [75] above. Dr Assem's assessment of the limitation for those duties as of 24 May 2021 does not meet the plaintiff's oral evidence of the long term of his employment in that position.
Ms Memon, Occupational Therapist/Rehabilitation Consultant, consulted the plaintiff on the 16th of August 2017. Her report assessing his needs for assistance with activities of daily living and in the home is dated 3 September 2017, exhibit N. Whilst the Table of Comments at page 3 of her report says that Medical Reports Reviewed would be listed on page 4; in fact, all that is there reported is "Review of Reports Supplied" without identification of those reports. The balance of her report is based upon the plaintiffs self-reporting. Whereas at the time of Ms Memon's assessment, the plaintiff was living at home and unmarried and was working for AYZoon at the Top Place project where his services were fifty percent in the office and fifty percent supervising on site with a supportive employer who would give him time off when needed, between then and this hearing the plaintiff mostly worked full time on site in construction industry supervisory roles, performing the manual tasks identified in these reasons so far as I have been able to discern them from his evidence. In addition he performed Security Officer work part time. He conceded on occasion having worked up to fourteen hours per day. These reasons have identified his security work as including him carrying boxes of wine to cars and pushing trains of up to six shopping trolleys up ramps. In addition in his Security Officer work he has been able to stand for hours all be it he will position himself near a seat if he can. The plaintiff has for at least several years, been able to work on building sites with tools, drive between building sites and move about on the building site for the purposes of his supervising work and to help out with trades work. In my opinion, the evidence describes him to have possessed significant physical capacity above that reported by him to Ms Memon. His reports of physical limitation to her, do not fit with my understanding of the assessment of his physical capacities at about the time of her report, found by Professor Fearnside and Dr Bentivoglio. Given the position agreed between the parties that self-reporting and history by the plaintiff to doctors is admitted as evidence of his complaints but not of truth of the fact, I consider Ms Memon's report to be worthy of consideration but not of persuasion over the impressionistic assessment I am able to obtain from the plaintiff's evidence in court and his work history.
In terms of his future claims for domestic assistance, Ms Memon recorded that the plaintiff considered house maintenance tasks, garden maintenance, lawnmowing and pruning, pool maintenance, and car care and washing as not applicable to him, those home tasks having been performed by his family and not by himself and because he was a private car wash user prior to the injury. I note from her part 5 Summary, Conclusion and Recommendations, the plaintiff told her that he took panadeine forte for pain relief every day so that he could cope with work but the overwhelming evidence is that he ceased taking panadeine forte about three months post injury (one and a half years before Ms Memon's assessment). To the extent Ms Memon describes diagnoses, I prefer the medical opinions expressed by specialist reporters within those fields of knowledge.
Exhibit R contains two reports of the occupational, vocational assessor (PHD in behavioural science) Dr Ting dated 7 December 2018 and 21 June 2021. Having observed the plaintiff in court but more importantly having considered his evidence of work duties performed over approximately 6 years preceding the hearing, I am concerned that the occupational therapy assessment recorded by Dr Ting observed greater limitation than the evidence would suggest the plaintiffs' life and work experience justifies. I am also concerned of internal inconsistencies in his reports. Dr Ting observed the plaintiff's lift and carry capacity on examination as follows:
1. In his 21 June 2021 report, Dr Ting observed that the plaintiff can lift 5 kgs with his right hand and perform a few bicep curls, he is able to hold 3 kgs in front at right shoulder height. He can lift 3 kgs with his left hand and perform a few bicep curls. He can hold 2 kgs in front, he can lift 7 kgs bilaterally from the floor to the bench top, guarding his trunk and carrying it for a short distance. He is not able to hold 9 kgs without experiencing an increase in neck and lower back pain.
2. In his first report, 7 December 2017, Dr Ting reported "Mr Mansour is hesitant when approaching manual tasks, with encouragement he was able to lift 1.5 kgs unilaterally and 2.5 kgs bilaterally. He was able to carry 2.5 kgs for a short distance".
At the outset I observe that Dr Ting's 7 December 2017 assessment of lifting capacity is greatly less than that recorded by Ms Memon, occupational therapist and describe such extreme limitation as to be difficult to match with the plaintiff's evidence of work he was able to perform for AYZoon at the Top Place project at that time: see for instance [39] above and [52]-[53].
Among the list of documents briefed to Dr Ting and considered by him for his first report of 7 December 2017 are missing both the report of Ms Memon which preceded it by three months (3 September 2017) and both reports of Dr Bentivoglio which preceded it by 8 and 6 months respectively (24 February and 19 June 2017). In his first report, Dr Ting recorded the plaintiff's report of driving tolerance of 30 minutes before his pain increased resulting in him suffering anxiety attacks and shortness of breath. On examination the plaintiff used a rail during the stair climbing test and completed only one lap of 20 steps, taking 55 seconds to do so. Dr Ting assessed the plaintiff as suitable for the position of Construction Foreman and Assistant Civil Engineer and other positions in which he can avoid the following tasks;
1. Sustained hold of head in one position
2. Repetitive turning, bending or twisting of the neck or trunk
3. Repetitive upper limb work including reaching above the shoulder level, forceful pushing or pulling, or placing heavy objects
4. Lifting from low positions
5. Lifting or carrying to the above - reported levels
6. Climbing ladders or frequent use of stairs
7. Squatting
8. Standing or walking, driving, or working in one sitting position, for prolonged periods of time
9. Jerking, jolting or jarring of the body
10. Multitasking
In his latter report, Dr Ting recorded the plaintiff's description of his ability to cope with his full-time work with Morfosis Architects trading as Cube Build as commencing at 7 am and concluding at 3 pm with duties of checking the supplier materials and labour for the next day and in the afternoon supervising five or six tradesmen onsite. In consequence of this, when asked to chart his pain profile, on a typical workday, in June 2021, the plaintiff indicated "his pain rose to a moderate level by mid-day. His pain improved after he took his lunch break and then rose to a moderate to severe level when he finished work at 3 pm". In his oral evidence the plaintiff did not describe such significant pain in the course of his workday, which work he continued to perform for approximately one year. During cross examination the plaintiff conceded that at about the time of Dr Ting's latter report, with his Security Officer work, he was working up to 14 hours on some days. Dr Ting assessed the plaintiff suffered from psychological cognitive difficulties as well as persisting pain which impacted negatively on his functional work capacity.
The defendant relies on the medico-legal report of Dr Keller, occupational physician dated 11 August 2017 (Exhibit 1), in which the doctor concluded that the plaintiff has suffered no lasting cervical or lumber restrictions and has no treatment needs. Dr Keller described the injuries as soft tissue strains at the lumbar and cervical levels. Dr Keller assessed that no formal work restrictions were required, no pain assistance for domestic or cleaning or gardening duties either. The first observation is that Dr Keller is the only medical expert who's opinion is that the plaintiff does not suffer an ongoing impairment. In his view after three to six months of unfitness, the plaintiff over a graduated return, would have been fit for duties from about 12 months. These findings followed his noting the plaintiffs complains of intermittent back pain daily aggravated by prolonged sitting and intermittent pain in his neck which came on with stress at work about once per week. The plaintiff also informed him of difficulties chewing due to his left sided face injuries.
Dr Keller opined that, the plaintiff exaggerated his symptoms. He recorded that on formal examination the plaintiff demonstrated a range of neck motion flexion and extension to forty five degrees, rotation to the right sixty degrees, rotation to the left forty five degrees, and flexion on both sides of forty five degrees: But that at other times "during the consultation such that when he was looking behind him to talk to me he could rotate his neck to 90 degrees on both sides showing voluntary exaggeration of his capacity." Dr Keller noted the plaintiff walked unassisted and sat comfortably throughout the consultation which was of a duration of thirty-four minutes. Nevertheless, Dr Keller did not arrive at an assessment that the plaintiff suffers no symptoms. In his view the plaintiff could "manage his symptoms with simple personal exercises".
In his second report dated 29 December 2021 (Exhibit 2) and having considered the MRI scan of 24 April 2017 (I have noted Dr Keller's assessment of the scan at [34] above), Dr Keller recorded that the plaintiff complained of intermittent low back pain which occurred three days per week and may last several hours and was sometimes of severe intensity and "He reports no other disabilities". Dr Keller observed on examination that the plaintiff could squat deeply and rise without assistance but displayed a mild restriction of lumbar flexion without signs of asymmetry or radiculopathy. He concluded: "Mr Mansour reports ongoing intermittent low back pain restricting him from moderate to heavy tasks. It is not clear why this has not recovered in the six years since his accident or why it continues to restrict his capacity for a normal life…he appears to be capable of working full time in a similar role to his pre-injury tasks."
I observe that Dr Keller, particularly in his most recent report, does not dismiss that the plaintiff suffers symptoms but expresses his specialist medical opinion that he did not identify a medical cause for the continuation of those symptoms.
The parties tendered Motor Accident Medical Assessment Service certificates and accompanying reports of Medical Assessors as follows:
1. Exhibit S, Dr Curtin, 11 May 2018: Dr Curtin recorded the plaintiff's complaints of persistent chronic pain in his neck and low back for which he took Panadol two to four a day, intermittent right side facial pain, clicking of the right side of the jaw, having to cut food into small pieces and a large scalp scar. Spinal injuries are outside Dr Curtin's specialist field or knowledge. He assessed a two percent whole person impairment on account of the facial injury and scaring.
2. Exhibit S, Dr Faithful, 15 May 2018: Dr Faithful recorded the plaintiff's complaint of low back pain aggravated by work. Dr Faithful found some tenderness of the right paraspinal muscles of the cervical spine and observed restriction of fifty percent of forward flexion and extension, whilst rotation to the right and left was equal. From observation of examination of the lumbar spine he found (consistent with that reported in the bulk of the medical literature tendered by the parties) forward flexion to the knee, extension half of that expected and flexion to the right greater than flexion to the left. Dr Faithful recorded complaints of pain in the right paraspinal muscles of the lumbar spine and down the right leg as far as the ankle. His conclusion was that the plaintiff had suffered soft tissue injuries to the cervical spine and to the lumbar spine equating to a whole person impairment of 5 percent.
3. The combined certificate of Dr Wood dated 13 July 2018 (Exhibit S) assessed whole person impairment of not greater than 10%.
4. Exhibit 3 Dr Jager, 1 October 2018, assessed psychological impairment. Dr Jager recorded having been informed by the plaintiff that he was treated by a psychologist and took anti-depressant medication and sedatives for 12 months. Other evidence does establish that the plaintiff received counselling from Dr Moussad, attended a single psychologist consultation with Dr Rastogi, psychiatrist and was prescribed Lyrica for a substantial period by Dr Moussad. Dr Jager's summary sentence may be consistent with that evidence. It is not necessarily to be understood as his having attended repeated psychological treatment for a period of 12 months. The agreed position between the parties is that only one psychologist consultation was included in the section 83 expenses for past medical treatment. Dr Jager opined that the plaintiff suffered depression and sometimes anxiety with insomnia including nightmares and flashbacks, satisfying him of the diagnosis of PTSD caused by the motor vehicle accident. In his opinion the plaintiff had made a substantial recovery from his psychiatric injury to the extent that "his psychiatric condition does not cause him to be limited in his ability to undertake the essential activities of daily activities of daily living. His psychiatric condition does not give rise to a need for domestic assistance of the type described". Dr Jager opined that, not having received treatment recommended by Dr Rastogi, and having recuperated as he had done; his condition was toward the "mild end of the spectrum, having achieved full time employment, tertiary studies and married"; therefore "does not require the treatment described".
5. Exhibit 4, Dr Cameron, 27 November 2018, assessed the plaintiff's need for domestic assistance. He observed residual low back pain symptoms but not of severity such as for the plaintiff to require domestic assistance or treatment except for a single pain management course. It is common ground that for future treatment the plaintiff is entitled to a single pain management course at a cost of $7,500. Indeed, Dr Cameron included in his diagnosis and prognosis, that whilst the plaintiff had made a reasonable recovery, "…he has residual symptoms particularly related to his low back [but] his impairment are (sic) not of sufficient intensity to justify ongoing domestic assistance."
6. Exhibit 5, Ms Davidson, occupational therapist, 7 March 2019, assessed whether domestic assistance and treatment was reasonable or necessary. She observed that "Throughout the assessment he would rise from the chair and table for a practical task but he showed no signs of discomfort from sitting despite the two hour assessment." She said that the plaintiff was "quite reluctant to participate" in activities during the assessment, complaining "I cannot do that" but with encouragement he would complete the task. She assessed the power grip which he displayed as "less than that of a six year old child in his left hand and less than that of a nine year in his right hand. It is also less than that of a seventy seven year old male". In her opinion it was unlikely that the plaintiff exerted maximum effort during the grip strength assessment tasks. When Ms Davidson observed the plaintiff getting out of bed, she noted that his trunk flexion was greater than that at other points in the assessment. She recorded that the plaintiff told her that prior to injury he mowed the family lawn fortnightly. However as observed early in these reasons, the plaintiff told Ms Memon that, lawnmowing was not a task that he performed and that assessment of it was not applicable to him. His oral evidence was that he would occasionally help out by mowing the small lawn of the family home. I note that at page 9 of the report supporting the certificate, Ms Davidson recorded that the plaintiff "stated that the physical demand to complete the washing of his plate and cutlery was greater than the physical demand at his workplace" at Top Place during 2017. Ultimately, (see page 11 of report) Ms Davidson concluded that there were "multiple inconsistencies" with the plaintiff's presentation during assessment. Ms Davidson reported:
1. "A major inconsistency was his ability to bend to move items from a low cupboard or pick up an item from the floor. On the first request he was unable to produce any flexion of the lower back, hips or knees, and hence his hands maximum finger reach was to the hips. I advised him that Dr Faithful had written that he was able to achieve forward flexion to the patella. I requested that he have another attempt and he achieve forward flexion to the knees. I suggested to him that he should use hip and knee flexion and he stated that these movements aggravated his leg pain. Soon after I asked him to pick a small saucepan out of a cupboard immediately under the bench and located at knee level and he refused and stated he could not do this. Later during the assessment, he stated that he could not pick up the shampoo from the floor. He stated the family would put it alongside on the basin for him. I requested he attempt to pick it up and he was able to pick up a push control shampoo container from the floor. He supported himself on the shower wall while bending. He stated that inconsistencies were due to pain.
2. Rehana Memon stated that Mr Mansour had squatting to 50% of what would be expected but Mr Mansour stated that he could not squat to me and refused to squat. He utilised some squatting posture to lift the pump action shampoo off the floor but that was only after several attempts at encouraging him to squat and bend." [The report of Memon is exhibit N and preceded Ms Davidsons assessment by 18 months].
3. Ms Davidson observed "unusual" "inconsistencies" between the plaintiff's performance of hand grip using a dynamometer as reported by another agency, 15 months before, and results during her assessment. Ms Davidson noted that whereas Ms Memon's report recorded the plaintiff having stated he did not mow lawns or perform vacuum cleaning prior to the motor vehicle accident, he informed Ms Davidson he did perform both those activities.
4. Ms Davidson's determination of reasonable and necessary domestic assistance was 3.7 hours per week from 6 December 2015 to 6 July 2016, 0.25 hours per week from 7 July 2016 to 1 November 2016 and zero hours per week thereafter. She also concluded that whilst the plaintiff had not been able to complete prolonged standing and heavy lifting, he was able to perform grocery shopping of light items on a regular basis.
[4]
OPINION OF KAIN ELSMORE CA - 10 FEBUARY 2020 - EXHIBIT T
This report is generally referred to in the transcript as the Vincent's report, that being the firm of which Mr Elsmore was a member at the date of his report. Mr Elsmore is a forensic accountant. The defendant objected to admission of the report, principally on the basis that the factual assumptions relied upon by Mr Elsmore are not established in the evidence. The second basis of objection was that the report is not based on specialist knowledge within the meaning of section 79 of the Evidence Act but rather merely applies actuarially based statistics of earnings in the construction industry. True it is that expert opinion does not merely, from research, repeat the opinion of others: AJ v R [2022] NSWCCA 136 particularly at [73] - [75] and [83] - [85]. However, I admitted the report over the specialist knowledge objection because it contained Mr Elsmore's specialist opinion that the information of earnings upon which his reasons and calculations are based is as selected by him from his specialist experience, training and knowledge as a chartered accountant to be respected reporting and because of his specialist knowledge of income tax returns as applied by him in his report.
It is the first basis of objection which I found most persuasive; however I preferred the view that Mr Elsmore's opinion remained relevant and was admissible. To the extent that the factual assumptions upon which he relied are not made out in the evidence, so his opinion must be of less persuasive weight. As to those assumptions I make the following observations:
1. During final submissions the parties reached substantial agreement in relation to past earnings, which agreement was available through their consideration of the plaintiff's submission document entitled Chronology of Earnings (MFI 11); and their agreement shows that the plaintiff's tax returns were not a accurate source of his past income. Mr Elsmore employed reference to those tax returns (see part 5.0 of his report).
2. Mr Elsmore was not informed of the plaintiff's earnings from work for Claude Neon or as a Security Guard commencing in January 2020; Mr Elsmore was not apprised of the plaintiff's true earnings.
3. The parties agreed that the plaintiff's earnings from employment with Hutchinson's Builders in about April 2018 and then BMI Maintenance Pty Ltd trading as Aland from August 2018 in the amount of $1,300 net per week "effectively mirror" the plaintiff's present earnings (T 214. 30 - 41), and his ability to generate income between April 2018 and the present, which is not "reflected" in his declared taxable income (T 230. 31 - 39) which greater earnings is not in accordance with the assumptions upon which Mr Elsmore's report is based.
4. Contrary to the evidence, Mr Elsmore assumed that the plaintiff intended to undertake full time employment as a Civil Engineer from 1 January 2017 (paragraph 4.5).
5. Contrary to the evidence that the plaintiff did complete his Open Training Education Network syllabus toward ultimately achieving qualifications from which he might later, with experience, obtain a builders licence, Mr Elsmore assumed that the plaintiff did not complete his education toward becoming a builder (clause 4.6 (II)).
6. Contrary to the evidence of a history of full time employment, particularly in various supervisor roles; Mr Elsmore assumed that the plaintiff worked only part time as a site foreman/engineer at Top Place (clause 4.6(III) and 6.1(II)(c)).
7. Contrary to Mr Elsmore's understanding that the plaintiff undertook "a casual role" as site foreman with Hutchinson Builders, that employment was a full time position and, as above, the parties agreed the plaintiff's net earnings were at his capacity for work of $1,300 per week (paragraph 4.6(V)).
8. Contrary to the evidence of the plaintiff's operation of his own company and work with that company (BM C2 Services Pty Ltd) from before March 2019, with a partner and his work as a Security Officer; Mr Elsmore assumed the plaintiff did not undertake employment in any capacity from 17 September 2018 (clause 4.6 (VIII) and 6.1 (II)(g)).
9. Contrary to the evidence, Mr Elsmore prepared his assessment of economic loss based on the assumption that from 1 January 2017 until retirement at age 67 years, the plaintiff would undertake full time employment as a Project Manager, Site Supervisor or Civil Engineer. The plaintiff's evidence was that he would require at least 7 years' experience on site before likely being eligible for any of those high management level on-site roles, but in any event his dream is to become a self-employed builder. The evidence is that the plaintiff interrupted his acquiring experience during the period of his BM C2 venture, commencing with planning with his partner between September 2018 and continuing until March 2019.
Of the three future scenarios, the subject of Mr Elsmore's calculations (paragraph 6.1(III)): "Residual A" being ongoing employment as a Site Foreman would, on the evidence, be a continuation of earnings as the plaintiff has achieved in the past to date which past history is, in my opinion, first evidence of his capacity to continue full-time in that work; "Residual B", that the plaintiffs future employment be as a Project Manager, Site Supervisor or Civil Engineer would be to 30% of his notional capacity, does not meet with the evidence that the plaintiff has been able to continue to gain experience as a supervisor working toward 7 years of experience required for him to be suitable for those employments and the evidence is the physical demands of those positions would be less than the employment which he has been able to perform to date; and "Residual C" that the plaintiff would source employment as a Project Manager, Site Supervisor or Civil Engineer and progress to 50% of his notional capacity, as for "Residual B" does not meet with the evidence.
In my opinion the utility of Mr Elsmore's report, for consideration in the assessments required in this case of past and future economic loss, is that it provides a useful reference for the available earnings in the employment marketplace within the construction industry. I do not find it persuasive of assistance for calculation of past or of future loss however.
[5]
CONCLUSIONS - PAST AND FUTURE ECONOMIC LOSS
The Amended Statement of Particulars handed up by the plaintiff at the hearing listed as particulars of injuries received; head injury; fracture left occipital condyle; facial injury - fractured right zygoma; chest fractured sternum; cervical spine; lumbar spine - discal damage/fractured left L1 transverse process; post traumatic stress disorder/depression; anxiety.
From opening to conclusion of the hearing the plaintiff put that his claim for past and future economic loss was primarily based upon his lower back injury. As these reasons have explored, over the 6 years to hearing, the plaintiff received one psychiatric consultation and one psychological consultation only and the expert medical evidence disputes whether he suffers ongoing post-traumatic stress disorder/depression and anxiety of a functionally significant degree. The doctors were not cross examined.
It is my opinion that in this case the best evidence of the plaintiff's functional work capacity and therefore any diminution of his earning capacity is his past work performance over the more than 6 years prior to the hearing. At the outset, I am not persuaded on the sparse evidence of it, that psychiatric and psychological conditions have diminished his functional earning capacity to a compensable extent. Whilst there was evidence of some difficulty with driving due to ability to turn his head and anxiety; I am not persuaded on his evidence that his earning capacity was diminished to a compensable extent by those complaints.
I just spoke of compensable extent, mindful of the principle that "…an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss. And if, notwithstanding such impairment both his contract of employment and his right to ordinary wages continue, how can it be said that his impairment has resulted in any loss so far as his earning capacity is concerned?" Graham v Baker per the plurality (1961) 106 CLR 340 at pg 347; [1961] HCA 48. Following specific reference to Mr Elsmore's report (Exhibit T) the plaintiff put his case in closing written submissions for past and future economic loss on a buffer basis. I have found that the mathematical calculations of past and future loss of earnings in Mr Elsmore's report are of little assistance because the assumptions he made are not proved. In closing written submissions (MFI 8) the plaintiff put his case as follows:
1. [102] the plaintiff does not advance a claim with respect to the past and future of that extent or with strict adherence to that methodology.
2. [103] the plaintiff recognises that issues with respect to the calculation of loss are difficult when one considers the uncertainties surrounding the plaintiff's age, career intentions and opportunities when balanced against his capacity and likely future circumstances with reference to s. 126 of the MACA. The plaintiff opened with the proposition and maintains in these submissions than rather than slavish adherence to mathematical calculations set out my Mr Elsmore an approach by way of buffer or cushion would be a more consistent and appropriate analysis in the circumstances.
Ultimately the plaintiff for those reasons did not press mathematical calculation of past economic loss in the plaintiffs closing Schedule of Damages (MFI 9).
The defendant does not concede any entitlement to past or future economic loss.
It is common ground that the motor vehicle accident exposed the plaintiff to severe trauma and force. The defendant narrows its challenge to the plaintiff's case to the severity of injury and more so to the extent of impairment. The defendant says that the plaintiff is not reliable or accurate in his complaints including as recorded by doctors, made to them; and generally, I have accepted that the inconsistencies and vagueness of the plaintiff's evidence concerning his employment duties and when tested in cross-examination as to what work he was performing in the workplace, as well as his shown non-disclosure of earnings as a Security Officer require caution be exercised when assessing the damages which it is his onus to prove on the balance of probabilities.
Common ground is that the motor vehicle accident caused the soft tissue injuries to the plaintiff's vertebral discs at L4/5 and L5/S1 levels. On the whole of the medical evidence, after cautious consideration of the plaintiff's oral evidence, I accept those soft tissue discal injuries in a young adult whose career, even if operating as a professional civil engineer, a proprietor builder or a project manager whose duties are not hands on labouring or trade type; are highly likely to involve him accessing construction sites. Almost by definition, construction sites are incomplete for every day personal access in that some manoeuvring of them is required. I accept that in supervisory foreman and even project manager roles, it is likely to be desirable for the plaintiff to be able to, on occasion, perform a heavy manual task such as assisting something heavy be lifted or moved in order to provide an access or readiness of a location for work.
The plaintiff has suffered that objective discal injury and from it, pain, irregular sciatica and consequent impairment to some degree. On the whole of the evidence he and after 6 years is likely to continue to do so. His chosen career is purposefully directed to avoiding heavy manual tasks. His evidence does not identify specific activities which he found himself unable to perform in his work to date, save for complaining that work could be too heavy, driving of too long a duration and consecutive days of manual work have caused him pain. That evidence is to be balanced against his ultimate concessions during cross-examination that since January 2020 he has been able to perform Security Officer work, including the manual activities of carrying cases of wine and pushing supermarket trolley trains even after having completed a full day's employment in the construction industry as a supervisor. In my opinion the actual diminution of earning capacity for him is of not great measure. I am therefore satisfied that due to his low back injury, in particular - as his case was presented, he has in the past and will in the future suffer a diminution of earning capacity in his chosen career and in the construction industry generally. Whilst employed, this will disadvantage him to some degree in the competition of the open labour market for on-site roles, when the employer might consider him less likely to move or lift a heavy object in order to facilitate the start or continuance of work, for instance, where another applicant for the job suffers no such impairment and limitation for the work. Balanced with this is that the plaintiff's field of opportunity for non-manual, senior employed roles of Site Manager, Project Manager or Team Leader (plaintiff oral evidence: T 157. 5) and as stated in the Amended Statement of Particulars - "site supervisor, project manager or as a civil engineer" is enhanced by his civil engineering qualification. That will make him more attractive to an employer for those roles, one would think. In addition, he has the option for employment of pure, civil engineering positions. He has the option in the future of working as a licenced builder, once he acquires two years' experience with a sponsor builder and could achieve his desire for work operating his own building business.
Returning specifically to past earnings loss, the 6 year history between injury and hearing is one of him maintaining regular full-time employment generally, save for about 1 month when he said that he was very occupied with the event of his marriage (July 2018) and between about late 2018 and March 2020 when he and a partner set-up and then operated their own business (BM C2 Pty Ltd) as well since January 2020, he has worked as a Security Officer.
The defendant concedes past earnings loss for 6 months and up to 12 months following injury on 6 December 2015 at $84.35 per week, being the plaintiff's pay as a part time worker at Discount Warehouse whilst studying to improve his English, achieving the academic requirements for registration of his Egyptian engineering degree locally and obtaining his Certificate IV, being a requirement of achieving his builder's licence. From around the middle of 2016, but not later, the plaintiff worked on a voluntary basis with Thomas Engineers basically performing civil engineering work. Whilst this work was voluntary, the plaintiff took it on in order to gain contacts and find a gateway to access the local construction industry. That he was not paid for the work was not caused by his injury. In October 2016 his civil engineering qualification was certified locally. He then commenced work at AYZoon Pty Ltd, at its Top Place project in December 2016 and remained in full time employment in that position until April 2018. In the on-site work of that position the plaintiff was able to work out those things which he considered were duties requiring caution against further injury to his back and duties of a manual nature which he was able to perform. On the whole of the evidence, including the medical evidence, I find that he was able to manage that work without time off due to injury.
I have found that the plaintiff's evidence does not permit calculation of income lost through restriction of choice of supervisory positions available to him from the time of his commencement with AYZoon Pty Ltd. I did accept that he experienced pain and discomfort in his neck and shoulder, at least in the early years and subsequently continued to experience episodic exacerbations of pain in his low back for which, since about 2017 relief medication included only across the counter Panadol and Nurofen when required. With AYZoon, he earned about $850 per week net. The rates for earnings of persons within the structural industry set out in part 7 of Mr Elsmore's report, whilst, for the reasons observed, not an accurate measure of potential earnings of the plaintiff but for his injury, indicate that the plaintiff did earn within the range of earnings for a person of his experience and qualifications in that realm of employment.
Following AYZoon, the plaintiff was almost immediately employed with Hutchinson's Pty Ltd, then he took time off to marry in July 2018, after which he was employed by BMI Maintenance Pty Ltd trading as Aland. Next he stepped aside from his career path of experience gaining in the construction industry, in order to operate, with a partner his own business called BM C2 Services Pty Ltd. Not only did the plaintiff not disclose prior to the hearing his work and earnings as a Security Officer during the duration of that endeavour but, his evidence is that supply need for services in construction diminished because of the pandemic. Until commencement with Morfosis Architects Pty Ltd trading as Cube Build, he continued through BM C2 Services to work including under a contract with Claude Neon. The security officer work continued (T 124. 13 - 125. 19). The plaintiff has remained in full time employment since commencing with Morfosis Architects Pty Ltd on 15 March 2020 to the present including with Oscar George Pty Ltd.
Put bluntly, it is difficult to identify specific periods or opportunities to earn income in the whole of that six year plus period which were lost to the plaintiff such that a mathematical calculation of lost earnings can be performed (save for about 8 months at $84.35 per week I have already found). Indeed, the parties agree that the plaintiff's earnings from commencement of employment at Hutchinson and Aland "effectively mirror what the plaintiff's around (sic) earning now", $1,300 per week (T 214. 26 - 41). Specifically, the parties agree that $1,300 per week reflects what the plaintiff's ability was to generate income at that time (T 230. 31 - 34). For the period during which the plaintiff was engaged in his own business, BM C2 Services, if there was an income loss caused by his injury - a fact which on the evidence I am not persuaded of - then, his earning capacity has been constant since April 2018, according to that agreement, which is, in any event, consistent with the evidence.
The plaintiff's credit falls further into question because of the inconsistent reports he has given to doctors, as recorded in the medical documentary evidence, of the duration of his hospitalisation and the extent of his recollection and amnesia and the extent of his physical impairments and residual capacities. The expert psychiatric evidence contests the psychiatric and psychological sequela of the trauma. Particularly in circumstances where Dr Rastogi did diagnose PTSD and the plaintiff's treating GP Dr Masoud repeatedly advised that he seek psychological treatment in the early part of his recovery, I consider it a question in regard to which I would have been better positioned to make a value judgement had expert medical, psychological or psychiatric evidence been given on the topic in Court. I am mindful that the trauma and psychological sequela may have affected his capacity of accurate recall. Accordingly, as stated, I prefer to assess the plaintiff's claims for past and future economic loss on the basis upon which this case was put, of primary focus upon his low back injury and impairment.
The plaintiff does not say that he cannot get to his chosen career in the three roles of Site Manager, Project Manager or Team Leader or that he cannot achieve work as a licenced builder (T 158. 26). Given his evidence that seven years would be required for him to achieve experience required for those senior, non-physical, on-site roles; his interruption from the gaining of that experience when attempting to pursue his own enterprise through BM C2 Services Pty Ltd, means that he would not achieve that level of experience before about 2024.
Ultimately the plaintiff submitted at the close of the case, that a buffer for past economic loss of $25,000 was available on the evidence. It being his onus to prove on the balance of probabilities that loss; doing the best that I can with the inaccurate somewhat inconsistent and exaggerated evidence; whilst accepting some limitation including from performing heavy lifting and carrying work which restriction would more probably than not have caused him to not accept work opportunity from time to time or to lose hours of work from time to time, I conclude that an appropriate buffer for the period commencing June 2016 when he started voluntary work with Thomson Engineers, is in the sum of $7,800. I have roughly approximated a figure equal to an evaluative impression of six weeks of his capacity to earn net wages at $1,300.00 per week since 2018. I have not performed a mathematical calculation but more considered a loss of earnings of some weeks at that indicative figure. In my opinion the weight of the evidence supported by the plaintiff's complaints in court and to doctors of ongoing symptoms is appropriately compensated by the value of the reasonable inference of the fact of a measure of time lost in that proportion.
He did not say that he would have continued his work at the pharmacy after he commenced that role. I allow in addition 8 months loss of earnings from date of accident to his start with Thomson Engineers at $84.35 per week in the total of $2,952.25
I allow superannuation of 11% in the sum of $1,183
Damages for past economic loss on this basis total: $11,935.25
[6]
THE PLAINTIFF'S FUTURE ECONOMIC LOSS
The plaintiff's future economic loss is to be assessed in accordance with section 126 MACA. It is plain from my findings to date that, I find the plaintiff's most likely future career path will remain in the construction industry. He may continue to work toward gaining the experience such that he is able to achieve those high level on site management roles in which there is little or no physical activity with which he would experience a not great difficulty coping, he may be able to limit his physical work by choosing employment roles in which he pronominally relies on his civil engineering capacities or he may go into business for himself as a builder. Indeed, for a person of relatively young age, he may move away from the construction industry entirely and not follow any of those paths of employment. This hypothetical path was not examined in the evidence.
I have found that he continues to suffer some level of impairment, particularly in regard to heavy carrying and lifting. The objective evidence of the 29 April 2017 MRI, as it is reported upon by doctors, satisfies me, including having considered Dr Keller's opinion, of his vulnerability to exacerbations of back pain and the reasonableness of avoiding heavy lifting and carrying and generally heavy labouring tasks.
Whereas the plaintiff relies on Dr Assem's opinion that the condition will worsen and come to surgery, Dr Bentivoglio's reports indicate that his level of capacity and incapacity will continue. Again, without the opportunity of hearing the doctors in oral evidence be challenged on the point; I cannot prefer between specialist medical opinions; however, on the whole of the evidence I am satisfied that it is not likely that the plaintiff's lower back condition will worsen. In particular on the whole of the evidence of more than 6 years of work and life, I do not find that his condition has worsened. Worldly experience is that as he ages he will also gain experience in the construction industry or otherwise pursue his career with the benefit of his civil engineering degree, within or outside the construction industry as an intelligent and educated man and chose to avoid manual tasks as from before injury his career choice has been to avoid manual work as much as possible. The evidence is against finding that he will be required in the future to perform heavier manual work than he has in the six years since injury. Indeed, his venture into BM C2 Services is evidence of his non-manual entrepreneurial interest.
The lay observation of the plaintiff's present state over the several hours of his evidence giving in the hearing was stated by me, during final submissions addressing these inconsistencies and areas of vagueness of the plaintiff's medical evidence and factual evidence going to incapacity counsel for the parties expressly agreed with my observation. At T 229. 31 - 44 I stated:
HIS HONOUR: Yes thank you, we'll take the luncheon adjournment but I just want to say this; I did mention to the parties my observations that he moved freely in the precinct of the courtroom, he appeared to the lay observer, observer also, that first observation was lay obviously, to not suffer any discomfort, including looking as the chair faced toward the bar table, and then turning toward myself, and you can see the angles of those from the chair as it's now positioned, to turn to myself was - only to the right of course, to the left would be the wall - but it was a significant turn of the head toward his right shoulder. He was able on one occasion to leave the courtroom and re enter the courtroom. In none of that did I as a lay observer observe him to display any inkling of a sign of discomfort ore restriction and I raised all of that with the parties I think at the time, and Mr Morgan you agree don't you?
MORGAN: Yes I do your Honour
There is nothing to suggest that, unless suffering a particular exacerbation of symptoms, the plaintiff would not present in that manner when applying for opportunities within the open labour market. In other words, it is not immediately apparent to the lay observer, that he is a person of physical impairment.
In my opinion, the most persuasive evidence for assessing the plaintiff's future economic loss is the evidence of his past work history since end 2016, considered with the expert medical evidence. He has remained generally of sufficient fitness to maintain full time employment and indeed to work as a Security Officer in addition to that employment.
The defendant submitted; "it is difficult to foresee a situation where the plaintiff has suffered any loss for which he is required to be compensated for the latter part of his past economic loss claim, and for his claim to future economic loss"; defendant closing written submission (MFI 11 at [40]). I have not accepted that submission.
The plaintiff submitted a buffer in the sum of $200,000 but did so on the basis of economic loss continuing as calculated by Mr Elsmore, which opinion evidence I have not found persuasive (MFI 9).
The parties agree that the plaintiff will work to a retirement age of 67 years that a multiplier is 884 using the 5% tables and that a deduction of 15% for vicissitudes is appropriate. The plaintiff is entitled to an allowance for superannuation lost. I must employ an evaluative discretionary judgement referenced to not wholly determinate criteria and within fairly wide parameters, achieving satisfaction of a fair award, not restricted to the historical facts found on the balance of probabilities but assessed on the basis of value of a chance, having taken into account the possible outcomes even though the likelihood of any particular outcome being achieved would be no more than a real possibility; State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536.
The plaintiff's economic prospects in consequence of the accident, on the whole of the evidence, are just as likely to improve in the future as he gains experience and further explores the opportunities available to him through, experience, training and education as they would be to diminish. In my opinion, the appropriate compensation for future economic loss pursuant to section 126 including provision for loss of superannuation, is $20,000.
[7]
CONCLUSIONS FUTURE - PAID CARE AND OUT OF POCKET EXPENSES
The plaintiff makes a claim for future paid care in the amount of $161.45 per week for the plaintiff's life expectancy; in the alternative, a buffer of $25,000, to reflect the periodic needs of the plaintiff in the future.
The plaintiff relied on the MAS Certificates issued by Dr Paul Curtin, Dr Donald Faithful and Dr Alan Jager.
These certificates fall within the scope of s 61 and 62 of the Motor Accidents Compensation Act 1999 (NSW). Section 61(2) stipulates that these certificates are binding on the court unless a denial of procedural fairness can be shown. The parties have not submitted to the court that any of the reports should be rejected.
In Trazivuk v Motor Accidents Authority (NSW) [2009] NSWSC 1074 Patten AJ stated at [29]:
"[29] The scheme of the Act generally is to give considerable force to a medical assessment certificate. s 61(2) makes it conclusive as to the matters certified and although s 61(4) enables a court in court proceedings to set aside a certificate, it may do so only in the limited circumstances that there has been a denial of procedural fairness and that the admission of the certificate would cause substantial injustice"
Matters that are not addressed in the certificates are for determination by the court: Owen v Motor Accidents Authority (NSW) [2012] 61 MVR 245 (at 34-35).
Those certificates of Dr Curtin and Dr Faithful assessed the permanent impairment that was sustained as a result of the motor accident. The combined certificate, certified by Dr Wood, assessed the permanent impairment at 7%. These reports did not consider a need for future domestic care. There is no claim as to non-economic loss.
Dr Jager issued a MAS Certificate. Dr Jager determined that the psychological injuries did not give rise to the need for domestic assistance and that it was not reasonable and necessary in the circumstances. Dr Jager's report (Exhibit 3) only lists activities within the house such as cooking, washing dishes and mopping.
Dr Assem who's report's where dated 10 February 2017, 24 May 2017 and 24 May 2021 (Exhibit Q) indicated that should the plaintiff continue to be symptomatic and attempt to live independently, two hours assistance each week would be required on an ongoing basis.
The defendant tendered MAS Certificates by Assessor Dr Cameron (Exhibit 4) and Assessor Davidson (Exhibit 4) from late 2018. Dr Cameron did not find the physical injuries that resulted from the motor accident gave rise to a need for domestic assistance for tasks including cooking, washing dishes, mopping, general cleaning, bed making and grocery shopping.
Assessor Davidson (Exhibit 5) came to the conclusion that domestic assistance arising from the injury was required in the amount of 3.74 hours per week from 6 December 2015 and 6 July 2016 and 0.25 hours per week of domestic assistance from 7 July 2016 to 1 November 2016. Ms Davidson found it not reasonable and necessary for domestic assistance to be provided after that point in time.
As I have already observed, Assessor Davidson indicated in her report that there were significant inconsistencies in the plaintiff's history, complaints and performances on assessment in the medical reports. Significant inconsistencies came in the form of what was recorded as the plaintiff's description of the gardening, lawnmowing and outside maintenance which, Ms Memon recorded were not tasks he had performed pre-injury. That he had said each of them was "not applicable" to him. The plaintiff said he always used a paid car wash and does not maintain a swimming pool. There were three occupational therapists, to which he said he was not responsible for lawn mowing; however he told Dr Davidson that he was.
The plaintiff has submitted to the court that future paid domestic care should be provided for those tasks completed outside the house, having not been the subject of the certificates, and therefore within the discretion of the court: T 262. 23 - 40. The defendant conceded that the certificates do not deal with outside work: T 238. 15 - 23.
The plaintiff also relies on a number of medical/medico-legal reports, as earlier reviewed in this judgement, to support their claim for future paid domestic assistance. These reports were considered by the assessors. I consider the reports in light of the claim for future paid domestic care for duties and tasks outside the house, such as, but not limited to mowing, gardening and yard care.
The report of Ms Welsh, occupational therapist, dated 22 March 2016 (Exhibit J) detailed the activities and tasks that the plaintiff would complete throughout the recovery period. Ms Welsh conducted an assessment on 4 March 2016 and participated in a case conference with the plaintiff and his treating GP, Dr Moussad on 24 March 2016. In coming to her conclusions, Ms Welsh conduced an assessment of the home environment in which the plaintiff resided at the time of assessment. The plaintiff resided with his parents', in a two-story home in Woodcroft. The residence had a "small grassy level area at the back of the home" and "no extensive gardens or garden beds", she described the garden as "low maintenance" (page 10 of Ms Welsh report, 22 March 2016). During her assessment Ms Welsh queried the plaintiff on who was responsible for yard maintenance at the residence. She recorded: "Mr Mansour reported that he was not responsible for yard maintenance pre-MVA" (page 15 of Ms Welsh report, 22 March 2016). Ms Welsh indicated that there were nil gratuitous or paid services currently in place for domestic tasks. Ms Welsh did not have to consider outdoor domestic duties and whether future domestic paid care would be reasonable and necessary.
The report of Ms Memon Occupational Therapist, dated 3 September 2017 (Exhibit N), indicates that the plaintiff does participate in the outdoor maintenance of the property at which he resides (page 18 of Ms Memon report, 3 September 2017). At the time of the report the plaintiff resided at his parents' house. Ms Memon at page 22 indicated that up to the date of her report, no house maintenance or garden/lawn maintenance assistance was required. In her assessment Ms Memon, having conducted a functional rating index, designed to measure neck, and/or back specific problems, indicated the plaintiff suffers "severe disability". In her conclusions as to future personal and domestic duties, it was observed that "Mr Mansour is young and will soon move out of his family home and have responsibilities to share with his partner in the future. Mr Mansour will be unable to perform heavy household duties that will involve lifting and performing awkward movements of his spine. He will also have difficulties with tasks that require of him to maintain his postures in one position for a long time." Concluding that Mr Mansour will need some assistance in the future for his share of the heavier domestic duties of the household. Ms Memon, in her schedule of future domestic duties assistance needs, allowed for 2 hours per fortnight of garden/lawn maintenance. On her assessment this equated to approximately $60 per week. Her assessment of the future personal and domestic assistance needs was done on the proviso that the plaintiff is reviewed by his treating doctor regularly and her recommendations are based on Mr Mansour's presentation as at 3 September 2016.
A vocational and functional assessment report was produced by Dr Ting on 7 December 2017 (Exhibit R). Dr Ting recorded that the plaintiff told him that he was mostly independent in relation to personal care activities with the exception of difficulty when tying shoelaces. Dr Ting found that the plaintiff had ceased doing any housework, he did not specify what that 'housework' included. Dr Ting does not report on the need or otherwise for future paid domestic care.
The defence tendered medico legal reports of two practitioners. Dr Andrew Keller, occupational physician (Exhibit 1).
Dr Keller stated that "Mr Mansour is independent in self-care but states that he is unable to do any home duties. Based on today's physical findings….it is my opinion that he requires no paid assistance with regard to cleaning or gardening." In Dr Keller's second report of 29 December 2021, Dr Keller detailed the change in circumstances of the plaintiff including the employment progressions he had made. He indicated that at the time of the second report Mr Mansour was working as a Site Supervisor for Cube Build, 8 hours a day, 5 days a week. He recorded that role was half sitting and half standing. Dr Keller noted that Mr Mansour continued to experience "intermittent lower back pain" which occurred approximately 3 days per week and could last several hours. Dr Keller did not make a reassessment of the need or not for future paid domestic care.
While in the majority of these medical assessments, the plaintiff did not tell the practitioners he participated in outside household duties or told them that in fact he did not, this is contrary to his oral evidence. In the oral evidence, which is explored below, the plaintiff indicated that while he did not participate in the cleaning duties or 'indoor' duties, he did share the responsibility of the yard and gardening work. This included mowing a small section of lawn.
An award of this nature is to accord with the claimants most likely future circumstance but for the injury; On the face of the plaintiff's evidence, there is a likelihood that outdoor future domestic paid care is required. However a prescribed weekly amount is not calculable because of the above described inaccuracy of his self-reporting and unreliability of his evidence.
The plaintiff indicated in cross examination his dream to own his own home: T 76. 10-15.
Q. What's your hope as far as your domestic arrangements, your living arrangements with your wife as far as what sort of a house or a unit you're going to live in? Do you have any hopes in that regard?
A. Yes, sure. I - my future is, my dreaming is buy a house, not big house like normal house, with multi bedrooms, get children, we get my children, all this stuff.
Owning his house is a real future possibility given his income level which is progressing upward. The plaintiff's wife has work as a drafts person. If his future home is a house with a garden, its upkeep will come with many outdoor domestic duties such as mowing the lawn and maintaining a garden or back yard and external house maintenance. In examination in chief the plaintiff told the court that following the accident he was not able to perform these outdoor duties such as mowing or gardening. The plaintiff told the court of his restriction from performance of outdoor duties in two time periods: He details his ailment in mid-late 2016 and mid-2018 respectively: T 35. 26 - 43, T 74. 40 - 48.
Q. So you could do everything that you needed to do?
A. Some, for myself, like shower myself, clothe myself, all this stuff by myself, yes. But maintenance like before, grass, gardening like before, help my mum like before, no.
Q. So you had some restrictions?
A. Yes, sir.
Q. Physically, for example, did you have any restrictions on your ability to do the activities you described to his Honour, for example, going to the gym, going to the church, playing your guitar?
A. (No verbal reply)
Q. You need to say something; you can't shake your head.
A. No, when--
Q. Did you do any of those things?
A. No, sir
……
Q. Was there anything you were not doing that you had been doing before you were injured?
A. Like mowing.
Q. What else was there that you were not doing?
A. Maintenance, maintenance for my car, all this stuff.
Q. Mowing, maintenance of your car, anything else?
A. No, that's all.
In cross-examination the plaintiff was challenged on his ability to do such tasks on the basis that during the plaintiffs work at Dan Murphy's, he had to push up to six trolleys up an inclined ramp: T 102. 37 - 103. 6.
Q. But in any event, as has been revealed by some questions I asked you yesterday, you are able to, for example, collect shopping trolleys for Dan Murphy's, correct?
A. Yes, sir.
Q. You would lock them together, correct?
A. Yes, sir.
Q. Maybe up to four or five or six trolleys at a time, correct?
A. Six my maximum, yes.
Q. And then you would push those trolleys up an inclined ramp and manoeuvre them into the shop and tidy them away, correct?
A. Yes, sir.
Q. I'd like to suggest to you if you're capable of doing that at Dan Murphy's, there's just no reason to suggest that you wouldn't be able to push a lawnmower to cut a modest size garden's yard, correct?
A. Yes, sir but when I doing for this as security, just to get a good review from the manager on the store to my supervisor to keep my job safe.
During cross-examination the plaintiff gave evidence that the lawnmowing would not take more than 15 minutes to complete. He gave further evidence on the suggestion of defence counsel that in total, the time taken to mow the lawns would not have exceeded 1-2 hours per year: T 102. 9 - 22.
Q. But it would have taken, to do the actual mowing, about 15 minutes, would you agree with that?
A. More or less, depends how big is the grass.
Q. So between the three of you, if you say, did it once every - in winter, maybe once every two weeks, correct?
A. Maybe, because they will start now, however, my dad start to be tired and sick, he get another one to doing for him the mower. If he didn't come, me and my brother, we was doing this, if he's..(not transcribable)..
Q. What I'm suggesting to you, over the period of a year, if you added up all the time you spent mowing the grass, it might add up to a few hours in the whole year, correct?
A. Yeah.
It is reasonable to think even now when the plaintiff and his wife own home unit (which they rent) where the strata management maintain the common grounds of the property and where the plaintiff is not required to perform outside domestic work; that his hope to have children with his wife and to purchase a home in the future is a real possibility. His work to date shows increasing earnings as his experience in the industry increases. His degree in civil engineering displays intelligence which facilitates his opportunity to advance his earnings over time; and yet, on the balance of the evidence I am persuaded that he avoids manual work if he can. Whilst he may have helped out from time to time mowing the small lawn at his parents home, his history is not that of a person who engages himself in outside house maintenance, gardening and lawn maintenance with any enthusiasm. Finally, the exigencies of his future life plan must be acknowledged to include the reality that on occasion, such as where something about the outside of their home represents a risk to children or for some other reason requires early repair or maintenance which but for his low back injury he would undertake all be it reluctantly, he will retain a tradesperson or labourer rather than do the work himself if he had the time and opportunity. The real possibility entitles him to compensation for future domestic care outside of that assessed by the MAS certifiers.
Assessing hypothetical future events is particularly difficult in this case of inconsistent and inaccurate evidence of fact, as I have found. However, that the possibility the plaintiff will from time to time require paid assistance with heavy outside domestic tasks over his long future life is not purely speculative. Nor is it practically certain. I must take the chance of it into account as best I can, on the evidence, as it falls between those extremes: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.
In closing submissions, both parties have relied on the opinion of the medico-legal reporter Dr Bentivoglio. In his first report dated 24 February 2017, Dr Bentivoglio concluded: "I would expect Mr Mansour possibly does require one to two hours of domestic assistance per week to do activities he is no longer capable of doing as long as his investigations show discal abnormalities". Subsequently, having reviewed the 29 April 2017 MRI scan, in his report dated 19 June 2017, Dr Bentivoglio assessed "one - and - a - half to two hours of domestic assistance per week to do activities he is no longer capable of doing" to be reasonable in his opinion as an orthopaedic surgeon. Whilst Dr Bentivoglio specialised knowledge is in the field of assessment of the injury and its bodily sequelae, in this case I have observed significant inconsistency of reporting by the plaintiff to the occupational therapists including Ms Memon and Davidson, such as to render their assessments of less assistance in assessing the plaintiff's degree of impairment and needs as they might otherwise have been. The evidence does show that the plaintiff has maintained for about six years generally full-time employment in the construction industry. I have observed that construction sites are not level playing fields or smooth terraces and the plaintiff has not given evidence of an inability to move about them. It would be inconsistent with his proven ability to perform the physical tasks required of him in those supervisory roles including the hands on tasks he has done, to assess his need for outside domestic work as for more than the occasion of heavy tasks. The evidence shows that he would choose not to engage in any substantial task of manual work and particularly heavy manual work over a longer period; but would, even if he had not been injured, have engaged a labourer or tradesperson to perform that work.
In closing written submissions (MFI 8) the plaintiff put that assistance outside the home is likely to be needed up to 6.5 hours per week at a rate of $161.45 per week x $984.9, making a total of $159,012. The plaintiff's submission in the alternative is for a buffer sought to reflect the periodic need in the future to engage gardeners, building trades for renovation and building work the plaintiff would have been able to complete but for his injury, in the sum of $25,000.
The defendant does not concede any entitlement on account of future paid care. For the reasons given I assess the appropriate buffer sum, to represent only those occasions when heavy outside work is required, and the plaintiff would but for his injury perform it. I also take into account that the ownership of a home requiring such external work is itself only a hypothetical future event. In all of those circumstances I allow a buffer in the sum of $9,000.
As to the claim for future medical expenses; in his certificate of MAS Assessment dated 27 November 2018 Dr Cameron (Exhibit 4) reviewed the same specific therapies and medical treatments as identified in the plaintiffs closing submission Schedule of Damages (MFI 9) or at least therapies and treatments into which each of those specific claims for future out of pocket expenses fall.
When the plaintiff was interviewed by Dr Cameron, three years post injury his then currently treatment was Panadol and Somac as required. Dr Cameron accepted that the plaintiff then suffered residual symptoms related to his lumbar sacral spine but prognosised that "In general terms these should not require specific treatment". Having observed that the then current treatment related to pain management generally and not to specific treatments or adaptive equipment. Dr Cameron found that a one off six-week pain management program in the future would be reasonable. The defendant concedes this treatment. This is the item which the parties agree in the sum of $7,500. Otherwise, Dr Cameron concluded that it is not reasonable or necessary for additional formal physiotherapy, gym memberships, further imaging or surgery.
In the report of 1 October 2018, Dr Jager (Exhibit 3) considered whether proposed future treatment of 26 psychologist consultations per year for life, as recommended by Dr Rastogi, was causally related to the injury sustained in the motor vehicle incident. Dr Jager indicated there was no pre-accident psychological history (report page 49 - 50). Dr Jager recorded that following the motor vehicle accident the plaintiff saw a psychologist for a year until January 2018 but stopped because "it made him feel bad". In fact he only saw a psychologist once but he did receive counselling and Lyrica prescription from Dr Moussad G.P. At the time of Dr Jager's assessment, the plaintiff was experiencing depressed feelings, intermittent anxiety and nightmares two to three times per week. Dr Jager noted that the plaintiff was functioning independently, had good relationships and was engaging in education (TAFE course) with good marks. Dr Jager concluded his report by determining that the plaintiff does have a psychiatric condition that is causally related to the injury sustained in the motor vehicle accident; however, he found the treatment proposed was reasonable and necessary as his condition was not at the mild end of the spectrum.
In closing written submissions (MFI 8) the plaintiff puts that a claim for psychological treatment less than 26 consults per year falls outside of the MAS certificates. In the plaintiff's schedule of damages (MFI 9) the plaintiff claims for monthly psychologist consultations and quarterly psychiatrist consultations for a period of 6 years. However, the history evidenced in this hearing is that the plaintiff has not undertaken psychological counselling of treatment or psychiatric treatment except for one psychologist consultation and one attendance on Dr Rastogi, even over the post injury period when his GP was recommending those therapies and treatments. The plaintiff ceased taking antidepressant medication 12 months following the motor vehicle incident. The plaintiff has remained in employment generally over that period. Little weight can be placed upon the proposition that if he were awarded the damages, he would pursue those therapies and treatments now.
The plaintiff puts that future treatment expenses will be required for review by an orthopaedic and neurosurgeon on a need's basis (MFI 8 at paragraph 140). Dr Cameron dismissed the claim for future surgical decompression and neurolysis surgery of S1 level as recommended by Dr Assem. The report of Dr Fearnside, Neurosurgeon, dated 7 March 2017 (Exhibit O at paragraph 7.2) opines that "Mr Mansour does not require any further treatment" from a neurosurgical perspective. A subsequent report by Dr Fearnside of 29 May 2017 (Exhibit O), in light of the MRI scan of 29 April 2017, detailed no change in opinion. The report of Dr Bentivoglio, Orthopaedic Surgeon, dated 24 February 2017 (Exhibit P) opined that Mr Mansour does not require "any further intervention". This conclusion remained unchanged in light of the 29 April 2017 MRI scan.
Mindful of the application of s 61 MACA, in my opinion the plaintiff is entitled only to the sum of $7,500 for a pain management program for future out of pocket expenses.
[8]
CONCLUSION - PAST OUT OF POCKET EXPENSES
The parties agree past out-of-pocket expenses in the sum of $13,707.13 which sum has been paid by the responsible insurer pursuant to section 83 MACA.
[9]
SUMMARY OF CONCLUSIONS
1. Total Past economic loss - $10,752.25
2. Past economic loss of superannuation - $1,183.00
3. Future economic loss inclusive of superannuation - $20,000.00
4. Future out-of-pocket expenses - $7,500.00
5. Future paid care - $9,000.00
6. Past out-of-pocket expenses pursuant to section 83 MACA - $13,707.13
[10]
ORDERS
1. Verdict and judgment for the plaintiff in the sum of $62,142.38
2. Defendant to pay the plaintiff's costs
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 August 2022