Bishoy Wahba Mansour v Bola Adel Awad

FURTHER EXAMINATION OF EXPERT MEDICAL OPINION

1. 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
2. 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.
3. 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).
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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."
15. 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."
16. 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."
17. 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."
18. 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.
19. 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.
20. 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.
21. 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".
22. 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].
23. 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
24. 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.
25. 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.
26. 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".
27. 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."
28. 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.
29. 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.

OPINION OF KAIN ELSMORE CA - 10 FEBUARY 2020 - EXHIBIT T

1. 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.
2. 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.
3. 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.
4. 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.

CONCLUSIONS - PAST AND FUTURE ECONOMIC LOSS

1. 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.
2. 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.
3. 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.
4. 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.
5. Ultimately the plaintiff for those reasons did not press mathematical calculation of past economic loss in the plaintiffs closing Schedule of Damages (MFI 9).
6. The defendant does not concede any entitlement to past or future economic loss.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
19. I allow superannuation of 11% in the sum of $1,183
20. Damages for past economic loss on this basis total: $11,935.25

THE PLAINTIFF'S FUTURE ECONOMIC LOSS

1. 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.
2. 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.
3. 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.
4. 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
5. 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.
6. 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.
7. 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.
8. 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).
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.
10. 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.

CONCLUSIONS FUTURE - PAID CARE AND OUT OF POCKET EXPENSES

1. 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.
2. The plaintiff relied on the MAS Certificates issued by Dr Paul Curtin, Dr Donald Faithful and Dr Alan Jager.
3. 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.
4. 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"
5. 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).
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. The defence tendered medico legal reports of two practitioners. Dr Andrew Keller, occupational physician (Exhibit 1).
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.

CONCLUSION - PAST OUT OF POCKET EXPENSES

1. 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.

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

ORDERS 1. Verdict and judgment for the plaintiff in the sum of $62,142.38 2. Defendant to pay the plaintiff's costs

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