Bushby v The Nominal Defendant

District Court of NSW|2019-09-27

Solicitors: LHD Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2014/00262312

Judgment

In these proceedings, the plaintiff, Mr Ronald Bushby, seeks damages against the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) ("MACA") for personal injuries to him as a result of the negligence of the driver of an unidentified vehicle which caused a motor vehicle accident on 4 November 2010 in Swinbourne Street, Botany in the State of New South Wales.
It is not in dispute that the plaintiff was riding his motorcycle behind a vehicle proceeding along Swinbourne Street near the intersection with Kurnell Street. An unidentified vehicle proceeded out of Kurnell Street and failed to give way to the vehicle behind which the plaintiff was travelling, causing that vehicle to brake suddenly and the plaintiff to take evasive action resulting in the plaintiff falling from his motorcycle and suffering injury.
There is no issue between the parties that the plaintiff has undertaken due enquiry and search in relation to the unidentified vehicle.
There has been agreement between the parties in relation to liability and contributory negligence. The parties have agreed that there was a breach of duty of care owed to the plaintiff by the driver of the unidentified vehicle for whom the defendant is responsible. There is also an agreement as to the percentage of the reduction for contributory negligence. The Court has not been informed of this agreed percentage.

The pleadings

The relevant pleadings relied upon are a Statement of Claim filed on 5 September 2014, a Second Further Amended Statement of Particulars filed on 15 August 2019 and a Defence filed by the Nominal Defendant on 14 November 2014.
Having regard to the agreement between the parties as to liability, it is unnecessary to set out a summary of these documents. However, the Defence does not admit the injuries, loss and damage as alleged in the Statement of Claim. Also, contributory negligence is pleaded by the defendant.

The oral evidence of the plaintiff

The plaintiff gave oral evidence that he was born in May 1978 and was at the time of the final hearing 41 years of age. He confirmed as accurate a chronology which became Exhibit C in the proceedings and in relation to which a limiting order was made concerning the statements in the chronology regarding medical reports. The plaintiff gave evidence that he was born in Darlinghurst in Sydney and attended Kingsgrove High School where he attempted the Higher School Certificate twice and did not pass. Since leaving school, he has undertaken no further study and has no trade or technical qualifications: T15. The plaintiff was very proficient in relation to sporting activities and ended up playing A-grade rugby league for South Sydney Rugby League Club for a number of years. As well as rugby league, he performed to a high standard in athletics and continued training after he had left school.
The plaintiff gave evidence that he was the eldest of eight children. In 1999, when the plaintiff was working at his current employment at Allied Packaging, the plaintiff's parents were sentenced to a term of imprisonment. To the plaintiff's great credit, he took responsibility for his younger siblings who ranged in age from 15 years to six months old. He temporarily left his position at Allied Packaging and for the next one and a half to two years looked after his siblings at the family home in Daceyville in Sydney which was a Housing Commission house. The plaintiff after one and a half to two years then returned to work at Allied Packaging where he still works. Until about eighteen months ago, the company premises of Allied Packaging were in Botany in Sydney. The plaintiff confirmed that he still essentially did the same work but had moved from being a general worker to a leading hand and now holds the position of foreman in the business. The plaintiff confirmed that prior to the accident, he had always performed some overtime work at Allied Packaging.
The plaintiff gave evidence that in 2005 he attended his general practitioner due to low back pain. He said the low back pain did not continue and he received no treatment for it. In cross-examination the plaintiff confirmed that he had problems with back pain as a child and he had been referred to a specialist, Dr Gibbs, who said that it was due to his bones growing too fast. He also agreed that in 2004 he saw his general practitioner about long-standing deep-seated back pain with his back being slightly tender. The plaintiff agreed that he had had back pain for a number of years and his pain had subsided at the time of the accident. He also said that his pain was not as bad as it was now when he had spasms.
The plaintiff confirmed that in 2008 he saw his general practitioner with a sprained right ankle. He could not recall obtaining physiotherapy in relation to it and could not remember having any problems with his right ankle in the period before the accident: T17.25. He said he was still running and stopped playing rugby league in 2008 or 2009. The chronology suggested that he played rugby league until one year prior to the accident which would indicate that he was having no continuing significant problems with his right ankle prior to the accident: see also T13.25.
The plaintiff gave evidence in relation to the motorcycle accident on 4 November 2010. He confirmed that he was proceeding down Swinbourne Street in Botany and fell down with his motorcycle when the vehicle in front swerved and braked to avoid a car coming out from the right. The plaintiff said that in the fall his right ankle was caught in the front wheel of the motorcycle and the motorcycle fell on top of him. The plaintiff said that in the accident his ankle dislocated and was "facing [his] face" and he was in excruciating pain. When he lifted the bike up somewhat his ankle went straight back into place: T18.14. He said a number of persons came on the scene soon after and there were witnesses. An ambulance was called, he was taken to Prince of Wales Hospital, an x-ray was undertaken and he was discharged soon after on crutches.
The plaintiff said that he did not attend work the next day but attended work the day after whilst on crutches: T18.42.
The plaintiff said that immediately prior to the accident he held the position of foreman at Allied Packaging (T18.46) and there were between six to eight employees at the time in the firm (T18.50). He said the company produced paper packaging in large machines which ran four days a week on Monday to Thursday between 6am and 4pm which were the hours he worked, apart from overtime. The plaintiff said he organised the workers, started the machines and loaded the paper. The plaintiff said that each roll of paper weighed about 350kg: T20.16. The rolls were delivered by trucks and he loaded the rolls usually by himself up to 40 times per day: T20.33. A forklift was used by him to get the rolls of paper into place. The plaintiff loaded the majority of rolls: T20.41. The plaintiff said that there were four sheds at the site and he was busy going between the sheds, seeing his boss and supervising the workers. There was a morning tea break of 10 minutes and a lunch break of 30 minutes. The plaintiff said he enjoyed his job and got on well with his boss Mr Phillips. The plaintiff said he completed overtime on Fridays and sometimes Saturdays undertaking the same jobs and worked about seven extra hours on a Friday after which he went home to the family home in Daceyville. He said the family home had lawns and a garden and a pool. Prior to the accident the plaintiff said that he undertook the lawns and gardening which took him between half an hour and 40 minutes once per month: T23.1.
In relation to the cleaning and domestic tasks, the plaintiff gave evidence that these were shared between himself and his partner of 18 years, Ms Hannah Annesley: T23.8; T23.44. At the time, the plaintiff said Hannah was working two days a week in a day care position and he still had some siblings living at home. Later evidence established that immediately before the accident the plaintiff had three children with Hannah with his youngest child being only a few months old. Hannah was taking maternity leave at the time. The plaintiff confirmed that he did some cleaning daily and that both prepared meals and undertook the shopping. The plaintiff said he did his "fair share" of laundry and washed his car himself: T24.11-.17. He said that Hannah and he also looked after his siblings who remained at home.
Later, in response to questions from the court, the plaintiff said that prior to the accident he did all outside domestic duties including looking after the lawns and the pool and Hannah did domestic duties inside although he did some domestic duties: T53.10 cf T23.50. In cross-examination, the plaintiff confirmed that essentially he did the outside tasks and Hannah did most of the inside domestic tasks whilst he helped with some cooking, laundry and cleaning if needed. He said there was no strict delineation between the parties and Hannah did the majority of the internal domestic duties: T58.15.
The plaintiff said that when he went back to work soon after the accident he was on crutches and "hopped around" at work for a number of months but still helped push the paper reels in place but did not operate the forklift and instructed others: T25.27. He said no more staff were employed while he was on crutches: T25.39. He said he also wore a boot on his injured ankle for six months while attending physiotherapy three times a week for a number of months from late 2010 to January 2011. Despite the three month estimate of attending physiotherapy in Exhibit C, the plaintiff gave oral evidence that he attended physiotherapy for about 4 to 5 months: T26.8.
The plaintiff said that his physiotherapist said about five to six months after the accident that he should attempt jogging. He said he attempted it once and that night his right leg went into spasm for the first time: T26.32. Even before the jogging, the plaintiff said he had pain in the right ankle.
The plaintiff gave evidence that at the time of the accident he was living with Hannah and his children and some of his siblings in the Daceyville house but soon after the accident, he moved with his family to a rental property in Ramsgate in Sydney. This was partly because his parents went back to the Daceyville house. His siblings stayed with his parents when this occurred. At about this time, the plaintiff stated that he took steps to obtain custody of his sister's children who were two nieces. He said the children were going to be taken from his sister due to alleged domestic violence issues. In due course, again to the plaintiff's credit, he obtained care of the two nieces and they remain with him: T27-T28. The plaintiff's evidence was clear that at the time of the accident the two nieces did not live with him: T28.2. The plaintiff said that after the accident he obtained a lift to and from work.
The plaintiff stated that in the six months period until he suffered his first leg spasm he had not got back to 100% of his normal duties at work. The plaintiff gave evidence that at this time he was still completing overtime on a Friday and Saturday and working normal hours from Monday to Thursday. The fulltime work and overtime was with some restrictions as to his activities: T29.3.
The plaintiff was asked further questions in relation to undertaking domestic duties after the accident. The plaintiff said that he could not do any house work or other domestic duties after the accident: T29.36. He said the lawn mowing was done by either Hannah or by a third party which he paid for. He said it was done about once a month and cost him $40. The plaintiff said that he "did nothing" (T30.7) as he was always in pain and lay down each afternoon when he got home from work. After the spasms started, the plaintiff said he had spasms a few times per week in the right foot (T30.15) and nothing in particular brought the spasms on. He said they could occur randomly including at work and the spasms, which were painful, could last between five minutes and half an hour: T30.29. The plaintiff said that when they occurred at work he could not move and he lay on the ground. He used ice or hot water packs which had no effect. He said he was also taking a lot of painkillers at the time which were prescribed for him by Dr Kyriazis, the general practitioner to whom he was referred. When the spasms occurred, the plaintiff stopped work until they concluded. He confirmed that his boss David Phillips had been with him on occasions when the spasms occurred and he said that "everyone saw it": T31.30.
The plaintiff gave evidence that he lived at Ramsgate in rental accommodation for about two years. He said he eventually took public transport to work and worried that he would have spasms whilst on public transport.
The plaintiff confirmed that whilst he was living at Ramsgate, Hannah, his partner, did all of the cleaning, shopping, laundry and other domestic duties: T32. He said that upon coming home from work he sat down in his recliner chair and put his right foot up. At this time the plaintiff said that whilst he was undertaking overtime he had given up sports and social occasions partly because there was a lot on and he was taking action to obtain custody of his two nieces: T33.23. In cross-examination, the plaintiff said that in this period he was obliged to take his two nieces once or twice a week from their foster care house in Sutherland to access with their parents. This consumed a lot of his time.
The plaintiff gave evidence that he moved from Ramsgate with his family to a house at Kogarah Bay. He said he drove a motorcycle to work as he did not need to use his leg to drive it. He said he worked normal hours with restricted duties and he had spasms on occasions. He also confirmed that he still did overtime on Fridays and Saturdays. The plaintiff said his spasms at this time were becoming more frequent and could occur daily and last up to two hours. The plaintiff confirmed that the spasms were occurring more at work and were lasting for longer when they occurred. He also said that he was suffering from pain in his right ankle and was taking medication for it. If the spasms occurred, he gave evidence that they went from his right leg right up the top of his right hip.
At the Kogarah Bay house, the plaintiff confirmed that he continued to undertake no domestic tasks and that his partner Hannah looked after their three children and his two nieces: T35.25. In relation to the lawns and gardens, he said that Hannah looked after them once a month and it took her 10-15 minutes to do them. At this time the children were young and they did not help with domestic duties. The plaintiff confirmed that Hannah did the shopping and that although he sometimes went to the shops, he did not like it because he was anxious that he would have spasms in public and would need to lie down: T36.14.
At this time the plaintiff said that the spasms made it difficult to go to sleep and he woke up if a spasm occurred: T36.23. He said nothing in particular brought the spasms on and at this time they occurred more at night when he relaxed. If a spasm occurred at work he would have to stop his work.
The plaintiff gave evidence that he and his family then moved from Kogarah Bay to Woy Woy. At this time the plaintiff said that he had concerns about his ability to keep working and he wanted a cheaper lifestyle: T37.9. The plaintiff also gave evidence that Hannah's grandparents lived on the Central Coast at the time.
The plaintiff stated that he went to work at Botany by catching a train at Woy Woy to Central Station in Sydney and then a bus. He said this took about two hours. He started at 6am and finished at 4pm and got up at about 3:30am to go to work. He said he lived at Woy Woy for four years and left the house there about 15 months ago. Initially, the plaintiff said that he did some overtime but not a lot: T38.20.
The plaintiff gave evidence that during the trip on public transport to work, he often experienced spasms which caused him to be in tears with the pain. He said that was why he did not like to use public transport and it caused him to be anxious. Also on occasions he did not obtain a seat which required him to remain standing.
The plaintiff gave evidence that he commenced not going home and staying at his work overnight about two years ago: T39.7. He said that his boss said to him that he noted that the plaintiff was struggling with fatigue. He said that a bed was arranged for him at the warehouse and there were toilet and shower facilities. At that stage the plaintiff said that he spent about two nights a week at Botany and went home at least once per week and once on the weekend using public transport: T39.38. The plaintiff said that his physical condition and his absence at the factory was hard on Hannah and took a toll on her and their relationship was on and off: T39.50. During this time the plaintiff confirmed that he still did overtime on Fridays and Saturdays.
The plaintiff was asked about his income since the accident. The plaintiff confirmed that his income had increased since the accident as he was working more. However, he said that he did not get his work done on occasions during the day because of spasms. He said that when these occurred which could last up to two hours, he did nothing: T40.49.
In cross-examination, the plaintiff confirmed that his income had increased considerably in the last few years. He accepted that his income on a gross basis had increased from about $135,000 in the 2014 financial year to $193,000 per annum gross in the 2015 financial year, to about $197,000 in the 2017 financial year and to $225,000 gross per annum in the 2018 financial year. He said that he earned a similar amount for the financial year ending 30 June 2019 and took home more than $3,000 per week net.
The plaintiff gave evidence in chief that when he lived at Woy Woy upon arrival at home he immediately showered and then lay down. He said there were lawns at the house which were done about once per month at a cost to him of $40. About 15 months ago, the family moved to a rental house at Point Clare and he paid someone to do the lawns once a month for $60.
The plaintiff gave evidence that the factory of Allied Packaging moved from Botany to Revesby about a year ago. He said the work site was not similar and there was one big shed, although the same type of work was undertaken. He said the machines were all in the shed and his boss had hired a demountable which was placed in the shed for him to sleep in. His boss also had built a bathroom there for him to use. The plaintiff said he was still working and completing overtime. He said other employees worked between 6am and 4pm. He said he was working seven days per week and that he did not get his work done in the 40 hours. He said he had spasms in his leg every day and sometimes twice per day and that they could last for 5 to 10 minutes to 2 hours. The plaintiff said he could not work for less than seven days and needed to get his work done. While the plaintiff said his duties were the same he said that his responsibilities had increased since the accident and it took him more time to do: T44.5. He said he now runs the factory and is in charge all the time and that the work of the company had increased but there were the same number of personnel: T44.18-.41.
In cross-examination, the plaintiff confirmed that Allied Packaging was one of one or two firms that made the specialist packaging production which it did in Australia. He said it was a very competitive market and the work needed to be done on time in order to retain clients. The plaintiff gave evidence that the work and orders had increased substantially at the company and this necessitated him working longer hours seven days a week: T43.2; T43.31. This was reflected in the plaintiff's increased salary.
The plaintiff said that he tries to spend two nights a week at the Point Clare house now with his family. He said when he does go home he has a hot shower and says hello to the children and sits in a recliner chair: T44.46-T45.11. He said otherwise Hannah does all the domestic duties at home. On occasions, the plaintiff said that when he gets home to spend time with the children, Hannah is not there.
The plaintiff then gave brief evidence in relation to the treatment he had received. He confirmed that following the accident he had received physiotherapy and whilst attempting to jog had experienced later a spasm in his leg. He said he was referred by his general practitioner to Dr Lunz who referred him for an MRI and to Dr Hannan who diagnosed dystonia. He said Dr Hannan treated his pain and dystonia condition with nerve block injections and Botox. The plaintiff was also referred to Dr Tay at the Prince of Wales pain clinic. He said he still saw Dr Tay and has followed the treatment recommended by his various doctors. The plaintiff said he had an arthroscopy of the ankle performed by Dr Lunz and had a pain pump inserted in his stomach to assist with his pain. When it became infected he had it taken out. He said he had about a week off when the pain pump was put in his stomach and a week off when it was taken out following the infection. He said this was taken as sick pay. The plaintiff gave evidence that he currently saw Dr Tay every three months and his general practitioner about twice a year. He said Dr Tay had given him nerve blocks and cortisone injections and more recently a radio frequency block which did not provide benefit to him: T47.21.
The plaintiff said Dr Tay's treatment had not reduced his pain or the frequency of the spasms: T47.44. The plaintiff confirmed that his current medications were Baclofen, Endep, Valium and Gabapentin. He said he took the medications daily and side effects included loss of memory, dizziness and fatigue. He said the Endep and Valium was taken at night and enabled him to have four to five hours sleep. He said he was not seeing any other doctors. The plaintiff reported the cost of the medications to him as being $40 per month.
Prior to the accident, the plaintiff said he had never thought of when he would retire: T49.6 He said Allied Packaging was his first job and he had never thought of leaving. He said it was a daily struggle to continue work but he had to provide for the five children. At present, his partner Hannah worked two days per week.
In relation to the plaintiff's spasms, he said that they came out of nowhere and could result in his toes clawing, his big toe facing up and his ankle inverting. He said that his calf went into spasm and the spasm continued up his leg to his hamstrings and then to his hip. On one occasion, his calf muscle tore about four years ago during a leg spasm. The plaintiff confirmed that he had ketamine infusions on two occasions a few years ago but the relief was for a very short period. The plaintiff said that the spasms included causing a burning or tingling sensation in the knee and they made his leg very sensitive.
During a leg spasm, the plaintiff described his pain as 10 out of 10 and he confirmed it was excruciating pain. He said he had difficulties squatting and the spasms had caused problems right up to his lower back where he felt a knot. A spasm would cause sharp pain which came and went. He said the spasms could occur while he was walking or sleeping and while he attempted to relieve it with hot water bottles and ice, this was ineffective. The plaintiff said that his leg swelled up every now and again particularly in summertime and there were changes in the colour of his leg. He said he had difficulties kneeling on his right leg and had to adjust his sleeping position to his left side with the assistance of a further pillow for comfort.
The plaintiff said that the accident had an effect on his family which made him "low" particularly in relation to his oldest daughter aged 12 who has autism. He said his partner Hannah attended to taking that daughter to occupational therapists and speech therapists. The plaintiff said that his altered circumstances had created tension between himself and his partner and he would like to spend more time with his family if he could, including assisting his partner Hannah with her domestic duties. The plaintiff said that prior to the accident he was a "hands on dad" and assisted his children with school work activities and with outdoor activities. He said he no longer did that.
The plaintiff said that prior to the accident the cooking was mostly done by his partner but both assisted with cleaning and washing duties. The plaintiff said he does not cook anymore as he gets home late and he has difficulties standing for periods in the kitchen: T55.42.
In relation to his bedding and accommodation at the factory at Revesby, the plaintiff said the bedding was taken home and was washed by his partner, the area was cleaned by the cleaners and in relation to meals, these were mostly prepared by his partner Hannah which he heated up in a microwave.
In cross-examination, the plaintiff confirmed that at the time of the accident he was the foreman at Allied Packaging and that he was living at Daceyville with his partner Hannah: T57.13-.22; T57.31. He also confirmed that at this time they had three children. The plaintiff confirmed that he did the work outside and his partner Hannah did most of the domestic tasks inside with him helping to some degree with cooking and laundry and cleaning when needed: T58.9-.43.
In relation to his work, the plaintiff confirmed that he had worked up to the position of foreman and at one stage had a forklift licence which he no longer still had. He accepted that he could renew the licence and could still drive a forklift when required. He said he had always had the same boss, Mr Phillips, and they had a good relationship. At the time of the accident, the plaintiff confirmed that he worked fulltime with overtime of about 17 hours: T60.14. The fulltime duties were from Monday to Thursday and with overtime on Friday and Saturday. Overall, the plaintiff worked 55 hours a week and his pay reflected that degree of overtime: T60.31. At the time of the accident, the plaintiff was the only foreman at the factory premises and the only person above him was the owner Mr Phillips who he reported to: T60-T61.
In relation to Allied Packaging, the plaintiff confirmed that it had been around since the early nineteen fifties, was a market leader in cardboard packaging and in the course of his experience at the company, he had acquired a technical skill. He confirmed that as the foreman, he scheduled the works and ensured that the orders were filled and these were conveyed to him once received by phone or email by the receptionist at the company. At the time of the accident, there were five to six employees and himself working at the factory: T62.4.
The plaintiff gave evidence that the work position had altered since the accident. The plaintiff said that there were "definitely" more orders, that business had boomed but that although there was substantially more work, there was tough competition. He said that Allied Packaging had increased its market share and that the volume of work had significantly increased since the accident in 2010 but that the business employed still the same number of people to complete the increased work: T62.41. The plaintiff confirmed that longer hours were required from the workers to complete the work and that the five to six employees were not the same as those in 2010: T62.45. He agreed that the quality of the employees varied and that it was a difficulty to train them and as a result the plaintiff had to work harder.
In relation to his superior and the owner of the business, Mr Phillips, the plaintiff confirmed that he was not at the business as often and that he relied on the plaintiff more. The plaintiff also stated that Mr Phillips was placing more reliance on the plaintiff it was necessary for the plaintiff to "step up" and take a greater role in supervising employees which he found stressful: T64.18. The plaintiff said that he did the work and that if he did not others would do it. The plaintiff agreed that due to his skill and knowledge he did a substantial amount of work and the increased hours lead to extra income. The plaintiff agreed to the increase in his earnings which has already been referred to above: T64-T65.
The plaintiff agreed that as the owner became more reliant on him, he had assumed a more important role in the business and he had more to do with suppliers and keeping on top of the orders. He agreed that his role had increased in the last two years and particularly since the company had moved to Revesby. The plaintiff also confirmed that he had a relationship with the suppliers and they rang up to talk to him and that in the last year he had gone out about four times with Mr Phillips to talk to suppliers. The plaintiff agreed that Mr Phillips was "grooming" him and that he had attended the meetings and become a point of contact. He said he did not deal with customers as these were filtered by the receptionist who passed the orders through to him. The plaintiff agreed that the work was increasing regularly and that he arranged the logistics of prioritising orders if urgent orders were needed to be completed: T6719-.30. Despite that, the plaintiff still performed an active role on the factory floor, operating machines, pushing the rolls of paper to load the machines and using the forklift or assisting others where they needed help: T67.32-T68.5. He said he juggled the orders to ensure they were completed on time and when necessary spoke to suppliers and liaised with Mr Phillips. The plaintiff said that he completed machine logbooks which were needed for each machine sometimes at the end of the day: T69.31.
The plaintiff confirmed that the machines operated from Monday to Thursday for 10 hours and they were shut down at 4pm. He said other machines where needed, operated from 4pm to 8pm. On occasions, the plaintiff agreed he worked a 15 hour day and said he rarely worked after 9pm, but had worked a 16 or 17 hour day if there was an order to fill. The plaintiff said he tried not to stop at the lunch break as he is back and leg occasionally seized up. He said he went to bed at 9pm and the above was the course of his work for the last couple of years. He confirmed that as a result of the increased workload his income had increased and he had become an integral part of the business. The plaintiff said that if Mr Phillips the owner was not there people came to him. The plaintiff also agreed that he was at most times happy with his work.
In relation to domestic matters, the plaintiff confirmed that he had not done any work around the house since the accident. When pressed on this as to whether he had done nothing at all, the plaintiff said "pretty much": T71.50. When it was put to the plaintiff that his condition had improved as summarised in the report of neurologist Dr Sharpe following physiotherapy in the few months after the accident before his spasms had commenced, the plaintiff confirmed that the swelling had gone down but he was still in a lot of pain. He accepted that there was some improvement and he could walk more easily particularly after he stopped using the crutches but he had a limp. When it was suggested to the plaintiff that when the improvement occurred he could have done some domestic tasks around the house, the plaintiff said he was working and was busy and it was difficult because he was limping, his leg was bruised and he used ice to assist with the swelling and pain. Importantly, the plaintiff confirmed that his partner Hannah did the lion's share of the domestic duties in the house both after and before the accident: T74.31. The plaintiff also confirmed that he had never done the lawns at any of the houses he had lived in since the accident.
The plaintiff was then cross-examined for some time about his changed living arrangements since the accident and the various houses he had moved to. The plaintiff confirmed that in 2013 he assumed responsibility for his two nieces. At this time he was living at Ramsgate. The plaintiff confirmed that on occasions during his relationship with his partner Hannah they had lived apart and shared custody but during the week Hannah looked after the children and he saw them at weekends when he was not working. The plaintiff confirmed that his work commitments reduced his time with the children and that was also the case now.
In relation to the present position, the plaintiff said his children were now 9, 12 and 16. He confirmed that they could dress and bathe themselves and could do their homework. He agreed that he did not have a lot of time now because of the pressures of his work. The plaintiff confirmed that he tried to get home on Saturday afternoon, particularly to spend dinner with the family either at home or out. He confirmed that he needed to work seven days a week as his role was a hands-on role and sometimes other people also worked on the weekend at the factory. He agreed that when he got home his emphasis was the children and to have dinner together as a family.
When it was suggested to the plaintiff that he could do some domestic tasks now if he was requested by his partner, the plaintiff said that he did not do any. He said he could probably try to put a load of washing on but did not: TT81.17. When it was put to him that he could wash the dishes, he said he would not do so and would get his children to do it. However he accepted that he could do it if necessary: T82.9. When it was suggested to him that he could do most things in the house if he wanted to, the plaintiff said he could not bend over to pick items up or kneel down. He agreed that he could do tasks such as dusting and accepted that he could do some tasks at home but does not as Hannah does it: T82.41. He agreed that he would have difficulty cleaning the bathrooms and that his spare time essentially was spent with the children and then he returned to work.
The plaintiff said that when he moved to Woy Woy, a house was rented and then his partner Hannah and the children moved into the house with him. Due to the commuting to Sydney, the plaintiff was up at 3:30am and left the house at 4am to get to work by 6am. The plaintiff said he did not undertake further overtime at night because of the length of the train journey. He agreed that when he was at Woy Woy he had no real time after he came home and that essentially he had dinner and went to bed, with his partner Hannah doing the domestic tasks. If he drove, he left at about 4am and spent some days at the factory as he was physically too tired to come home. He said this continued for two years and he had Sundays off unless he needed to work. While he agreed that he could have done some domestic tasks if asked in this period, he spent most of the time when home with the children. The plaintiff agreed that since moving to Revesby with the new factory location that he had worked seven days a week to the present time. He said he drove to and from Revesby to his house at Point Clare when he came home.
In relation to his medical conditions, the plaintiff agreed that his symptoms were highly variable and that he had been able to walk during the hearing to the witness box quite normally: T90.13. This was the court's impression also. He agreed that at present he saw Dr Tay every three months and took medication. He agreed that he was "definitely" reluctant to have a spinal simulator inserted to assist with the pain: T90.31. He also agreed that his back pain came on later and was connected with his leg spasms. He agreed that at times he had no back pain and that it varied and came and went.
In re-examination, the plaintiff confirmed that the move to Woy Woy by his family was partly due to the fact that he thought he would have to leave work. This is reflected in what he said to doctors during consultations as early as 2015. The plaintiff said that his working was a "day-to-day thing" and that he was in a lot of pain to work but continued as he had five children to look after. He said his body was getting worse from his injuries and work: T95.25.
In relation to the hypothetical scenario put to him by counsel for the defendant where his partner left him a note to undertake a task, he said that he would get the children to do it. He said after work he was in physical distress with pain and needed to relax. He said he would ask someone else to do it if they were capable of doing it.
The plaintiff confirmed that despite him taking on more responsibility and communicating with suppliers he still spent more time working hands-on on the factory floor.
The plaintiff agreed that the current business environment for his employer was very competitive, there was a lot of pressure and they had recently lost a client. He said there are only a couple of businesses like theirs in Australia and, accordingly, there was continuing pressure on himself and his boss.
The plaintiff also confirmed that one of the reasons for him having to work longer hours was because of his leg spasms and his need to catch up. He said the spasms could last up to two hours, could occur at work, and if the work was not done, he would have to catch up when the spasms ceased. He said the spasms could last five minutes or much longer and if they occurred at work he would have to close the machine, lie on the ground and then catch up.
The plaintiff impressed me as a frank and honest witness. I did not perceive any exaggeration or embellishment by the plaintiff in the course of his evidence. At all times I formed a clear impression that the plaintiff was doing his best to give his evidence truthfully and completely to the best of his recollection. He made concessions where appropriate and resisted opportunities to tailor his evidence to improve his case. The plaintiff was also a fairly good historian, although he could not recall the precise times that he resided in certain premises and could not recall some medical appointments. This is not surprising having regard to the number of doctors he has seen. Overall, I accept the plaintiff as a witness of truth who generally gave reliable and accurate evidence.

Oral evidence of Ms Hannah Annesley

Oral evidence was given by Ms Hannah Annesley who is the partner of the plaintiff. The plaintiff and Ms Annesley have three children together aged 16, 12 and nine. She said she was presently working as a childcare educator part-time two days per week on the Central Coast and had known the plaintiff for 20 years since she was 16. She agreed that as at the date of the accident her youngest child was several months old and she was on maternity leave.
Ms Annesley was asked about domestic duties performed by the plaintiff as at the time of the accident in November 2010. In relation to the children, Ms Annesley said that the plaintiff was involved in everyday duties including looking after the children emotionally and physically and doing his fair share of parenting. In relation to duties outside the house such as the lawns, gardens and washing the car, Ms Annesley said that the plaintiff undertook these tasks prior to the accident. In relation to inside domestic duties, Ms Annesley gave evidence that the plaintiff and her shared domestic duties equally including cleaning, cooking, attending to the laundry and ironing. She said it was an arrangement of equal completion of domestic duties. She denied that prior to the accident she attended to the domestic duties alone inside the house.
After the accident, Ms Annesley gave evidence that she has completed all domestic duties and that the plaintiff's contribution has ceased. She assessed the extra hours at between eight to 10 hours per week with the latter figure being more appropriate when outside work was included. She said she initially attempted to do the outside domestic duties but now these were paid for. She said she did them at the beginning for about six months.
Ms Annesley gave evidence that the plaintiff began having spasms between three and six months after the accident and that following them, his personality changed, he was in more pain and he was tired. The plaintiff was also no longer as involved with the children's activities and did not assist with the children's sport. The plaintiff's emotional issues cause problems with their daughter who has autism and also with their son. Ms Annesley said that she has now picked up a greater role in relation to the daughter with autism. This meant she could not go back to work as much. She assessed that the accident had caused her to take on an extra 20 hours per week in relation to the children including extra time with the daughter who has autism. This includes spending substantial time at the weekend. This appeared a high figure in the light of her estimate of an additional 8-10 hours of domestic assistance performed by her since the accident. I will consider this further below.
Ms Annesley was asked about the move to Woy Woy. She informed the court that this was in 2015. Various medical reports before the court suggest that it was in December 2014: see Exhibit A at pages 306 and 365. Ms Annesley said that at this time they were trying to work out what was best for them and on the Central Coast there was support for her from her grandparents who are now deceased.
Ms Annesley said that following the move to the Central Coast the plaintiff on coming home was exhausted. She said he would sit down and often fall asleep. At this time her hours of domestic duties did not change. However, they had someone undertake the lawn mowing. She said this was the same position today at their current house at Point Clare.
Ms Annesley confirmed that when the plaintiff came home she had seen his leg in spasm and it appeared to affect his whole body. She described it as like a seizure with the plaintiff's leg becoming very rigid. She said it could come on at any time and she did her best to support the plaintiff. She said a spasm could last from ten minutes to one hour. She said the plaintiff slept downstairs and on occasions she heard him scream out when he had a spasm. She confirmed that he was on medication.
Ms Annesley said that the plaintiff was not capable of going out more when he came home because of the amount of pain he was in. She said that he often was seen crying when he had a spasm. She described him as emotionally fragile, lacking coping skills and not being physically capable of doing things.
In cross-examination, Ms Annesley was asked about the period after the accident and before the plaintiff's spasms commenced following the receipt by him of physiotherapy. She agreed that the plaintiff went from crutches to a leg boot but there was no improvement in his condition. She disputed that there was any significant improvement in his mobility and denied that he had very little limp and was mobilising well at this time. She also denied that there was any improvement in his condition and said that his position as at January 2011 was the same as in December 2010. This description by Ms Annesley was quite different to the history given to Dr Sharpe, neurologist, as set out in his report dated 19 December 2011 (Exhibit A page 480) when he said: "I understand that he was referred to you [Dr Kyriazis] and that under your care he had a program of physiotherapy with a slow plan to return to work. At the end of three months there is only a little swelling of the ankle with some minor pain, but his walking was reasonably good."
Ms Annesley confirmed that the plaintiff went back to work within a few days on crutches and then a boot. She could not recall in detail the timing in relation to physiotherapy and having the boot removed, but her recollection was that there was no improvement in the plaintiff's mobility. She said he was worse now.
Upon cross-examination, Ms Annesley confirmed that the plaintiff had undertaken no domestic work around the house at all since the accident and she had completed all domestic duties. She said that in her view he was not capable of doing any domestic duties. When it was suggested to her that he was capable of doing some domestic duties, Ms Annesley conceded this but said that he could not do any the way he was working and when he came home. When it was asked whether she was suggesting that he was not capable even of lifting a bag of clothes, Ms Annesley said that she "can't comment": T131.18. She said that from her observation the plaintiff was in chronic pain 24 hours a day and when he had the spasms he screamed out and was crying: T131.32. She did not know that the plaintiff pushed large rolls of cardboard at work: T132.2.
Ms Annesley confirmed that at the time of the accident they were living at Daceyville and she was living in the house and the plaintiff was working 55 hours a week with overtime and working six days per week. She disputed that when the plaintiff was working he did not undertake domestic duties prior to the accident. She agreed that prior to the accident the plaintiff spent time with the children and kept an eye on them and undertook the outside duties relating to the lawns and the garden.
It was put to Ms Annesley that in relation to inside domestic duties prior to the accident she was generally responsible for undertaking most domestic duties inside while the plaintiff occasionally assisted: see T58.9-.34. Ms Annesley disputed this and said that the plaintiff was much more involved. She agreed however that the plaintiff only had Sunday off from his work. When it was put to her again that she had more time to do domestic duties than the plaintiff prior to the accident, Ms Annesley said she had a newborn baby as well as a disabled child to look after. She agreed however that she was in the household for more time than the plaintiff. Ms Annesley said that she relied on the plaintiff to give support in relation to housework including the laundry.
Ms Annesley agreed that in 2013 the plaintiff obtained custody of his two nieces. She also agreed that for one and sometimes two nights per week on returning home from work he drove to Sutherland to collect his nieces for the purpose of taking them to access visits. She did not recall when the plaintiff came home but said he was working hard at the time. When it was put to Ms Annesley that the plaintiff undertaking such a lot of driving was inconsistent with him being incapable of assisting, she said that driving was different to domestic duties.
Ms Annesley was cross-examined in relation to her assessment of her undertaking an increase of between eight and 10 hours of domestic duties per week after the accident with the figure being 10 hours if outside duties were included. When it was put to her that this figure was a guess she disputed it and said that the figure was roughly about eight to nine hours excluding external duties. She agreed that now she did all the laundry, ironing, dishwashing, tidying, making the beds and cleaning the bathroom. She said she could not recall the plaintiff doing anything over the last 10 years or so since the accident and that she did not expect him to do anything: T136-T137 especially at T137.15.
Ms Annesley was asked whether the plaintiff assisted with ironing before the accident. She confirmed that he did for about an hour a week. The plaintiff's evidence was inconsistent on this issue. At T55.20 he said that he did not iron before the accident but at T82.27 the plaintiff said that he "partly did ironing before [his] injury". When Ms Annesley was asked whether she meant that the plaintiff was currently incapable of ironing, she said he was "not capable of doing a lot": T138.20. Ms Annesley said the domestic duties were not part of what the plaintiff does now.
Ms Annesley agreed that the hours the plaintiff worked had increased over time and that at Woy Woy he got up to leave for work at 4am carrying a work bag and worked a full day. She agreed that he was tired when he came home between 6pm and 7pm and rested and that she did the dinner and house work. She also confirmed that other than spending time with the children he went to bed early as he was getting up early. She agreed that when they moved to Woy Woy he was home less frequently and she would see him two or three times a week.
In relation to the current position, Ms Annesley confirmed that the plaintiff was working seven days a week, came home on Saturday afternoon and left for work on Sunday. This was the position including from when the business had moved to Revesby and that he had accommodation there. She confirmed that when he came home he spent time with the children and she did not expect him to do house work. Ms Annesley said he was tired after a heavy week. She agreed that she did not ask him to do any housework but if he was healthy she would have. She also agreed that in relation to the children their needs had changed over time and that they were independent as to self-care other than the smaller daughter.
Ms Annesley appeared to the court to be a confident witness who was generally making her best effort to give truthful evidence. She appeared to have a fixed view that since the accident the plaintiff was incapable of undertaking any domestic duties. She has taken it upon herself to complete all domestic duties since the accident and was firmly of the view that the plaintiff was incapable of doing anything at home. Her evidence was inconsistent with that of the plaintiff as to the division of labour in the household prior to the accident. Overall, while I accept that Ms Annesley was attempting to give complete and truthful evidence, I prefer the plaintiff's recollections to hers. The plaintiff's evidence as to the division of labour was more consistent with someone who worked six days a week with extensive overtime. Prior to the accident, Ms Annesley worked part-time but was on maternity leave. Even with a small child and a daughter with developmental difficulties, it is likely that she undertook far more domestic duties at the time than the plaintiff whilst the plaintiff provided some support to her with inside duties while he was working his long hours. Her evidence of her undertaking 20 more hours weekly with the children after the accident appears to be highly unlikely where the plaintiff was working 6 days per week before the accident: T60.31, T78.15 cf T124.30.

Oral evidence of Mr David Phillips

Oral evidence was given by Mr David Phillips, the owner and managing director of the company for which the plaintiff works, Allied Packaging Pty Ltd. Mr Phillips confirmed that the business was currently located at Revesby. He stated that he was 69 years of age and that he had acquired the company in 2000 and had become its managing director. He confirmed that it made packaging products particularly corner protectors in packaging and was the dominant manufacturer of that material in Australia. He said that the company was originally located at Botany and had moved to Revesby in June 2018. He said there were six to seven employees working on the factory floor operating five key machines.
Mr Phillips confirmed that the plaintiff had commenced as a junior machine operator and had become foreman about seven to eight years ago. This was different to the plaintiff's evidence. He said he was foreman at the time of the accident. Mr Phillips was somewhat vague about the date and I prefer the plaintiff's evidence on this issue.
Mr Phillips said he came upon the plaintiff at the scene of the accident shortly after as he was driving the same way. He said he stopped to assist the plaintiff. Since that time, Mr Phillips said that he had seen the plaintiff at the Prince of Wales Hospital pain clinic as his wife was also a chronic pain sufferer and was under the guidance of the Prince of Wales Hospital pain management team.
Mr Phillips gave evidence that he saw the plaintiff at the company premises and that he went often out to the factory floor. He said he had observed the plaintiff lying down many times with pain. He said the pain appeared to be random. He said he had seen the plaintiff's leg in spasm.
When it was put to Mr Phillips that the company's income had increased since 2010 he said it had "plateaued". This was despite his later evidence that the company's orders and business had increased substantially. Mr Phillips said that he planned to continue operating the company in the short term for a period of one to 2 years and had a goal of moving out of the company and selling it.
He confirmed that the plaintiff stayed some nights at the factory at Revesby and said that this was for the plaintiff's "welfare". He said the plaintiff's family lived on the Central Coast which was a long journey and a high risk one in the circumstances. He said he could see that there was a need for the plaintiff to be able to stay at the factory. He said the plaintiff staying at the factory did not relate to the profits of the company. He confirmed that accommodation for the plaintiff with a bed was made available at the factory at his initiative. This was to avoid the risk of travel.
In relation to the company's business, he said that usually the machines went off at 6pm but they could keep going until 8pm. He agreed that the plaintiff was at the factory late. He also confirmed that it was unnecessary for a person to be with a machine while it was operating the whole time. This was variable and some machines could be left for an hour or two while they were still functioning.
He confirmed that the plaintiff came back to work soon after the accident. Whilst he was clearly injured, the plaintiff appeared robust. Mr Phillips hoped the injury would be of a short duration but it had not proven to be and the plaintiff had got dystonia. He described the plaintiff's work effectiveness as between 80 to 100% and his individual performance had suffered with his injury. He agreed that the plaintiff's time away from work relating to his injury would be recorded in the company's sick leave record.
In cross-examination, Mr Phillips confirmed that he had bought the business and operated it since 2000 and that his plan was to sell the business in one to two years' time.
He confirmed that when he acquired the business, the people in the factory knew what they were doing and that he gave commercial input to the business. He agreed that the plaintiff had worked up to his current position in the business and was "absolutely" a valued employee. He also agreed that the plaintiff had good communication skills, he got on with the people on the factory floor and he was good at what he did. Mr Phillips accepted that production at the company had increased since 2010 and that more product was produced since the plaintiff's accident. He said that the business had stabilised and had gone into different directions while being the market leader in its field in Australia. He said that while there is competition for the company, it was mainly from overseas and that Allied Packaging was "virtually" the sole manufacturer of its line of cardboard products in Australia with 100% Australian product.
Mr Phillips agreed that the plaintiff was good at prioritising orders and where there were ad hoc orders which the company could manage, the plaintiff was able to deal with them including urgent orders if the order was not too big. Mr Phillips said that the company had "definitely" received more orders in recent times and that business was booming with more demand while the mix of work was different. He agreed that there needed to be flexibility in working in the company and that there was also a need for someone with knowledge of the whole process of manufacture.
Mr Phillips said that he had confidence in the judgment of the plaintiff and in his work with the other workers and that the plaintiff had not let him down. He agreed that the plaintiff was his second-in-command. He described him as having a "terrific knowledge" in relation to the machinery and the manufacturing methodology and that he was very important to the company. While he agreed that attempts were made to ensure there was a leading hand, he said that workers did not have the skills, knowledge and common sense of the plaintiff. He agreed the plaintiff only came to him for guidance if it was absolutely necessary and that the plaintiff kept the orders going out and dealt with problems including responsibility for overall management of the work of the machines. He said the plaintiff's technical knowledge was good. He said the plaintiff occasionally used a forklift.
Mr Phillips agreed that the company's records showed that the plaintiff's income had increased progressively in recent years. While someone else handled the payment of wages he had a broad idea as to what was paid and said that in the 2019 financial year the plaintiff had had a 2% or 3% increase in his earnings. It was put to Mr Phillips that in the period 2014 to 2016 the plaintiff's income had jumped by $50,000 per annum. He said he was aware of this and it was as a result of the plaintiff working longer hours rather than taking any more responsibility. In relation to meeting with other companies, he agreed that in the last year he had taken the plaintiff along to meet other manufacturers of cardboard. He said he took the plaintiff along to see what other manufacturers were doing and to increase his knowledge. Mr Phillips said the plaintiff was a good worker and was keen to know more.
Mr Phillips seemed not to have detailed knowledge of the plaintiff's working hours. However, he agreed that the plaintiff was working longer hours on the machines and did paperwork during and after business hours. When it was suggested to him that the plaintiff did more work now than he did three to five years ago he replied "possibly" (T116.22) and that he had not compared the hours. He agreed it was possible that the plaintiff worked seven days a week and on some occasions did not get home, but he was not aware of his precise movements. Mr Phillips conceded that the plaintiff working long hours was to his benefit but that he was rewarded for it. When it was suggested that the plaintiff could not commute sensibly while he was working such long hours he agreed, but said that staying at the factory was to meet his "welfare". He agreed it was impossible to work very long hours and return home late to the plaintiff's residence at Point Clare and come back early the next morning. He said that staying at the premises of the factory avoided a danger to the plaintiff.
When asked about the running of the machines, Mr Phillips said the machines worked from 6am to 4pm but could work longer hours closer to 8pm. He said they could also have problems with the machines which required them to be repaired and then catch up work was needed after hours. Mr Phillips said he would have no hesitation in recommending the plaintiff as a dedicated loyal worker with good knowledge.
In re-examination, Mr Phillips said he thought highly of the plaintiff but his injuries were relevant.
Overall, I accept Mr Phillips as a witness of truth who was doing his best to assist the court. He had a very high opinion of the plaintiff and his loyalty, work performance and knowledge. He also appeared to put great faith in the plaintiff looking after the other workers and the orders that were given. I formed the impression that Mr Phillips left production matters largely to the plaintiff and did not have a close knowledge of the hours worked by him or what was done in the overtime period other than the manufacturing of product as ordered. In general terms, Mr Phillips made concessions where appropriate and I accept his evidence.
As stated, Mr Phillips gave evidence that he is 69 years old and hopes to sell the business in the next year or two as an ideal result.

The medical evidence

As was stated above, a voluminous amount of medical evidence was tendered in the course of the proceedings consisting of 100 medical or allied health reports in the joint tender bundle, Exhibit A. Whilst the court has reviewed all of the medical material in Exhibit A, it is necessary only to refer to the more important medical reports in these reasons.

Pre-accident history

The plaintiff was a professional rugby league player for some years prior to the accident before commencing with his present employer, Allied Packaging.
The medical evidence does not reveal an extensive relevant pre-accident medical history. The report of Dr Dalton, rehabilitation specialist, dated 29 June 2015 provides as follows: "I have reviewed the medical records of Dr Kyriazis. These confirm that Mr Bushby had been seen by Dr Affleck on the 5th December 2008 after sustaining an injury to his right ankle. He reported sudden pain as he stepped over a ridge in the pavement at work and presented with a limp and marked tenderness over the right talofibular ligament in keeping with lateral ligament strain. No follow-up visits are recorded …"
The plaintiff also reported in the materials various ankle strains to the left and right ankles during his football career, none of which apparently caused him relevant ongoing issues.

The New South Wales ambulance report

A New South Wales ambulance attended the scene of the accident. The officer's report (Exhibit A page 538) reveals that the ambulance was booked at 4:50pm and arrived on the scene at 5pm. The nature of the accident was referred to and more relevantly, there was no reported head injury and no loss of consciousness. The plaintiff was complaining about right ankle pain at the time he was seen by the ambulance officers and stated that his right ankle dislocated but was now back in place. It was also noted that the plaintiff did not complain of cervical or back pain.
The plaintiff was transported to Prince of Wales Hospital and arrived at 5:30pm. Other medical evidence (for example Dr Spira's report dated 19 April 2018, Exhibit A page 250) notes that plain x-rays of the ankle were taken which revealed no evidence of fractures. The plaintiff was supplied with underarm crutches and discharged from the Emergency Department within an hour of his arrival.
Dr Spira sets out the following history: "Mr Bushby informed that he remained in considerable pain within his right ankle and was unable to go to work on the following day. He did, however, resume work following the weekend, but remained on crutches at that time. His job was supervisory but he also operated machinery which he was unable to do due to his ankle injury. He remained at work at full-time but mainly supervised others. Mr Bushby was seen by the WorkCover doctor some days after the accident and further radiographs were obtained. These again demonstrated no evidence of traumatic change. Mr Bushby was treated with physiotherapy and analgesics, primarily Panadeine Forte. Mr Bushby continued to use the crutches for about two or three weeks and thereafter resumed independent gait but with a limp due to ankle pain. Mr Bushby continued to note discomfort within the ankle and his general practitioner and physiotherapist found it difficult to explain why this was so."

Prince of Wales Hospital and immediately thereafter

In the MAS Review Panel Certificate and Reasons dated 12 June 2018 which commence at page 209 of Exhibit A, the Review Panel from page 4 of their reasons (Exhibit A page 212) undertakes a detailed examination of relevant material up to that date. At page 8 of the report (Exhibit A page 216), the Review Panel refers to the Emergency Department records from 4 November 2010 which referred to mild swelling and tenderness about the right lateral malleolus of the ankle. The Review Panel also referred to a discharge summary which mentions moderate swelling and tenderness over the right lateral malleolus with an x-ray showing no fractures, although there was soft tissue swelling over the lateral malleolus. A diagnosis of ankle sprain was apparently made.
There is a reference to return to work documentation noting that the plaintiff had been provided with a support boot, physiotherapy and analgesia. It is said that the plaintiff was certified fit for specified restricted duties at fulltime hours.

MRI of the right ankle dated 11 April 2011

In Exhibit A was an MRI report by Dr Wendy Brown dated 11 April 2011. The MRI report noted that there was evidence of a previous ligamentous injury with tears of the deltoid, tibiofibular and talofibular ligaments. There was also a small osteochondral defect of the talar dome where there was a partial thickness cartilage loss. It is noted that the MRI was taken several months after the accident.

MRI of the brain dated 10 August 2011

An MRI report of the plaintiff's brain dated 10 August 2011 by Dr Williams showed essentially a normal report. This was ordered by Dr Hannan, a rehabilitation specialist, due to the plaintiff having spontaneous muscle spasms and dystonia.

MRI of the cervical and thoracic spine dated 15 August 2011

An MRI of the cervical and thoracic spine dated 15 August 2011 by Dr Kuan was in general terms normal.

MRI of the right ankle dated 20 October 2011

An MRI of the right ankle was reported on by Dr Linklater on 20 October 2011. This report referred to ligament scarring and a lateral talar dome osteochondral lesion. Dr Lunz, in a 24 October 2011 report, noted an injury to the plaintiff's lateral ligament complex on his right ankle relying on this report.

MRI of the right ankle dated 22 May 2013

At page 552 of Exhibit A is an MRI report dated 22 May 2013 of the plaintiff's right ankle. Scarring to the plaintiff's right ankle ligaments was noted. It was also noted that features of posterior impingement had progressed compared to the previous MRI. The report was that of Dr Noakes.

Ultrasound right leg dated 7 January 2015

An ultrasound of the plaintiff's right leg was reported on by Dr Hiew on 7 January 2015 with a history given of recurrent cramps and muscle spasm. This showed a 3.2cm tear consistent with a partial tear of one of the plaintiff's calf muscles on his right leg. The plaintiff said this occurred during a spasm.

Reports of Dr Lunz

The plaintiff's treating general practitioner referred the plaintiff for review to Dr David Lunz, a foot and ankle surgeon. Dr Lunz reviewed the plaintiff in the period from April 2011 (although the Review Panel noted an earlier report at Exhibit A page 216) until January 2014. A number of reports were provided by Dr Lunz to Dr Kyriazis, the plaintiff's general practitioner.
In his report dated 27 May 2011, Dr Lunz noted that the plaintiff had an MRI scan reported on by Dr Linklater which showed evidence of an injury to the lateral ligament complex as well as the deltoid ligament to the plaintiff's right ankle. Dr Lunz noted that the plaintiff had spasm in his peroneal tendons and an inability to invert his right foot. Forced inversion caused the plaintiff pain. Dr Lunz expressed the opinion that the plaintiff had developed a mild eversion dystonia as a result of the motor vehicle injury. Dr Lunz referred the plaintiff to Dr Hannan who he described as a "world expert on eversion dystonia" and said that this may require Botox injections into the peroneal tendons and a tri lock ankle brace.
In his report dated 14 October 2011, Dr Lunz noted that the plaintiff was being treated by Dr Hannan for his eversion dystonia with Botox and that it had improved significantly, although the plaintiff still complained of pain about his right ankle which fluctuated in intensity. Dr Lunz said that the plaintiff reported requiring regular analgesics. Dr Lunz also noted that the dystonia was much better and the ankle itself was not as painful but there was some continuing pain.
In a report dated 24 October 2011, Dr Lunz noted the repeat MRI showed an injury to the lateral ligament complex as well as the deltoid ligament complex. Dr Lunz said he was not keen to undertake surgery as this could trigger the eversion dystonia.
In a report dated 13 February 2012, Dr Lunz noted that the plaintiff had been having continued trouble with his leg with spasms. Dr Lunz stated: "This is a very rare condition and very few doctors understand much about dystonia. There are not many people who have any insight into the condition but it is certainly a real condition. Ron's pain needs to be managed appropriately but the dystonia needs to run its course and he will need to see Dr Hannan again."
In a report dated 11 June 2012, it was noted that the plaintiff's ankle joint was in pain and in spasm of the peroneal tendons. After referring to the radiological investigations, Dr Lunz stated that the scans showed evidence of injury to the ankle joint with evidence of posterior impingement, tendinosis and tendinitis. He noted that his diagnosis of eversion dystonia was confirmed by Dr Hannan. Dr Lunz expressed the opinion that the plaintiff sustained a subtalar joint dislocation on the right ankle which corrected itself. He also said that the plaintiff injured a number of ligaments in the right ankle in the accident and sustained a defect of the lateral talar dome bone in the right foot which subsequently led to an eversion dystonia. Dr Lunz noted that the plaintiff may require some assistance with domestic duties as a result of the accident, particularly gardening and domestic chores otherwise there would be developing pain by prolonged walking and standing. He noted that although the plaintiff was fit for work, the eversion dystonia was a more complex condition that could be prolonged for many months and may require repeated episodes of treatment.
In a report dated 30 May 2013, Dr Lunz noted that the plaintiff had been attending the pain clinic at Prince of Wales Hospital under the care of Dr Tay and that he was currently on Endep, Panadeine Forte and Gabapentin. The plaintiff reported ongoing pain and locking of the right ankle with an examination by Dr Lunz showing fairly global ankle tenderness. Dr Lunz expressed the opinion that the plaintiff had a complex regional pain syndrome, a dystonia, impingement and a lesion of his talar dome in his right foot.
In a report dated 1 August 2013, Dr Lunz reported on a right ankle arthroscopy in which a small loose chondral body was removed.
In a report dated 15 August 2013, the plaintiff noted that his foot had a lot of swelling which had now settled but he reported an episode of dystonia.
In a report dated 20 January 2014, the plaintiff noted a flare in his pain and having good days and bad days. While the plaintiff's ankle moved freely and his impingement was negative, he had pain and continuing dystonia.

Reports of Dr Tay, pain specialist

The plaintiff was referred to Dr TG Tay, a pain specialist at the Prince of Wales Hospital pain management clinic. Dr Tay provided a number of reports for the period from 2012 to 2017 which were part of Exhibit A.
Dr Tay expressed the opinion that the plaintiff had a right lower leg complex regional pain syndrome type 1 which he assessed and managed for the plaintiff. Dr Tay is consistent in his assessment of a complex regional pain syndrome type 1 ("CRPS") in his various reports and notes that the plaintiff reported deep pain in his right lower leg below the knee and in his ankle. In his 30 November 2012 report, Dr Tay said that the plaintiff's symptoms "correlated to early onset of CRPS". In his report dated 8 March 2013, Dr Tay said that further surgery on his ankle should be discouraged unless there is a definite organic cause. In his report dated 22 March 2013, Dr Tay noted that the plaintiff reported increased pain compared to six months ago but there were no obvious objective findings that the CRPS had worsened.
In his 7 May 2013 report, Dr Tay noted that the plaintiff complained of pain in the ankle, hamstring and also in the right lower leg associated with dystonia and locking of his right ankle intermittently which lasted for a few minutes. Dr Tay said it may be worthwhile to explore the option of a spinal cord stimulator to modulate the plaintiff's pain and prevent further deterioration.
In his report dated 11 June 2013, Dr Tay noted that the plaintiff complained of a constant background pain in the right ankle and also intermittent locking pain associated with inversion dystonia which did not appear to be interfering with his work. In a report dated 21 January 2014, Dr Tay noted that on examination the plaintiff's inversion dystonia in his right ankle and foot had worsened. In his report dated 21 February 2014, Dr Tay confirmed the right leg complex regional pain syndrome type 1 but that the plaintiff was functionally stable. In his report dated 23 May 2014, Dr Tay noted that the plaintiff reported his right leg pain had been gradually worsened but he was still able to keep up with his work. He noted that no apparent dystonia was detectable by him.
In a report dated 11 March 2015, Dr Tay referred to the plaintiff having a partial tear of his right calf muscle spontaneously at the beginning of 2015 which had aggravated his usual right leg or foot pain and CRPS. He noted that the option of a spinal cord stimulator had been considered and discarded because of the plaintiff's heavy work.
In a report dated 9 November 2016, Dr Tay noted the plaintiff having two types of pain, a constant and deep sharp pain inside the right ankle and secondly, an episodic and right lower leg pain triggered by movement or which could occur spontaneously and lasting for hours. He noted that more recently the plaintiff's pain and dystonia problems had become worse and were not responding to high doses of oral medications or repeated injection blocks. He recorded that the plaintiff's sleep was disturbed by pain and dystonia. Dr Tay expressed the opinion that the plaintiff's right leg pain and dystonia was consistent with a diagnosis of complex regional pain syndrome type 1. He said this commonly occurred after a minor injury following a period of immobilisation and was thought to be caused by central nervous system sensitisation and cortical re-organisation. Dr Tay expressed the opinion that the progress for the plaintiff's complete recovery was very poor and there was no curative treatment for the pain syndrome. He said the plaintiff required ongoing advice and treatment from a multidisciplinary pain team including a psychologist, physiotherapist and occupational therapist. Dr Tay was of the view that the accident had contributed to the onset of the plaintiff's pain syndrome and functional impairments and that the majority of pain syndromes occur in the distal part of the extremities after a minor or major trauma.
The diagnosis of a complex regional pain syndrome type 1 was made by Dr Tay in his report dated 6 November 2017 and he stated that the plaintiff required ongoing lifelong multidisciplinary treatment. He said his prognosis for the plaintiff's pain and dystonia had not changed. There are no later reports of Dr Tay in evidence.

Reports of Dr Scott Hannan

Dr Lunz, the plaintiff's treating foot and ankle surgeon, referred the plaintiff for review to Dr Scott Hannan, a specialist in rehabilitation medicine. There are references in a number of reports to Dr Hannan being a specialist in the treatment of dystonia. Dr Hannan treated the plaintiff from 2011 until 2014 when he apparently retired. Initially, the plaintiff was referred to Dr Hannan for review of "his painful right ankle": Exhibit A page 484. In his initial report dated 14 June 2011, Dr Hannan described the plaintiff's presentation as follows: "He presents with peroneal muscle spasm though describes extremely painful episodes of inversion/plantar flexion spasm, usually in the evening or at night. Aside from his motor vehicle accident he has no history of trauma or any neurological signs or symptoms other than "rolling his ankle" once or twice while playing rugby league but that was over 6 years ago": Exhibit A page 484.
In his report dated 14 June 2011, Dr Hannan noted that there were no changes to suggest the plaintiff had a complex regional pain syndrome at that time, but he recorded gross restriction of movement in the hind foot with a fairly poor range of inversion as well. Dr Hannan stated as follows: "These signs and symptoms are typical of an eversion dystonia secondary to peripheral trauma. However, he is quite adamant that when his foot goes into severe spasm his foot inverts and dorsiflexes, suggesting that there is a dynamic inversion posturing as well as part of his dystonic process. I have seen this pattern spasm in agonist or antagonist muscles before, but mainly in the upper limb … I believe as you do that this gentleman has a dystonia of his ankle, with spasm of his peroneus longus, brevis and tertius and extensor digitorum longus. The history and examination matched the other 20 or so cases that I have treated like this in the past. The inversion component he complains of complicates things. However, the fact that his dystonia came on many months after the initial injury is still consistent with dystonia secondary to peripheral trauma, as the definition is applied to any dystonia occurring up to one year after significant injury to a limb."
Dr Hannan described the plaintiff's condition as "a severely debilitating condition, which will start to interfere with what work and physical exercise he can do": Exhibit A page 487.
By report dated 2 August 2011, Dr Hannan noted that he had injected the plaintiff's right ankle with Botox which he describes in his report as due to the eversion of the ankle. He noted on examination that there was spasm in the plaintiff's right foot. Dr Hannan added: "Initially I expect his ankle to be painful with physiotherapy, given it has been fixed in a fairly static varus deformity for ten months and sometimes I use Mobic and/or Panadeine Forte pre physiotherapy to ensure that the patient gains the maximum out of their sessions": Exhibit A page 489.
Following Dr Hannan's Botox treatment of the plaintiff, the plaintiff's eversion dystonia resolved. However, in a report dated 7 February 2012, Dr Hannan noted that the plaintiff's intermittent inversion dystonia (where the plaintiff's right foot inverted in spasm on occasions) was now more apparent as could be seen "from the wear on his shoes". He also noted that he was yet to see in person the plaintiff's foot spasm into inversion.
In a report dated 19 March 2012, Dr Hannan recorded that the plaintiff said to him that the inversion dystonia was extremely painful but only lasted a few minutes and had continued intermittently. The plaintiff had apparently provided the doctor with a photo of the inversion and the doctor confirmed that the plaintiff's forefoot had inverted with spasm. Dr Hannan noted that he had seen inversion dystonia as a protective mechanism following injury occurring at the level of the spinal cord usually but he had also seen patients with opposing dystonia varying intermittently following trauma.
Importantly, in his report dated 15 May 2012, Dr Hannan stated that he wished to see the plaintiff's foot in spasm and following walking with the plaintiff to fatigue his muscles, he noted that the right foot suddenly locked into severe spasm with the plaintiff's right knee fully extended and initially he was unable to move it. The plaintiff's foot was also flexed and inverted "fairly maximally". Dr Hannan noted that over two hours passed before there was some relaxation in the plaintiff's right foot in order for him at least to be able to partially weight bear and leave his waiting room. Dr Hannan expressed the opinion from what he had observed on 15 May 2012 and what the plaintiff stated as the start of his inversion spasms, that this was fairly typical of the onset of most dystonias of the ankle/feet that he had treated: Exhibit A page 495.
On 26 June 2012, Dr Hannan injected the plaintiff with Botox in his right ankle for the purposes of assisting with the plaintiff's inversion dystonia (Exhibit A page 497), which he described in his 7 August 2012 report as starting to become more prevalent and lasting for much longer over the past few months. Despite the Botox injections, the plaintiff reported having several episodes of foot spasm which lasted up to about five minutes with no apparent precipitating cause. The plaintiff added that his major complaint was pain in his leg. Dr Hannan added: "However Mr Bushby's foot has never been typical of previous traumatic dystonias I have treated given he presented with two separate entities; an eversion dystonia which we treated last year with great success and an inversion dystonia in the same limb which progressively became worse and may well be a permanent disorder in that we may be able to only manage symptomatically. Time will tell".
In his report dated 13 August 2012, Dr Hannan expressed the opinion that the plaintiff was developing a chronic pain syndrome due to his complaints of pain as well as the dystonia secondary to the trauma from the accident. In a report dated 24 September 2012, the plaintiff was recorded as having informed Dr Hannan that he was getting episodes of his foot "locking up" almost on a daily basis and lasting for up to 5 minutes as well as having generalised pain to his whole lower right leg below the knee. He stated that his pain was present all the time. Dr Hannan said that about 10% of dystonias tend to progress and involve other muscles, and pain was always present in patients who have a dystonia of the hand or foot, although in the absence of spasms, patients do not usually complain of pain very much.
In a report dated 29 November 2012, Dr Hannan noted that the plaintiff's inversion dystonia as reported had slowly progressively worsened over time such that it was happening on almost a daily basis to the plaintiff. Dr Hannan confirmed that dystonias occurred secondary to peripheral trauma such as occurred in his motorcycle accident: Exhibit A pages 504-505.
In a report dated 9 July 2013, Dr Hannan noted that the Prince of Wales Hospital pain clinic had diagnosed the plaintiff as suffering from a chronic regional pain syndrome but that the doctors in the pain clinic had not seen the plaintiff's right foot in spasm. Dr Hannan recorded that a few weeks previously to his 9 July 2013 report, he had seen the plaintiff's whole right leg go into spasm starting with his hind foot then his forefoot inverting and with his knee becoming straight with spasm: Exhibit A page 506. Further injections of Botox were given by Dr Hannan to the plaintiff in July 2013 which reduced the episodes of spasm and the plaintiff reported being "very pleased with his foot, ankle and lower calf": Exhibit A page 509. However, in a report dated 5 September 2013, Dr Hannan noted that the plaintiff's dystonia was progressing with the chronic regional pain syndrome exacerbating the dystonia and that there was spasm in the plaintiff's hamstrings: Exhibit A page 512. By 27 November 2013, the plaintiff reported to Dr Hannan that his foot was going into spasm as a daily occurrence starting with his ankle going into inversion and involving his whole leg up to his hip. Dr Hannan said that this was similar to what he had noted previously with the plaintiff's whole leg locking up and going into spasm all the way to his groin: Exhibit A page 513.
Further injections of Botox were given by Dr Hannan in 2014 due to the plaintiff experiencing daily episodes of his right leg locking up which lasted up to 1½ hours: Exhibit A page 515. In his last report in evidence dated 11 September 2014, Dr Hannan noted that each time he had observed the plaintiff's dystonia it also involved muscles above the knee including his quadriceps and his hamstrings although it appeared to originate in the right ankle. The plaintiff informed Dr Hannan that after injections of Botox, his bouts of spasm resolved for at least a week but returned intermittently: Exhibit A page 516.
As stated above, it appears that Dr Hannan retired in 2014.

Report of Dr Tisch, neurologist

The plaintiff tendered a report of Dr Stephen Tisch, neurologist, dated 1 May 2012. The plaintiff's treating doctor had referred the plaintiff to Dr Tisch for review following pain in the right ankle and suspected dystonia. Dr Tisch noted that there was no dystonia present during his examination, although there was a mild inverted posture of the right foot as well as pain on passive movements of the right ankle. The plaintiff was limping on the right foot due to pain. Dr Tisch stated as follows: "Clinically Ronald suffered a right ankle injury complicated by intermittent dystonic posturing of the right foot. Fixed dystonia following limb injury often in association with complex regional pain syndrome is a more common pattern than mobile spasms. Similarly it is unusual that Ronald's dystonia changed direction from eversion to inversion. Nevertheless I share the view that he suffers an organic post traumatic dystonia syndrome. It is of great significance that he reports severe pain in the right ankle when walking when dystonia is not present. This suggests that ongoing ankle pathology rather than dystonia is independently contributing to his ankle pain and disability … Ronald's ankle was injured in the original work injury with ongoing pain and disability, and a major component of pain and disability independent of secondary dystonia...": Exhibit A page 483.

Reports of Dr Kyriazis

The plaintiff was referred to Dr Kyriazis following his accident. Dr Kyriazis then referred the plaintiff to various specialists including Dr Lunz and Dr Hannan because of the plaintiff's recurrence of symptoms in his right ankle following initial improvement with physiotherapy: see Exhibit A page 518 and following. In his referring letter dated 19 April 2011, Dr Kyriazis noted that the plaintiff was initially treated with a resting boot then with a brace and physiotherapy.
In a more detailed report dated 16 September 2011, Dr Kyriazis referred to a past history of a right ankle sprain in 2008 which the plaintiff stated completely resolved within a couple of months. On examination, Dr Kyriazis noted that the plaintiff had a swollen right ankle with particular tenderness on the lateral side and that his initial diagnosis was a ligament injury/tear in the right ankle. Dr Kyriazis set out the details of the plaintiff's progress noting that in April 2011 the plaintiff reported a re-aggravation of the right ankle pain following resuming exercising. The treatment by Dr Lunz and Dr Hannan was noted generally. Dr Kyriazis was of the view that the plaintiff's prognosis was guarded and that muscle spasm and dystonia was an uncommon complication of an ankle injury "but may often result in long term pain symptoms and reduced function": Exhibit A page 522. Dr Kyriazis was also the person that referred the plaintiff to Dr Tay at the Prince of Wales Hospital pain clinic and for the various MRI scans and the ultrasound of the right leg.

Reports of Ms S Mossman, physiotherapist

The plaintiff was referred by Dr Lunz to Ms Mossman, physiotherapist, in 2013 following his right ankle arthroscopy in July 2013. The treatment arranged included training in relation to his gait, stretches and strengthening exercises. The plaintiff was described as highly motivated and Ms Mossman noted evidence of a complex regional pain syndrome. In her report dated 10 December 2013, Ms Mossman stated that the plaintiff reported inversion dystonia happening on a daily basis. She said that she had not noticed any significant change in the plaintiff's ankle despite the plaintiff being compliant with his exercise program. The plaintiff was reported as feeling that he was managing with his condition: Exhibit A page 537.

MAS certificates and reasons

The plaintiff has been reviewed a number of times by MAS Medical Assessors to determine whether his injuries arising from the accident give rise to a permanent impairment which is greater than 10% in order to qualify the plaintiff for an award of non-economic loss. In due course, a MAS Review Panel in a lengthy set of reasons held that the plaintiff's physical injuries were not greater than 10%. The plaintiff tendered the various certificates and the reasons which accompanied them in his case.
Following an assessment on 19 November 2015, Assessor Dr Burns produced a certificate with reasons dated 25 November 2015. Dr Burns found that arising from the accident the plaintiff had injuries to his lower left leg, ankle and foot which constituted soft tissue injuries with dystonia and a clinical complex regional pain syndrome type 1. Dr Burns set out the history given by the plaintiff including his history of symptoms and treatment following the motor vehicle accident. He noted that the plaintiff initially was diagnosed by Dr Hannan as having eversion dystonia which was treated and resolved completely but that an inversion component of the dystonia continued with only temporary improvement. The plaintiff reported that in around 2012 he developed more severe pain in the right lower leg which Dr Hannan believed may be a complex regional pain syndrome type 1. This was on the basis that Dr Hannan did not believe that the amount of pain the plaintiff was getting would in fact have been associated simply with the inversion dystonia. This resulted in the referral to Dr Tay, the pain management specialist. The 2014 tear to the plaintiff's calf muscle during one of the episodes of dystonia was noted. The plaintiff complained to Dr Burns of constant pain in the right ankle and ongoing pain and discomfort below the knee which could now extend up further towards his back.
On examination, Dr Burns noted that there was no evidence of muscle spasm in the right calf or right leg. An assessment was then made with respect to the criteria for a chronic regional pain syndrome and only four out of a possible 11 clinical signs were noted.
Dr Burns also noted that the plaintiff sustained a dislocation of his right ankle in the motorbike accident which was associated with ligamentous injury over the lateral aspect of the right ankle. He was diagnosed with eversion dystonia which had resolved and he currently had intermittent inversion dystonia.
Dr Burns found that there were caused by the accident a soft tissue injury to the right lower leg and ankle, dystonia and a clinical complex regional pain syndrome type 1.
Following the receipt of further medical evidence and another examination, Dr Burns found in June 2018 that the injuries caused by the motor vehicle accident, which were the same injuries he had found in 2015, did give rise to a permanent impairment which was greater than 10%. However, Dr Burns found that on physical examination in June 2018 that an injury to the right foot nervous system, and claimed musculo-ligamentous injuries to the right hip and lumbar spine were not caused by the accident.
After setting out a more detailed history of the plaintiff's symptoms since the accident, Dr Burns noted that the plaintiff walked with a stiff ankle gait favouring his right leg. After finding no apparent difficulties in the plaintiff's lumbar spine and right hip or knee, Dr Burns examined the plaintiff's right ankle. Dr Burns then noticed the inversion spasm upon examination: "Within 2-3 minutes of palpation of the right ankle and hindfoot he developed a significant muscle spasm and inversion dystonia in the foot. The entire foot went into approximately 20° of plantar flexion and full inversion. The big toe on that foot also began to claw. This was associated with significant pain and discomfort. The ankle was reviewed over a period of about 20 minutes and the dystonic episode did not cease. On passive testing I noted that I was unable to overcome the spasm, which left his ankle and hindfoot in plantar flexion and inversion."
Upon Dr Burns asking the plaintiff to fully weight bear on the foot, the foot went back into neutral but once the plaintiff removed his body weight from the ankle and hind foot, the dystonia took the position back into full plantar flexion and inversion: Exhibit A page 188. Dr Burns noted that he believed that the plaintiff's presentation was consistent and that the inversion dystonia he had seen was genuine. Dr Burns stated his diagnosis as follows: "I continue to believe that Mr Bushby sustained a dislocation of his right ankle in the motorbike accident. This was associated with ligamentous injury over the lateral aspect of the right ankle. It was also associated with a talar dome injury. Subsequently he developed an eversion dystonia, which resolved after treatment with Botox. He does though have an ongoing inversion dystonia. I note that on clinical grounds he was diagnosed as having CRPS Type I. From the documentation I have reviewed this was probably a reasonable diagnosis … Additionally, I note that there is no evidence on today['s] physical findings of an injury involving either his lumbar spine or a neurological injury involving his right lower leg."
The defendant sought a review of Dr Burns' certificate and there was ultimately a review by the Review Panel which found a soft tissue injury to the plaintiff's right ankle/foot and dystonia in relation to the plaintiff's right foot but did not find the Complex Regional Pain Syndrome Type I on examination. The Review Panel's analysis is lengthy and detailed and considers much of the medico-legal and treatment evidence relied upon in the proceedings.
The plaintiff informed two of the Assessors upon examination that there was persistent pain around the ankle causing him to limp although he continued working albeit less efficiently and needed longer to complete his usual tasks. However, he could walk on the ankle (Exhibit A page 245). The plaintiff noted that currently he was not receiving any specific treatment for the right ankle pain aside from Endep and he had persistent pain about the ankle, worse over the lateral aspect. The ankle could sometimes swell and there was intermittent inversion spasm that had continued occurring daily with pain and spasm often being worse at night. When spasms occur the pain could spread upwards to the lateral right knee, hamstrings, hip and lower back. The plaintiff acknowledged to the Assessors that the symptoms in the right ankle and foot were highly variable: "He can walk normally, other times he limps, and on most mornings, he needs additional time to get out of bed due to painful spasm about the right ankle. In the height of a severe spasm, there is nothing he can really do to obtain relief." The assessors found no changes to the plaintiff's leg which would indicate complex regional pain syndrome.
The Panel found there had been a right ankle soft tissue injury incorporating ligament damage from the motor vehicle accident. It found no evidence of any injury to the right knee, right hip or lower back caused by the accident. These areas were affected by the episodic spasm spreading from the right foot/ankle with the knee and hip becoming stiff during these periods. The ankle symptoms for the plaintiff were intermittent and episodic. No muscle contracture of the muscles was found at the ankle. However, the plaintiff's right ankle on the examination in February 2019 was found to be stiff and consistent with the nature of an orthopaedic soft tissue/ligamentous injury sustained in the accident.
The plaintiff was also assessed by Dr Roberts in relation to an alleged psychiatric injury. It was claimed that the plaintiff had chronic adjustment disorder with depressed mood. The plaintiff acknowledged to Dr Roberts the stress that his lifestyle placed on his partner particularly as he worked for long hours and did not spend quality time at home. After reviewing the reports of Dr Glen Smith and Dr Selwyn Smith, psychiatrists, Dr Roberts found that there had developed a chronic adjustment disorder with depressed mood consequent upon the effects of the motor accident. Dr Roberts held that although it could reasonably be considered that the plaintiff's lifestyle inclusive of a ninety hour work week and minimal time spent at home with family, may contribute to the psychiatric condition found, the physical effects of the motor vehicle accident were considered to have contributed to a greater than negligible degree in the causation of his psychiatric injury.

Reports of Dr Teychenne, neurologist

The plaintiff relied on two reports of Dr Paul Teychenne, neurologist. In his first report, following a 6 December 2017 consultation, Dr Teychenne set out a very detailed history in relation to the plaintiff. The plaintiff complained of a sharp "crunching pain" in the right ankle which would always occur when he walked and with dystonia occurring not only at night but also when he was walking or driving. Persistent pain in the right leg was noted over the last two and half years before 2017 and it was a sharp aching pain. It was recorded that in September 2016, a Baclofen pump was implanted in the plaintiff to assist with the pain but due to infection it was removed and following removal, the pain was worse. Dr Teychenne then considered and commented on a number of medical reports including the reports of Assessor Dr Burns, Dr Anthony Smith and Dr Neil McGill. Reports of Dr Hannan were also considered.
Dr Teychenne in his first report disagreed with the opinion set out in the report of Dr Anthony Smith, which I consider below, that the plaintiff was "manufacturing" physical signs regarding his current presentation. Dr Teychenne considered that the plaintiff had genuine neurological deficits and that he had been appropriately diagnosed and treated by his treating physician Dr Hannan. Dr Teychenne expressed the opinion that the plaintiff's weakness within the right leg was genuine and that a tremor in the right hip flexor muscles when attempting to maintain right hip flexion, was a common finding when patients exhibit weakness. He also considered that the plaintiff had genuine inversion dystonia of the right foot which he was unable to overcome on examination. Dr Teychenne expressed the opinion that the plaintiff's presentation was a consistent genuine presentation of a neurological deficit. He also noted that the plaintiff's condition was consistent with a complex regional pain syndrome. Dr Teychenne expressed the opinion that the clinical picture was consistent with damage to the right superficial peroneal nerve with some evidence that he had a complex regional pain syndrome secondary to damage to the right superficial peroneal nerve. His diagnosis was as follows: "I considered that Mr Bushby had probably sustained damage to the right superficial peroneal nerve which resulted in overriding dystonia within the distribution of supply of the deep perineal nerve, i.e., inversion dystonia of the right foot. I considered that on clinical grounds he probably had evidence of Complex Regional Pain Syndrome type 2 and that the treatment that he received was appropriate for Complex Regional Pain Syndrome and dystonia."
Dr Teychenne also considered that the plaintiff's fitness for employment was jeopardised to some extent by the inversion of the right foot and by the pain that he experienced, particularly that he would be restricted in his ability to walk distances, to walk up and down stairs and to go up and down ladders. The weakness in the right leg would restrict his ability to carry out heavy lifting. He considered that the plaintiff's injuries arose as a result of the motor vehicle accident and his prognosis for the plaintiff was "quite guarded": Exhibit A page 15. Accordingly, Dr Teychenne found there was an injury to the plaintiff's nervous system.

Reports of Dr Bodel, Orthopaedic Surgeon

The plaintiff relied on a number of reports from Dr James Bodel, Orthopaedic Surgeon.
In his first report dated 5 January 2018 following an assessment of the plaintiff on 28 November 2017, Dr Bodel noted that the plaintiff complained of pain and stiffness in the region of the right ankle and had pain over the whole of the right leg following the motor vehicle accident. The plaintiff said that he struggled with household maintenance and cleaning activities and had not been able to manage the garden or the lawn since the accident. On investigation, Dr Bodel found no clinical signs of a complex regional pain syndrome. Dr Bodel said that he strongly suspected that the plaintiff had a form of Complex Regional Pain Syndrome which had "largely burnt out now". He noted that he did not find any discrepancy on clinical testing as had been found by Professor McGill.
Dr Bodel expressed the opinion that the diagnosis was "difficult" but the plaintiff had a significant injury to the region of the right foot and ankle in the accident and the MRI scan showed evidence of significant pathology in the ligaments. He did not dispute the diagnosis of persisting dystonia and said that the plaintiff should continue under the care of Dr Tay for pain management.
In a later report dated 2 June 2019 following an assessment on 21 May 2019, Dr Bodel considered the reports of Dr Couch, Dr Teychenne, Dr Glen Smith and Assessor Dr Burns. He also stated that he agreed in principle with the domestic assistance needs assessment by the occupational therapist Ms Cogger dated 11 December 2017. Dr Bodel's diagnosis was of a soft tissue injury involving the ligaments of both the lateral and medial side of the ankle joint and the probable spontaneous dislocation of the sub-talar joint. He said the signs of a complex regional pain syndrome were now less convincing which was the "natural history of this clinical condition". He said the plaintiff's ongoing disability arose from the motor vehicle accident and that his prognosis was "very guarded". In another report dated 2 June 2019, Dr Bodel stated that having regard to the plaintiff's "very complex issue", he needed assessments by an occupational physician in relation to his long-term employability and psychological issues and also needed to be under the care of a neurologist to manage the dystonia: Exhibit A page 37. Dr Bodel referred to the absence of wasting in the thigh and calf which was relied on heavily by the defendant as indicating that the plaintiff's condition was intermittent and did not create a serious disability: Exhibit A page 32. See also Exhibit A page 24 in his 2018 report.

Reports of Dr Glen Smith, psychiatrist

The plaintiff relied on reports from Dr Glen Smith, psychiatrist, dated 29 November 2017 who reviewed the plaintiff on 28 November 2017. The plaintiff reported to Dr Smith that he felt stressed but denied severe depressive symptoms as he did not have time having regard to his work commitments. He said he denied ongoing anxiety regarding the accident and that he continued to drive his vehicle at the time of the current consultation. The plaintiff reported very long work hours and that he was coping reasonably with his employment with a sense of responsibility to continue his employment for his family and his employer. It was noted that the plaintiff had been treated with an antidepressant medication since the accident which he took on a daily basis.
Dr Smith diagnosed persistent depressive disorder with pure dysthymic syndrome which was mild: Exhibit A page 48. Dr Smith described the plaintiff as stoic and someone who tended to minimise the significance of his depressive symptoms, although his affect was reactive and appropriate. He expressed the view that if the plaintiff's physical injury including persistent pain and limitation in functioning persisted, then it was probable that his psychological symptoms would persist. Dr Smith was of the view that the plaintiff was fit to perform his usual work hours but not overtime.

Reports of Dr Couch, occupational physician

The plaintiff relied on a number of reports from Dr Michael Couch, occupational physician.
It is unnecessary to go through the detail of all of these reports which are overall comprehensive and thorough. In his first report dated 12 April 2015 following an assessment on 8 April 2015, Dr Couch recorded a detailed background history of the plaintiff and also a history of his subsequent treatment and progress. Dr Couch reviewed in his report the medical reports which he had been provided. It was noted that the plaintiff reported at that time severe painful muscle spasm occurring every day with very severe pain which required the plaintiff to lie down and do nothing until the spasm and pain wore off. The plaintiff said he was usually in tears. The plaintiff stated that he did not think he could continue working in the same job much longer.
After an examination, in which Dr Couch noted that the plaintiff's right leg was obviously abnormal in appearance with his calf muscles being obviously in spasm and hard to palpate, Dr Couch took the plaintiff for a walk and recorded that soon after, the plaintiff "developed obvious visible and palpable spasm of the right calf muscles with plantar flexion at the ankle and inversion in the hindfoot": Exhibit A page 67. Dr Couch noted that this was very similar to what Dr Hannan had reported as seeing as set out in his letter of 15 May 2012.
Dr Couch diagnosed: 1. Inversion injury of the right ankle and hindfoot with self-reducing dislocation of the hindfoot, with lateral ligaments tearing and scarring, a talar dome osteochondral lesion, synovitis in the subtalar and other ankle joint tendinitis; 2. Initial eversion dystonia was now persistent and probably worsening inversion dystonia; and 3. Complex regional pain syndrome type 1.
Dr Couch expressed doubts as to the plaintiff's ability to continue to cope in the long-term with his job and that he would continue to require treatment from the doctors taking over from Dr Hannan and from the Prince of Wales Hospital pain management clinic. He said the prognosis for the plaintiff was guarded and there had been no recent improvement, with the plaintiff considering that his dystonic component was getting worse.
In his report dated 15 January 2018 following an examination on 28 November 2017, Dr Couch was of the view that the plaintiff presented a similar but somewhat worse clinical picture than he did in April 2015 with the plaintiff's right lower limb inversion spasm becoming more persistent which was evident in the period he was with Dr Couch. Again, as an occupational physician, Dr Couch was concerned about how much longer the plaintiff may be able to maintain his job. As stated, the diagnosis was the same with gradually worsening inversion dystonia. He said the plaintiff was struggling more at work and should not be working more than 40 hours per week and no more than eight hour days, although he conceded that it may be best for the plaintiff to struggle on at work as long as he can having regard to his family responsibilities: Exhibit A pages 90 to 91. Dr Couch said he agreed with the report of Ms Cogger and supported her recommendations for both domestic and childcare assistance, including the hours specified. He said the injuries were a direct result of the accident: Exhibit A page 92.
In his report dated 7 August 2018, Dr Couch considered it particularly important that Dr Burns and he had observed severe and persistent plantar flexion and inversion spasm affecting the plaintiff's right ankle and hindfoot: Exhibit A page 96. Dr Couch noted that in November 2017, he observed the plaintiff's right lower leg to remain in a state of inversion and plantar flexion spasm throughout the 90 minutes the plaintiff spent with him. He conceded that the clinical features of chronic regional pain syndrome 1 were now less pronounced whereas the dystonia and spasm had become more severe. Dr Couch rejected the suggestion of an inconsistency and stated that the dystonia should be regarded more as an episodic condition with there being good consistency between what Dr Burns and he had observed as to the actual spasm. Accordingly, it should properly be regarded as intermittent dystonia. Dr Couch said the dystonia was, however, apparently becoming worse. He rejected the assessments of Drs Dalton and McGill for the defendants. Dr Couch expressed the view that there was a "genuine and severe episodic condition": Exhibit A page 98.
Dr Couch provided a final report dated 29 May 2019 following an examination of the plaintiff on 21 May 2019. In the examination, the plaintiff said that overall there had not been much change since Dr Couch's previous assessment and no improvement. The plaintiff reported the painful inversion dystonia in the right lower limb as being "more persistent and troublesome" than in 2015 (Exhibit A page 103). The plaintiff said that the dystonia/spasm now never fully relaxes. He recorded several severe episodes several times per week with excruciating pain. Dr Couch expressed the view that Dr Burns' assessment from June 2018 was consistent with his own observation of the plaintiff's spasm. Dr Couch diagnosed the same injuries to the right ankle and hindfoot, persistent painful inversion and flexion dystonia and complex regional pain syndrome 1. He also stated that the plaintiff overall was far worse than in 2015 and no better than in late 2017 with the dystonia/inversion spasm of the right lower limb becoming "more severe and persistent" (Exhibit a page 109). While the features of the pain syndrome had varied over time and to some extent with treatment, it still existed in Dr Couch's opinion. He commented that the plaintiff's current work hours were very unsatisfactory and he recommended restrictions because of the plaintiff's injuries. This was particularly the case with the plaintiff's marked fatigue. He expressed concern about how much longer the plaintiff could sustain his work. He said his condition was very unusual and he should remain under the care of his GP and Dr Tay. Although Dr Tay had recommended the trial of a spinal cord stimulator, Dr Couch said he did not know if it would benefit the dystonia part of the plaintiff's condition. He continued to support the recommendations of Ms Cogger, occupational therapist, and said the plaintiff's prognosis was "extremely guarded" (Exhibit A page 111).

Reports of Ms Cogger, occupational therapist

The plaintiff relied on three reports of Ms Natala Cogger, occupational therapist, dated 20 April 2015, 11 December 2017 and 27 May 2019. In her first report, Ms Cogger stated that the plaintiff's pain had impacted on his ability to perform domestic duties and that prior to the accident he shared custody of the children with his ex-partner. That comment is inconsistent with the plaintiff's evidence. The plaintiff said he was living with his partner Hannah Annesley at the time of the accident and there was no suggestion they were separated and living under the same roof. Ms Annesley confirmed that in her evidence. Ms Cogger states that since the accident, the plaintiff has relied on gratuitous assistance from his "ex-partner", Ms Annesley, with domestic tasks and caring for their children. The plaintiff's evidence was that, in substance, Ms Annesley always undertook the majority of domestic tasks within the house prior to the accident although he provided some assistance. Ms Cogger recommended commercial assistance with domestic tasks and gardening tasks of 24.5 hours per week now and in the future and that the plaintiff would benefit from pain management, physiotherapy and vocational training.
Her analysis of the gratuitous assistance provided from the accident to the date of her report is provided in paragraph 7.6 and her recommendations are set out in paragraph 8.
It is repeated that prior to the accident the plaintiff shared custody of his three children with his ex-partner and that he would care for his children during the week and on weekends. This was inconsistent with the plaintiff's oral evidence that he and his partner were together at the time of the accident with him being responsible for tasks outside the house and with his partner being responsible for most domestic duties within the house. Essentially, Ms Annesley lived with the plaintiff and their three children (with the youngest child being very young) in a usual family relationship at the time of the accident.
Paragraph 9.1.5 of Ms Cogger's report, where she states that the plaintiff reported that Ms Annesley would visit when he had the children and help with their primary care needs, again appears to be inconsistent with the plaintiff's evidence of the position soon after the accident.
In the second report, it is noted that since the 2015 assessment the plaintiff has continued to rely on gratuitous assistance from his partner, Ms Annesley, with domestic tasks and caring for the children. Commercial assistance with domestic tasks and gardening tasks is recommended for 24.5 hours per week now and in the future. Why that was the case where domestic assistance was provided by the plaintiff's partner in relation to domestic and childcare matters, is unclear: see paragraph 6.5 of the report. The statement in paragraph 7.1 that the plaintiff confirmed that he was responsible for 26 hours of domestic, gardening and pool maintenance tasks per week prior to the accident was not reflected in the plaintiff's oral evidence. However, the confirmation that the plaintiff has continued to pay for assistance with lawn and garden maintenance was consistent with the plaintiff's evidence. The plaintiff stated that Ms Annesley has performed all domestic tasks since the accident. Although a recommendation is made for commercial care to enable Ms Annesley to resume fulltime employment (see paragraph 8.1.1), no evidence was given by the plaintiff that Ms Annesley was ever in fulltime employment. The fact that she has been there to undertake domestic tasks for the plaintiff, including looking after the children as was apparently her primary role before the accident, has enabled the plaintiff to work considerable overtime to the financial benefit of the family as a whole.
In the third report of Ms Cogger dated 27 May 2019 following an assessment on 30 April 2019, Ms Cogger states that the plaintiff now lives on site Monday to Saturday which has significantly impacted on his time with his family. The plaintiff gave evidence of attempting to return home once or twice a week particularly on a Saturday night. Ms Cogger reports that the plaintiff has continued to rely on gratuitous assistance from his partner, Ms Annesley, with domestic tasks which is consistent with the plaintiff's oral evidence. Her recommendation for the plaintiff requiring commercial assistance with domestic tasks and gardening tasks for 24.5 hours per week now and in the future is consistent with her earlier recommendations and again it is not clear why commercial assistance is needed other than with lawn and gardening matters where Ms Annesley is undertaking those tasks as part of her duties as the plaintiff's partner and mother of the children and as was primarily the case before the accident. While paragraph 5.1.6 of her report says that the relationship with Ms Annesley was strained, and the plaintiff gave oral evidence that on occasions they had an off and on relationship, the plaintiff very much gave the impression that Ms Annesley was highly supportive in relation to him and the household. Again, the statement that the plaintiff confirmed that he was responsible for 26 hours of domestic, gardening and pool maintenance tasks prior to the accident is not consistent with the plaintiff's oral evidence. Again, the statement in paragraph 9.1.1 that at the time of the accident the plaintiff shared custody of his three children with Ms Annesley is directly inconsistent with the plaintiff's and Ms Annesley's oral evidence.

Report of Dr Spira, neurologist

Part of Exhibit A was a report of Dr Paul Spira, neurologist. Dr Spira was retained to provide a report by the defendant's solicitors. The report dated 19 April 2018 followed an assessment on 11 April 2018.
After setting out the plaintiff's history, particularly the history soon after the accident, and after undertaking an analysis of the treatment of Dr Lunz and Dr Hannan as reported by the plaintiff, Dr Spira asked the plaintiff to give a clear description of his ongoing problems referable to the accident. These problems as reported and set out by Dr Spira are consistent with the plaintiff's oral evidence and include persistent background right ankle pain present irrespective of what he is doing and calf spasm which has the effect of inverting the ankle. The spasms can last anywhere from five minutes to an hour. The plaintiff also stated that his dystonia now extended all the way up the right lower limb as far as the buttock and lower back and that this had been evolving over recent years. The plaintiff stated that his complaints referable to the dystonia appeared to be accentuating with the passage of time. Dr Spira expressed his opinion as follows: "Mr Bushby sustained a right ankle injury in the motorcycle accident of 4 November 2010. There appears to have been either dislocation or subluxation of the ankle, which self-reduced. Subsequent MR scans revealed some internal derangement of the joint and supporting ligaments consistent with the trauma sustained. Mr Bushby's outcome is, however, surprising and I believe that the dystonia relates primarily to abnormal utilisation of the limb at the time of the most marked pain and the failure to re-establish normal utilisation thereafter. … The role of psychological factors in focal post-traumatic dystonia is a source of [a] great deal of controversy in medicine with some regarding it to be a psychological reaction to injury and others attributing the problem to abnormal central processing of peripheral pain impulses. … The features of complex regional pain syndrome are indeed subtle and Mr Bushby does not demonstrate usual hyperalgesia, hyperaesthesia or the level of trophic changes usually seen with CRPS despite its chronicity. It is difficult to see what further measures can be offered to Mr Bushby in order to alleviate his symptoms".
Dr Spira stated that although rare, dystonia was a recognised consequence with peripheral limb injuries and its mechanism had not been resolved. He expressed the opinion that the loss of utilisation of the right lower limb has somehow evoked the focal dystonia. He expressed the opinion that the plaintiff was fit for employment, his symptoms had largely stabilised and that there needed to be further attempts at control of his focal dystonia.

Reports of Dr Anthony Smith, Orthopaedic Surgeon

The defendant relied on three reports of Dr Smith, Orthopaedic Surgeon. These reports were from 2015, 2017 and 2019. Following his examination in February 2015, Dr Smith noted the plaintiff's history of playing professional rugby league and a report of a previous ankle sprain on the right side in 2008 which resolved after a few months. Dr Smith expressed the opinion based on the MRI report and the arthroscopy findings of Dr Lunz, that the plaintiff had osteoarthritis of his ankle and mid-tarsal joint and possibly also the sub-talar joint and that the sprained ankle arising from the accident would in his view not represent a significant injury that could cause dystonia. Dr Smith said there was no evidence of the plaintiff having dystonia and that in all probability the cause of the plaintiff's problems was osteoarthritis of the ankle consequent on a previous football injury and that any sprain to the ankle in the accident had long since recovered.
Dr Smith stated that the plaintiff was "resisting examination and manufacturing physical signs" and that he was fit to work and had long recovered from his injury: Exhibit A page 263. As noted above, Dr Teychenne and Dr Couch disagree with this analysis and found the plaintiff to be genuine.
In the later reports of Dr Smith, Dr Smith expressed the view that there was no evidence of chronic regional pain syndrome and that the accident merely aggravated pre-existing arthritis of the ankle probably dating from the plaintiff's football years. He expressed the opinion that his complaints were not reasonable and that he did not have any real disability. The 2019 report stated that the plaintiff had "quite a bizarre presentation with his foot being inverted and that there was no organic condition which could produce the pattern of abnormality demonstrated". Despite the reports of Dr Dalton and Dr Spira which followed briefs from the defendant's solicitors, Dr Smith did not change his view that the plaintiff was manufacturing clinical signs and grossly exaggerating his condition and that there was no dystonia.
It should be noted that Dr Smith's views seem to be inconsistent with a clear majority of specialist medical practitioners including the views of Dr Burns, the Review Panel, Dr Spira, Dr Dalton, Dr Couch and Dr Teychenne. Having regard to the detailed analysis in the reports indicated and the particularly sophisticated analyses of Dr Spira and Dr Couch, I reject the views of Dr Smith as being inconsistent with the clear weight of evidence. In particular, the plaintiff presented in court as a genuine and truthful witness who did not appear to be exaggerating in relation to his condition.

Reports of Dr Selwyn Smith, psychiatrist

The defendant relied on two reports of Dr Selwyn Smith, psychiatrist, from 2015 and 2018.
In his first report dated 9 September 2015 following an examination of the plaintiff on 2 September 2015, Dr Smith noted that the plaintiff presented as a pleasant man who displayed no overt anxiety, agitation, hyperactivity or combativeness and was cooperative and attentive. He stated that the plaintiff did not report being persistently depressed, despairing, irritable or anxious. He noted that the plaintiff did not display a depressed, blunted or flat effect. After reviewing numerous medical reports obtained by the plaintiff and the defendant as well as treating reports, Dr Smith expressed the opinion that Mr Bushby revealed symptoms consistent with a somatic symptom disorder or chronic pain disorder. He stated that the plaintiff described being excessively focused on his pain and the seriousness of his symptoms. He did not find evidence to support a diagnosis of major depressive disorder or persistent depressive disorder. No other evidence of a formal psychiatric disorder was noted. The view was expressed that the plaintiff was fit to undertake his employment in general and with no restrictions.
In his second report dated 28 May 2018, Dr Selwyn Smith noted that the plaintiff presented in a similar manner as in his first examination. In his opinion, the plaintiff's dominant presentation was that of chronic pain which established the diagnostic criteria for a somatic symptom disorder or chronic pain disorder. The plaintiff in his view, displayed disproportionate and persistent thoughts about the seriousness of his symptoms.
Dr Selwyn Smith commented on the opinion expressed by Dr Glen Smith, psychiatrist, in his report of 29 November 2017 and disagreed with it. In particular, he disagreed that the plaintiff had a mild persistent depressive disorder. Dr Selwyn Smith stated that a persistent depressive disorder was a consolidation of chronic major depressive disorder and dysthymic disorder and that the symptoms necessary were absent with the plaintiff, including a depressed mood throughout the day, poor appetite or overeating, low self-esteem, poor concentration or difficulty making decisions and feelings of hopelessness. Dr Selwyn Smith was of the opinion that the plaintiff did not satisfy the requirements and they were not consistent with the plaintiff's history of a lack of impairments in the relationship with his family or in his work abilities.

Reports of Dr McGill, rheumatologist

The plaintiff relied on three reports of Dr Neil McGill, rheumatologist, made in the period 2014-2018.
In his first report dated 4 December 2014, Dr McGill in his history noted that the plaintiff told him that he had previously experienced a problem with the right ankle about one year prior to the November 2010 accident when he had stood on a minor crack and felt a jolt in the ankle. The plaintiff's recollection was that he had no time off work and required no treatment. The plaintiff said he had not experienced any injury of the right ankle during his rugby league career. In other reports the plaintiff referred to sprains of his right ankle during his rugby league career and that on occasions he had rolled his right ankle. Dr McGill noted that the plaintiff had received Botox injections in several locations in the right foot, ankle and leg in the week prior to seeing him and that prior to the injections, the plaintiff had experienced spasms in the right lower limb. The right lower limb had also "locked up" twice since the injections. The plaintiff reported discomfort and tension in the right low back between the episodes of muscle spasm.
On examination, Dr McGill noted marked weakness in the right lower limb, particularly of the muscles of the leg. Ankle inversion and eversion were described as being weak on the right side and able to be overcome with the doctor's hand. The plaintiff also demonstrated weakness of the proximal muscle groups in the right lower limb including knee extension, knee flexion, hip flexion, hip extension and hip abduction.
Dr McGill noted that the appearance of the plaintiff's limb was normal and symmetrical other than mild swelling of the right ankle. He noted that active movements of the right ankle were substantially restricted.
Dr McGill expressed the opinion that the plaintiff's episode of right ankle pain in 2008 when at work was reported to be severe at the time but would appear to have settled promptly. Dr McGill noted that his examination was complicated by the recent Botox injections. He expressed the opinion that the plaintiff's level of symptoms reported was not proportional to the objective findings although there was some restriction of passive movement of the right ankle. He expressed the view that the plaintiff was currently fit to perform his normal work duties. Dr McGill also was of the view that the plaintiff's current pattern of symptom reporting remained related to the motorbike accident but that non-physical factors were playing a major role. Dr McGill stated that although the plaintiff reported that his symptoms have continued to deteriorate, the objective findings have not and he was of the view that the injuries had stabilised. Having regard to his examination, he was of the view that the plaintiff did not have a complex regional pain syndrome.
In his second report dated 22 June 2017, Dr McGill noted that the plaintiff stated he felt he was struggling at work and remained concerned that he may lose his job. The plaintiff said that his symptoms fluctuated markedly and if his leg went into spasm, he needed to lie down for up to two hours. He said his limp varied and when he had episodes of spasm the plaintiff had pain mainly around the right ankle and in the right leg below the knee. The plaintiff said that his right foot curled into flexion including the toes at times.
Dr McGill noted that when the plaintiff was walking away from him he had a barely discernible limp but on formal examination he had a marked limp. He noted that the plaintiff's right leg was normal and symmetrical in appearance. Dr McGill stated that the MRI taken soon after the accident showed no support for the ankle dislocating and then spontaneously relocating. In his view on examination, the plaintiff did not have evidence of a complex regional pain syndrome. He was of the view that the variability in the plaintiff's gait at times depending on observation strongly suggested embellishment but the doctor conceded that even when the plaintiff was not aware of observation, there was a slight limp. He was of the view that there remained a discrepancy between the plaintiff's reported symptoms and behaviour particularly the lack of muscle wasting and his ability to continue working normal duties with overtime.
In his third report dated 15 June 2018, Dr McGill noted that the lack of consistency in the plaintiff as documented by other doctors and in his examination made it inappropriate to use the worst range of movement when the plaintiff demonstrated intermittent restriction. In his view the assessment of permanent impairment was difficult because of the variability demonstrated.

Reports of Dr Dalton, rehabilitation specialist

The defendant relied on a number of reports of Dr Seamus Dalton, rehabilitation specialist.
In his first report dated 29 June 2015 after an examination on 20 May 2015, Dr Dalton noted in his history the 2008 injury to the right ankle, the plaintiff walking with a pronounced limp and that the plaintiff complained that his right leg still went into spasm at least once a day, typically with an inversion spasm of the ankle which can come on without warning. The tear in the plaintiff's calf muscle in late 2014 was also noted. On examination, Dr Dalton recorded that palpation of the right ankle revealed mild pain but the ankle was not particularly irritable to examination although there was some tenderness.
Dr Dalton questioned whether the plaintiff's presentation to Dr Hannan in 2011 was a true dystonia or peroneal spasm which was often seen following peripheral injury. He noted that Dr Hannan had diagnosed eversion dystonia and then inversion dystonia. Dr Dalton expressed the opinion that the plaintiff did not present with objective clinical features of chronic regional pain syndrome type 1. He noted mild disuse atrophy of the right thigh and right calf. Dr Dalton said that whilst the diagnosis of focal dystonia could be difficult and is often a matter of opinion, in the plaintiff's case he appears to have developed abnormal muscle activation patterns and initially perineal and then invertor spasm which has been diagnosed as dystonia following a peripheral injury. Dr Dalton said the possibility of a non-organic cause should be considered although the plaintiff did not present with overt pain or illness behaviour.
Dr Dalton expressed the opinion that it was more likely that the plaintiff suffered a lateral ligament inversion strain with a symptomatic aggravation of pre-existing changes noted on an MRI. The view was expressed that it was unlikely that the plaintiff would benefit from further Botox injections, physiotherapy or other "passive modalities": Exhibit A page 333. He agreed that having regard to the plaintiff's increasing use of analgesics, a review by the pain clinic would be appropriate management. He expressed the view that the plaintiff was fit for fulltime work with some restrictions in relation to prolonged weight-bearing with manual handling. The opinion was expressed that having regard to the plaintiff's ability to remain at work full-time and manage most of his preinjury duties, the plaintiff did not require any assistance with domestic and household tasks other than the fact that he was quite symptomatic at the end of the day and needed to rest. He was of the view that from a physical standpoint the plaintiff was capable of managing normal domestic and household duties, particularly at the weekends. He agreed that focal dystonia would appear to be the most reasonable organic explanation for the plaintiff's reported symptoms and aspects of his clinical presentation, although a non-organic element could not be excluded.
In his report dated 1 September 2017 after an examination on 8 June 2017, Dr Dalton noted that the plaintiff felt he was worse and he had daily spasms lasting between three minutes and three hours usually at night time following the removal of the Baclofen pump. On examination, the active range of motion of the right ankle was essentially unchanged. Overall, Dr Dalton was of the view there was less guarding and less peroneal spasm than had been evident on the last examination.
Nothing was found on the recent review or clinical presentation to cause Dr Dalton to change his opinion regarding the diagnosis. Dr Dalton remained of the view that there was an absence of chronic regional pain syndrome type 1. He noted during the assessment that the plaintiff's foot and toes went into a position of plantar flexion and inversion intermittently in keeping with dystonia but at other times there was visible active dorsiflexion of the toes and foot.
Dr Dalton was of the view that it was questionable whether the plaintiff would respond to spinal cord stimulation but it would not be unreasonable to consider a trial if other management strategies were ineffective. The view was expressed that he was fit for full-time work. He did not alter his views about the need for domestic and household assistance. This was particularly the case as the dystonia was intermittent and unpredictable. The inversion spasm was noted as being "variable" and it was therefore a matter of self-pacing and taking rest breaks when necessary rather than obtaining formal assistance. The only reason that gratuitous assistance may be needed according to Dr Dalton is because of tiredness and fatigue towards the end of the day and the presence of ongoing pain and dystonia. The view was expressed that it was not unreasonable that the plaintiff should receive gratuitous assistance of one hour a week for heavy housework as well as one hour of assistance a fortnight for lawn mowing, gardening and home maintenance duties. He remained of the view that focal dystonia was the most appropriate and reasonable organic explanation for the plaintiff's reported symptoms and clinical presentation.
In his third report dated 18 June 2018, Dr Dalton expressed the view that the most appropriate means of assessing impairment in a patient with dystonia of the lower limb was by reference to the presence of unilateral muscle atrophy, neurological impairment or gait derangement rather than a limitation in range of motion. It was noted that at the majority of times the plaintiff had normal active range of motion of the right ankle. A flexion contracture of the right ankle was excluded, as this was a permanent impairment.
In his report dated 19 July 2019, Dr Dalton noted that the plaintiff said that his spasms affecting his right foot and ankle were much the same. He noted the plaintiff's ankle remained inverted whilst seated even though it was not in spasm. He said there were no clinical signs of chronic regional pain syndrome, muscle wasting or dystrophy and the neurological examination was normal. A number of inconsistencies upon assessment were noted. Dr Dalton disagreed with Dr Teychenne's conclusions and agreed with the opinion of the MAS Review Panel in relation to the diagnosis of chronic regional pain syndrome type 1. Dr Dalton was of the view that there are a number of non-organic signs and inconsistencies evident despite the reported episodes of inversion spasm affecting the plaintiff's right foot and ankle. Dr Dalton stood by his previous diagnosis. He also was of the same view that other passive therapies such as physiotherapy were unlikely to modify the plaintiff's current complaints. He remained of his view that the plaintiff did not require assistance with personal care, domestic or household assistance but some allowance as indicated in his third report was supported for heavy household tasks and lawn mowing.

Reports of occupational therapists retained by the defendant

The defendant relied on a number of reports from Mr Peter Williamson and Ms Yvonne Varela, occupational therapists, following assessments in 2015, 2018 and 2019. The conclusions and recommendations in these reports were considerably different to those of the occupational therapist retained on behalf of the plaintiff, Ms Cogger. In the end, counsel for the plaintiff did not rely on the hours recommended by Ms Cogger in her reports which were starkly inconsistent with the oral evidence from Ms Annesley.
The first report of Mr Williamson and Ms Varela dated 29 February 2016 followed an assessment on 8 October 2015. At the time of the first assessment, the plaintiff was living at his house in Moana Street, Woy Woy. The plaintiff was observed to walk with an antalgic gait but without any walking aids while walking around his home. At the time of the first assessment, the plaintiff reported that he had spasms of the right lower limb occurring on average once a day and that they lasted from five minutes to two hours, with them lasting longer when he is at work. When these occurred, he described shooting pains travelling up his entire right limb from his toes to his hip. The plaintiff also complained of constant pain in his right ankle. Having regard to the plaintiff's difficulties in standing from observation, the provision of a shower chair from the age of 70 was supported. In paragraph 6.6 of the report, the plaintiff is recorded as saying that he had made equal contribution to everything in the household prior to the accident and had not participated in any domestic tasks since the accident. This is consistent with the evidence of Ms Annesley given at the trial but is inconsistent with the evidence of the plaintiff who said that his partner did the majority of inside work. In particular, the report has him performing his own ironing which he was at least equivocal about in his oral evidence.
Gratuitous assistance for domestic tasks was supported for a period of 8 to 12 weeks after the accident while the plaintiff returned to his employment and attended physiotherapy. Ongoing assistance with heavy domestic work from the date of the accident up to the date of assessment was also supported including after his right ankle surgery in July 2013. Support for lawn mowing activities was also supported into the future if the plaintiff's right lower limb symptoms were determined to be a direct consequence of the accident. This was also the case with car washing. The view was expressed that the plaintiff could have provided supervision in relation to his children without further assistance. The occupational therapist retained on behalf of the defendant regarded Ms Cogger's recommendations as excessive: paragraph 6.6.14. The view was taken that Mr Bushby would have been able to return to making a contribution to domestic duties after an eight to 12 week period of recovery from the accident.
In paragraph 8, recommendations for care are given for various periods which are all less than six hours except for a period of eight weeks after the initial accident and for a period of six weeks after the July 2013 ankle surgery. The reimbursement of receipted lawn mowing costs was also supported by Mr Williamson. Future domestic assistance was supported for one hour 45 minutes per week including lawn mowing for 30 minutes a week and car washing for 15 minutes a week: paragraph 8.4.
In the second report dated 23 August 2016 following an assessment on 8 October 2015, the amount of past gratuitous assistance was slightly increased for the period of eight weeks after the accident and six weeks after the July 2013 surgery to seven hours and 25 minutes per week. For the other periods, the amount was less than two hours per week. Receipted lawn mowing costs were supported. In relation to future domestic assistance, the same recommendations of one hour 45 minutes per week with 30 minutes for lawn mowing and 15 minutes for car washing were supported.
In a third report dated 20 May 2018, Mr Williamson after reviewing considerable additional medical reports in evidence, did not alter his opinion.
A final report was provided by Mr Williamson dated 11 September 2019 after an assessment on 15 August 2019. In paragraph 6.6 of the report, Mr Bushby is recorded as making an equal contribution to everything in the household prior to the accident and with his partner Ms Annesley doing all domestic tasks after the accident. Again, this is different to the evidence given by the plaintiff. It was also noted that the plaintiff was able to prepare meals for himself, wash dishes and strip his single bed when he worked at the factory (Exhibit A page 432). See also paragraph 7 of the report at Exhibit A page 440. Mr Williamson noted that as at the date of the report, the plaintiff described working long hours and had moved into the factory where he was employed, living there six days per week and only travelling home to Point Claire one to two days per week. The period for domestic assistance both for eight weeks after the accident and for six weeks after the July 2013 surgery remained the same at seven hours 25 minutes per week. Similarly, the recommendation for future domestic assistance at one hour 45 minutes per week with 30 minutes for lawn mowing and 15 minutes for car washing was supported. In relation to equipment, a kitchen stool was also supported as well is a shower stool from the age of 70. In essence and in substance, Mr Williamson's recommendations remained the same.

Financial evidence

There was agreement between the parties in relation to the plaintiff's income. A schedule was prepared which became Exhibit E in the proceedings. That schedule provides that the plaintiff's income was as follows. Year ending Gross Income Net weekly income 1 2006 $56,047.00 $807.15 2 2007 $93,202.00 $1,264.26 3 2008 $99,606.00 $1,369.09 4 2009 $111,917.00 $1,528.29 5 2010 $92,779.00 $1,320.79 6 2011 $128,981.00 $1,757.17 7 2012 $133,135.00 $1,783.15 8 2013 $136,102.00 $1,829.94 9 2014 $134,086.00 $1,794.93 10 2015 No figures No figures 11 2016 $193,604.00 $2,481.98 12 2017 $197,425.00 $2,526.98 13 2018 $225,059.00 $2,802.40 (Medicare levy not deducted)

Submissions of the parties

Counsel for the plaintiff prepared written submissions dated 25 October 2019 and made oral submissions. The submissions, in general summary, were as follows: 1. The question of due search and enquiry is not in dispute; 2. Contributory negligence has been agreed; 3. The plaintiff remains employed at Allied Packaging Pty Ltd where he was employed at the time of the accident. He holds the position of foreman; 4. The plaintiff's leg spasms were increasing in frequency and duration and extended up his leg to his hip: written submissions paragraph 15. They could last up to 2 hours and when they occurred, the plaintiff, if at work, had to stop work until the spasm passed: written submissions paragraphs 15 and 19 and 21. This caused him to take longer to complete his work. In oral submissions, it was submitted that the plaintiff's evidence as to the increasing frequency, duration and severity of the leg spasms should be accepted; 5. Dr Anthony Smith's reports were inconsistent with the other medical reports and evidence and his opinions should be rejected: written submissions paragraph 27; 6. On the medical evidence, the court should find that the plaintiff has sustained as a result of his injuries in the accident an inversion dystonia and a complex regional pain syndrome which are ongoing and substantially impact upon the plaintiff's abilities, both in relation to his family and work duties: written submissions paragraph 61; 7. The plaintiff stays at work for long hours because of his condition to complete his work; 8. In substance, the plaintiff's evidence should be accepted as he was a convincing and honest witness; 9. The plaintiff's condition will result in the plaintiff sustaining an early retirement, most likely by age 60 with a loss of income commencing in the next 1-2 years: written submissions paragraph 66; 10. Future economic loss should be assessed on the basis that without the accident the plaintiff would have worked to aged 70. The figure to be used for assessment purposes is $225,059 gross and $2,802.40 net. It should be accepted that the business is likely to be sold in the next 1-2 years. Overall, the plaintiff's future prognosis is poor. The plaintiff should be compensated for future loss of earning capacity on the basis that he will retire early due to his condition 10 years prior to when he otherwise would have retired. The total loss under this head is $772,159.31 including superannuation: written submissions paragraphs 67-88; 11. Past economic loss is agreed including the Fox v Wood component at $16,655.47: written submissions paragraph 89. No additional claim was made for further time lost for attending medical appointments: see Exhibit G; 12. A substantial allowance should be made for past and future domestic assistance generally accepting Ms Annesley's evidence as to the additional hours of attendant care services completed by her. An allowance should be made for past and future lawn mowing as the plaintiff cannot mow the lawns as he used to prior to the accident. An allowance should be made for additional child care duties provided by Ms Annesley which the plaintiff previously provided under s 15B of the Civil Liability Act 2002: written submissions paragraphs 90-111; 13. Submissions were made about future out of pocket expenses and recommended equipment: written submissions paragraph 113; 14. A total of $1,572,015.61 should be awarded to the plaintiff subject to contributory negligence.
The defendant also made detailed submissions including relying on written submissions dated 12 November 2019. The submissions, in general summary, were as follows: 1. The defendant's primary submission was that the reports of Dr A Smith should be accepted where he expresses the opinion that the effects of the accident had resolved by early the following year after the accident and ongoing problems ought be seen as a product of pre-existing osteoarthritis; 2. In the alternative, damages have to be assessed on the basis of a causal link between the accident and the plaintiff's ongoing problems; 3. Past out of pocket expenses and past economic loss have been agreed; 4. The evidence does not establish that as a result of his injury, the plaintiff has had to work more hours to complete his normal work load or that the plaintiff will suffer a diminution in earning capacity to age 60 and thereafter 10 years loss of income due to early retirement; 5. The plaintiff's income has increased significantly since his injury - this correlates to the amount of work done not the hours worked. The income in Exhibit E strongly suggests that the plaintiff has recently been paid a salary rather than an hourly rate due to the high income; 6. The suggestion that the plaintiff was working longer hours to perform the same volume of work does not reflect the evidence of the plaintiff; 7. The plaintiff has become increasingly skilled and experienced in tasks falling within the managerial sphere particularly over the last couple of years; 8. The work of Allied Packaging was increasing; 9. The longer day is due to the increasing workload not the plaintiff's injury; 10. The plaintiff's spasm condition has an element of variability with some spasms of short duration. It was described in oral submissions as not being a significant injury in the light of the medical evidence. This is supported by the lack of current treatment which the plaintiff is receiving; 11. The plaintiff's current restrictions on the evidence are reasonably modest. In oral evidence, they were described as involving a "nuisance component" which did not make the plaintiff a less productive employee. Emphasis was placed on the reports of Dr Bodel where no wasting in the thigh or calf was noted on examination. It was submitted that the court has had the benefit of a considerable period of time to see the trajectory of the plaintiff's limitations; 12. There is no evidence to justify a conclusion that the plaintiff will need to retire early; 13. The plaintiff's complaints of low back pain are unrelated to the accident; 14. The general consensus in the medical evidence is that the plaintiff's problems will be long term; 15. The plaintiff's actual time off work, apart from absences due to the litigation, is modest: Exhibits G and 1. There is no reason why that will change in the future. Since the accident, the plaintiff has demonstrated significant work capacity. It is unrealistic to expect the plaintiff to continue working seven days per week. Once the business is sold, the risk of the plaintiff losing his job is not high as he is practically indispensable; 16. The plaintiff's likely retirement will be 67 not 70 as claimed by the plaintiff. On the plaintiff's current work history his future economic loss will be minimal. His current level of wages, based on 7 days per week work, is not a realistic measure of his long-term earnings but for the injury; 17. A weekly amount of $1,500 should be used not over $2,800. It would be reasonable to value the plaintiff's loss of earning capacity by way of a buffer in the order of $100,000; 18. The claim for domestic assistance should be rejected. The plaintiff's evidence of his pre-injury contribution to domestic assistance should be preferred to that of Ms Annesley. Given the plaintiff's workload, the hours in the day do not accommodate the claim for domestic assistance and gratuitous assistance to dependants being asserted. The plaintiff improved considerably after a few months. Even with the spasms, the plaintiff's injuries do not prevent him contributing to domestic duties. Any fatigue is due to his long hours of work. The plaintiff's lack of contribution after the accident is due to Ms Annesley choosing herself to do all the tasks; 19. The claim under s 15B of the CLA is limited to the three biological children not the nieces. The plaintiff has simply not had time to provide any meaningful domestic services to the children. His life whilst at Woy Woy gave him little time to assist with the children. The claim under s 15B is not established by the evidence; 20. The occupational therapists reports of Mr Williamson should be preferred to those of Ms Cogger as to hours of recommended domestic assistance. In general terms, a limited claim for the lawn mowing services is not opposed. However, there is a question whether the plaintiff could have even completed lawn mowing but for the accident, having regard to his recent work commitments. Otherwise, it is submitted there should be no claim for domestic assistance allowed on the basis that the plaintiff's need for domestic services has not on the evidence overcome the statutory thresholds. Future lawn mowing should be allowed at $60 per month to age 75 from a period of two years into the future; 21. The amount of $275,194.77 should be allowed as damages.

Factual findings

In the light of the evidence and the submissions made by the parties, I make the following factual findings: 1. The plaintiff, Mr Bushby, was born in May 1978. As at November 2010, he was living in a house in Daceyville in Sydney with his long-term partner, Ms Hannah Annesley, their three children and a number of Mr Bushby's younger siblings. The Daceyville house was the home of Mr Bushby's family. 2. As at November 2010, the plaintiff's partner Ms Annesley was a child care worker and was on maternity leave. The third child of the plaintiff and Ms Annesley was only several months old as at November 2010. 3. The plaintiff had a background of being a proficient sportsman having played first grade rugby league for the South Sydney Rugby League Club. He was fit, had only stopped playing rugby league a year or two before November 2010 and had good health. I will consider the suggestion of prior medical conditions further below in the medical findings. 4. Mr Bushby has only had one fulltime job in his life after ceasing as a professional rugby league player. He works for a company called Allied Packaging Pty Ltd which makes cardboard packaging components and at all relevant times had few competitors in Australia, but more recently has faced strong overseas competition. 5. The plaintiff had advanced steadily within Allied Packaging from a junior machine operator to a machine operator to a leading hand and at the time of the accident was the foreman reporting to the owner, Mr David Phillips. Mr Phillips was somewhat vague as to when the plaintiff had become foreman but I prefer the plaintiff's evidence that he was the foreman as at November 2010. The plaintiff appeared to have a good recollection and was a fairly accurate historian. 6. The plaintiff's role at Allied Packaging involved supervising several machine operators and operating a manufacturing machine himself. In order for the cardboard manufacturing machines to operate, it was necessary for rolls of cardboard weighing about 350kg to be loaded into the machines on a regular basis. This was done with the use of a forklift and then with the rolls being manually placed into the machine. The plaintiff did this often by himself. 7. The usual hours of work at Allied Packaging as at November 2010 and following were 6am to 4pm Monday to Thursday. However, it was usual for the plaintiff to do overtime of 17 hours a week on a Friday and a Saturday. Accordingly, Sunday was the plaintiff's only free day from his work commitments at the time of the accident. The plaintiff had a heavy responsibility in managing the workers and the various orders at the company and this has continued with increasing intensity to the present day. 8. The plaintiff was paid a high wage for his efforts and a schedule of income, as referred to above, became Exhibit E in the proceedings. In the 2010 financial year the plaintiff earned $92,779 gross and this increased gradually in the subsequent years despite the plaintiff's injury in the accident. The plaintiff now generally works seven days a week and in the 2018 financial year earned $225,059 gross. The plaintiff's tax return for the year ending 2019 was not available. The 2018 income suggests that the plaintiff may now be paid a salary as opposed to being paid for hours worked although there was no direct evidence on this issue. 9. As at November 2010, Allied Packaging's business was based at Botany in four large sheds. It moved to new premises at Revesby in June 2018. There it is contained in one large shed. The plaintiff gave evidence, which I accept, that Mr Phillips is his only superior. Mr Phillips is the owner. I accept the plaintiff's evidence that over recent years, the number of orders to Allied Packaging has increased considerably, Mr Bushby's responsibility has increased, he has assumed a greater role in managing and juggling orders, particularly urgent orders and his hours of work have also increased. This is reflected in the substantial increase in his salary from the financial year ending 30 June 2014 to the later financial years recorded in Exhibit E. In essence, the amount of overtime Mr Bushby has completed has increased substantially over that period to his benefit. 10. As at November 2010, Mr Bushby completed all outside duties at the Daceyville residence including washing the car, gardening and lawn mowing: T23.1. I accept his evidence on this point which was confirmed by his partner Ms Annesley. 11. There was a difference in the evidence as to who undertook the various domestic duties in the house at the time of the accident. The plaintiff said that whilst he helped, his partner Ms Annesley did the majority of the domestic duties such as cleaning and cooking inside their house. Ms Annesley said that the plaintiff shared 50/50 in all the domestic duties in the house. For reasons which I have already referred to, I prefer the evidence of the plaintiff on this issue. I accept the defendant's submissions on this point. In my view, it is consistent with the likely division of responsibilities, having regard to the fact that Ms Annesley only worked part-time when she did work, was on maternity leave as at November 2010 and the plaintiff worked six days per week because of his heavy overtime: see T60.31; T78.15. This is relevant to a consideration of the plaintiff's claim for a damages component relating to gratuitous and commercial domestic assistance. 12. On 4 November 2010, the plaintiff, whilst driving home from work, was involved in a motor vehicle accident on Swinbourne Street in Botany in Sydney. A breach of duty of care has been conceded by the defendant in relation to that accident. The plaintiff was riding on his motorcycle behind a vehicle which had to brake suddenly when an unidentified vehicle negligently entered into Swinbourne Street from Kurnell Street. The plaintiff came off his motorcycle whilst braking and the motorcycle fell heavily on his right foot. I will consider the nature and course of the plaintiff's injuries in my medical findings below. It has been agreed that there is to be a deduction for contributory negligence. The court has not been informed of this percentage. 13. As at the date of the accident, the plaintiff also assisted with his children by being involved in looking after them, in assisting with their homework, in assisting his elder daughter who has autism and in the sporting activities of his son. I accept that after his injuries, whilst the plaintiff continued to have interaction with his children and particularly continued to assist (but to a lesser degree) his older daughter who has autism, the plaintiff ceased his sporting involvement and had a more passive supervisory involvement with his children: T53.46; T54.41; T55.1; T79.16; T121.12; T124.1-.40. I find this was partly due to the accident and partly due to his long hours of work and lengthy commuting from 1 December 2014. 14. At some stage after the accident, an issue arose as to what should be done with the plaintiff's two nieces who were the children of his sister and who were removed from their parents because of alleged domestic violence issues. Apparently the children were placed with a foster carer in Sutherland. At least once and on some occasions twice per week after finishing his day's work, the plaintiff after his injury drove to Sutherland, collected his two nieces and took them for access visits to their parents. In due course, to his credit, the plaintiff applied for and was granted custody of the two nieces. This occurred in 2013. After that time, the plaintiff had five children in his family to look after with Ms Annesley. 15. The plaintiff was taken to Prince of Wales Hospital Emergency Department after the accident and, after x-rays were taken in which no fracture was disclosed, he was discharged home on crutches. He seems to have been referred to a workers compensation doctor Dr Kyriazis who referred him to physiotherapy. The plaintiff attended physiotherapy it appears three times per week between November 2010 and January 2011. The plaintiff first attended Dr Kyriazis on 8 November 2010, four days after the accident. By this time the pain in his ankle had begun to improve and on examination, he had a swollen right ankle with particular tenderness on the lateral side. There was reduced range of motion of the right ankle. Dr Kyriazis' initial diagnosis was of a ligament injury/tear in the right ankle: Exhibit A page 521; Exhibit C. 16. After taking one day off work, the plaintiff returned to work on crutches. Dr Kyriazis placed him in a support boot and he was treated with analgesia and physiotherapy. He was certified for suitable duties with limited walking. Dr Kyriazis saw the plaintiff on a number of occasions in November and December 2010 and in January 2011. On 11 January 2011, the plaintiff informed Dr Kyriazis that his ankle symptoms had mostly improved with only minor discomfort remaining. The physiotherapy had assisted him with strengthening with the aim of restoring his function to normal and he was advised by the physiotherapist that he could resume exercise: Exhibit A page 522. See also T73.1-.36. 17. It was recorded by Dr Sharpe that the plaintiff had said to him that at the time about three months after the accident, there was only a little swelling of the plaintiff's ankle with some minor pain and that the plaintiff's walking was reasonably good: report of Dr David Sharpe, Exhibit A page 480; cf page 523 Exhibit A; Kyriazis referral letters Exhibit A pages 518, 519, 522. I accept that evidence. It is consistent with the plaintiff attempting to jog as advised by his physiotherapist. 18. On about 1 April 2011, Mr Bushby attempted running and there was a substantial re-aggravation of his right ankle pain. The plaintiff began having ankle and leg spasms in his right leg. See Sharpe report Exhibit A page 480; Spira report Exhibit A page 251; Tisch report Exhibit A page 482; Kyriazis referral letters Exhibit A pages 518, 519; Kyriazis report Exhibit A page 522. The plaintiff's medical condition will be considered in detail in the court's medical findings further below. 19. Despite the plaintiff's injuries and the spasms, he continued working fulltime at work with his usual overtime but with some restrictions in his activities following his return to work after his accident. From that date to the present, the plaintiff has had limited time off from work including some time when he had an ankle arthroscopy in July 2013 and further time when he had a Baclofen pump inserted in his stomach to assist with pain relief. Upon obtaining an infection where the Baclofen pump was inserted, the plaintiff had about a week of further time off to have the pump removed and to recover. Other than that, the plaintiff has worked fulltime with overtime and has gradually increased the hours that he has worked over the last few years as reflected in his considerable earnings. 20. At present, the plaintiff generally works nearly seven days a week. This is principally because of the heavy workload at Allied Packaging. However, I accept the plaintiff's evidence that if the plaintiff has leg spasms at work, which I will refer to in more detail below, the plaintiff must stop his work if they are severe, turn a machine off if he is operating one, and wait till the spasm finishes. The spasm often causes the plaintiff to have to lie down including on the factory floor due to the pain. I accept the plaintiff's evidence and the evidence of Mr Phillips that this occurs when the plaintiff has a spasm in his right leg at work. If this occurs, the plaintiff must make up the work that he has not been able to do due to the spasm. The spasms initially were random and could occur without warning at various times and last from anywhere from five minutes to two hours. I accept the plaintiff's evidence that the spasms have been increasing in frequency and severity and often occur daily. At times, the plaintiff's entire right leg up to the hip is affected. This is consistent with the histories which the plaintiff has provided to a number of the doctors. 21. I accept the evidence of the plaintiff and Ms Annesley that following the accident, the plaintiff has undertaken virtually no domestic duties whether inside or outside of their various houses. I will consider below whether this is due partly to choice or the plaintiff's work commitments or place of living or whether it is due to an inability by the plaintiff to undertake any domestic duties. 22. The plaintiff and his immediate family, upon his parents returning to the family house at Daceyvillle, moved to Ramsgate and then to Kogarah Bay. By December 2014, the plaintiff and Ms Annesley had moved with their three children to Woy Woy on the Central Coast of New South Wales: Exhibit A pages 306 and 365. As to the date, these contemporaneous documents are in my view more reliable than the oral evidence of the plaintiff and Ms Annesley who put the move as in 2015. 23. The reasons for the move to Woy Woy included that the plaintiff was unsure how long he could continue work with his condition, the lifestyle on the Central Coast was cheaper than in Sydney, and Ms Annesley had the support of her grandparents who then lived on the Central Coast. 24. Following the move, the plaintiff's work travelling time considerably increased. The plaintiff got up at about 3:30am, caught the train from Woy Woy at 4am, took the train to Central Station in Sydney and then caught a bus to Botany to the Allied Packaging premises. At the end of the day, after a hard day's physical work, he made the journey home arriving home anywhere between 6pm and 7pm. He was very fatigued at the end of the day and had limited time other than to spend some time with the children, have a hot shower, have his dinner and go to bed to get up at 3:30am for the next morning of work. This is relevant to the claim for past domestic assistance. 25. A number of years after the accident, due to difficulties in driving a car, the plaintiff had his car adjusted so he could use the pedals with his left leg. The plaintiff disliked catching public transport because of the risk of having painful spasms. He began driving from the Central Coast. Eventually, because of concerns with his fatigue caused by limited sleep and lengthy hours of work, the plaintiff began to spend some nights during the week in Sydney at the Botany factory premises: T39.7. He had a bed installed in one of the sheds and used the washing and kitchen facilities at the factory. Mr Phillips agreed to this. This reduced the number of times during the week that he returned home to the Central Coast. 26. In more recent times, the plaintiff and his family have moved to Point Clare on the Central Coast. Upon the move to the Revesby premises of Allied Packaging, a demountable was installed within the large factory room. The plaintiff sleeps there. A bathroom was also installed which the plaintiff uses. The current position is that the plaintiff sleeps at the factory premises during the week because of the pressures of his work (including the need to make up some time lost because of his injuries) and only returns home once or twice a week, particularly on a Saturday afternoon. 27. The evidence shows that there has been some tension between the plaintiff and Ms Annesley because of the significant effect of the plaintiff's injuries. There are references in a number of the documents to there being separations. However, in the evidence of the plaintiff and Ms Annesley this was not developed in detail any further: cf T78.10. Ms Annesley, from her evidence, and to her credit, appears to have given the plaintiff maximum support with his injuries. She has taken a major role in looking after the children, particularly the older daughter with autism. The unhappy position has been reached where the plaintiff spends most of his time in Sydney working and only returns to the Central Coast once or twice per week, particularly to have dinner with the family on a Saturday evening. 28. Mr Phillips, the owner of the business, who spoke of the plaintiff in glowing terms, proposes in an ideal world to sell the business in the medium term in one to two years. As indicated above, the business is doing very well with a constant and increasing volume of orders. It has minimal local competition. It is clear from the evidence of Mr Phillips and of the plaintiff, that the plaintiff is a highly important and valuable employee who has given loyal service to Allied Packaging and has an excellent knowledge of the manufacturing process and the machinery and good communication and supervision skills with the workers. Mr Phillips made clear that it was difficult to train workers up. The value he places on the plaintiff is shown by the plaintiff's increased pay and the steps which he has taken to ensure that the plaintiff has accommodation and washing facilities at the two factories. Whilst the plaintiff has undertaken some managerial roles (including meeting with other manufacturers), in substance he is a motivated and hard-working hands-on foreman. There is no evidence he has attended to more sophisticated managerial tasks. 29. The likely future of Allied Packaging remains unclear. It is also unclear whether Mr Phillips will be able to sell the business in one to two years' time and whether the business will continue either with him or a new owner. It is unclear whether any new owner would retain the plaintiff having regard to his injuries, particularly as they appear to be worsening, even with a glowing reference from Mr Phillips. It is unclear how easily the plaintiff could obtain alternative employment. These matters will be considered further in relation to the plaintiff's claim for loss of future earning capacity.

Medical findings

I will now turn to consider my medical findings in the matter.

The period from 4 November 2010 to about 1 April 2011

I have already dealt above in my factual findings with the plaintiff's position from the day of the accident until he aggravated his ankle injury on, it appears from Dr Kyriazis' report, 1 April 2011. It was this aggravation which apparently contributed to the onset of the plaintiff's spasms in the right leg which I will shortly consider in more detail. No other cause appears from the evidence. In summary, whilst the plaintiff still had some pain and restrictions and minor swelling in his ankle as at the end of March 2011, he had improved substantially since the accident. I prefer the histories in the medical reports and referral letters to the plaintiff's and Ms Annesley's recollections on this matter having regard to the time which has passed. The plaintiff himself conceded some improvement in this period: T73.1-.36. The plaintiff was a good historian and there is no reason to doubt the histories.

The plaintiff's physical injuries arising from the accident

I have referred above to the voluminous amount of medical evidence before the court in relation to the plaintiff's physical injuries arising from the accident. There are numerous views expressed in the medical evidence in relation to the nature and extent of the plaintiff's physical injuries.
In relation to the plaintiff's preinjury position, the evidence establishes that the plaintiff had some backache prior to the accident a number of years before, he had ankle sprains during his rugby league football career and he complained of a sprain to his ankle while at work a year or so before the accident. These complaints are referred to in a number of the reports of the defendant's doctors including the reports of Dr McGill dated 4 December 2014 (Exhibit A page 307) and Dr Dalton of 29 June 2015 (Exhibit A page 328). These problems did not seem to cause the plaintiff any ongoing difficulties. Dr Dalton notes that no follow-up visits were recorded following a visit to the plaintiff's former general practitioner Dr Affleck on 5 December 2008 concerning an injury to his right ankle. The plaintiff gave evidence that he had no relevant problems with his right ankle or back prior to the accident. I accept his evidence on this issue. This is consistent with him continuing his football career which apparently continued until about one year prior to the accident: Exhibit C.
Relevant to a consideration of the plaintiff's injuries and pain and restrictions arising from the accident is the evidence of the plaintiff, Ms Annesley and Mr Phillips. I found the plaintiff to be a truthful witness who gave the impression of understating his condition and being stoic. His evidence about the effect of his spasms on him both at home and at work was confirmed by the evidence of Ms Annesley who had seen him while in spasm and also Mr Phillips who had seen him lying on the floor at work. I find that the plaintiff has not consciously exaggerated or embellished his symptoms or pain in any way. I accept his evidence that his spasms have been increasing in frequency and duration but they are intermittent. However, they have not prevented the plaintiff from being a hard worker and a valuable employee.
Another significant matter is the position of those doctors who have seen the plaintiff's leg in serious spasm. From their reports, they consist of at least Dr Hannan, the plaintiff's treating rehabilitation specialist and apparently an expert in dystonia who saw the plaintiff's foot locked into severe spasm (Exhibit A page 494), the MAS Assessor Dr Burns (Exhibit A page 188) and the doctor who gave medicolegal reports in relation to the plaintiff, Dr Michael Couch, occupational medicine specialist (Exhibit A pages 59, 65 and 67). Having seen the plaintiff's leg in spasm, each of these doctors diagnosed dystonia of the right leg.
I have indicated above that I reject the opinion of Dr Anthony Smith that the plaintiff is manufacturing his condition, any injury has recovered and the plaintiff's complaints relate to pre-existing conditions including arthritis in his right foot. This is an opinion which is inconsistent with my assessment of the plaintiff's veracity, inconsistent with those doctors who have seen the leg in spasm and overwhelmingly inconsistent with the vast preponderance of medical opinion of doctors retained to provide opinions by both the solicitors for the plaintiff and the solicitors for the defendant. In coming to that conclusion, I take into account the comments of Dr McGill in his reports that there was some inconsistency in presentation by the plaintiff in relation to the severity of his gait. I accordingly reject the submission made in paragraphs 2-3 of the defendant's written submissions dated 12 November 2019.
There appear to be three aspects of the plaintiff's claimed injury: 1. The injury to the ankle; 2. The claimed right inversion dystonia; and 3. Chronic regional pain syndrome type 1.
I will consider each of these in turn.
In relation to the plaintiff's ankle, in my view the evidence supports the diagnosis of Dr Couch in his reports that the plaintiff has an inversion injury of the right ankle and hindfoot with a self-reducing dislocation of the hindfoot, with lateral ligament tearing and scarring, a talar dome osteochondral lesion, synovitis in the subtalar and ankle and some tendinitis. In my view, this diagnosis is supported by the following: 1. The Ambulance Service notes and the plaintiff's various histories of his right ankle having dislocated and then relocated upon the motorcycle being removed from it; 2. The various opinions of Dr Couch; 3. The reports of Dr Lunz, foot and ankle surgeon, dated 29 April 2011 and 27 May 2011; 4. The MRI report of Dr Browne dated 11 April 2011; 5. The MRI report of Dr Linklater of 20 October 2011; 6. The 22 May 2013 MRI report of Dr Noakes; 7. The reports of Dr Bodel dated 5 January 2018 and 2 June 2019; 8. The report of Assessor Dr Burns dated 25 November 2015 (Exhibit A page 179) and the report of Assessor Dr Burns of 12 June 2018 (Exhibit A page 193); 9. The report of the Assessment Review Panel dated 12 June 2018 (Exhibit A page 247); 10. The report of Dr Spira dated 19 April 2018 (Exhibit A page 254); 11. The report of Dr Dalton dated 29 June 2015 (Exhibit A page 332).
There is some indication in the reports of Dr McGill and Dr Dalton that the MRI undertaken showed no support for the suggestion of dislocation with spontaneous relocation of the ankle (Exhibit A page 320. See also Dr Dalton at Exhibit A page 331). However, the balance of the evidence supports the initial dislocation and relocation of the ankle and it is consistent with the plaintiff's evidence and the Ambulance Report. Overall, I prefer those doctors who are of the view that this occurred, particularly as the early treating specialists accepted it.
The next issue is whether the plaintiff initially had eversion dystonia and then this extended to intermittent inversion dystonia. Again, in my view, this diagnosis is established on the medical evidence: 1. It is supported by the reports of Dr Teychenne, neurologist, who concluded that the plaintiff probably sustained damage to the right superficial peroneal nerve which resulted in overriding dystonia being an inversion dystonia of the right foot; 2. It is consistent with the reports of Dr Bodel (Exhibit A pages 26-27 and at Exhibit A page 37); 3. It is consistent with the diagnoses of Dr Couch in his various reports; 4. It is consistent with the leg spasms actually seen by Dr Hannan, Dr Burns and Dr Couch; 5. It is consistent with the reports of Assessor Dr Burns. For example, in his 25 November 2015 reasons Dr Burns stated: "Subsequently he has been diagnosed as having initially an eversion dystonia, which has now resolved and currently an intermittent inversion dystonia": Exhibit A page 179 and Exhibit A page 193; 6. It is consistent with the findings of the MAS Review Panel: Exhibit A page 247, although the Panel found no permanent restriction of motion in the nature of a permanent contracture; 7. It is consistent with the report of Dr Spira in points 2, 4 and 6 of the report: Exhibit A page 254-255; 8. It is not disputed in the reports of Dr McGill relied upon by the defendant; 9. It is consistent with the reports of Dr Dalton who expressed the opinion that focal dystonia would be the most appropriate and reasonable organic explanation of the plaintiff's reported symptoms and clinical presentation: Exhibit A pages 344, 347 and 352; 10. It is consistent with the analysis of the plaintiff's treating specialists Dr Lunz and Dr Hannan: Lunz reports dated 24 October 2011, 13 February 2012, 11 June 2012 and 30 May 2013 and various reports of Dr Hannan dated 14 June 2011, 7 February 2012, 19 March 2012 and 15 May 2012.
There is an issue whether the plaintiff has discrete injuries to his back and right hip arising from the accident as opposed to referred pain and restrictions from the inversion dystonia causing leg spasm. In my view, the analysis of the Review Panel at Exhibit A page 247 should be accepted that there are no discrete injuries apart from the dystonia spasms affecting the areas. There are no other reports from specialists which provide convincing views to the contrary in relation to the Review Panel's conclusions on this issue.
I accept on the balance of the medical evidence and having accepted the plaintiff's evidence, that while the plaintiff has an intermittent inversion dystonia, the frequency of the spasms has increased and they can last longer and, accordingly, I accept that the condition has worsened. To the extent the defendant submits to the contrary, I reject it. The plaintiff was an impressive and understated witness. I accept his evidence that his spasms have become more frequent and longer lasting in more recent times. See also Dr Teychenne Exhibit A page 12; Dr Bodel Exhibit A page 35; Dr Couch Exhibit A pages 104 and 109 ("the dystonia…has become more severe and persistent"); Dr Spira Exhibit A page 253 and page 255 (point 5); cf Dr Dalton at Exhibit A pages 350 and 353. The defendant refers to the lack of muscle wasting mentioned in Dr Bodel's reports. In my view, this is consistent with the intermittent nature of the condition and the plaintiff still undertaking physical work over long hours.
The next issue is whether the plaintiff currently has a chronic regional pain syndrome type 1. A number of doctors suggest that he does: the various reports of Dr Tay from the Prince of Wales Hospital pain clinic, the reports of Dr Couch and the first two assessments of Assessor Dr Burns. However, the last report of Dr Tay was dated 6 November 2017. Although the evidence was that the plaintiff continued to see Dr Tay, there was no report over the last approximately two years confirming the currency of the diagnosis.
While great respect must be given to Dr Tay as he is from the Prince of Wales Hospital pain clinic and is a pain specialist, there is substantial recent specialist opinion suggesting that the plaintiff no longer has a chronic regional pain syndrome type 1. For example, the MAS Review Panel found none of the features present to suggest the syndrome: see Exhibit A page 247. Dr Bodel in his second report held that while there were symptoms on his initial examination (cf his comment at Exhibit A page 24 "There are therefore no clinical signs of complex regional pain syndrome"), he saw the signs as "less convincing" on his later examination in May 2019: Exhibit A page 34. Dr Couch noted altered features of the syndrome (Exhibit A page 104) but diagnosed its presence. Dr Spira was of the view that the plaintiff did not demonstrate the usual features or changes seen with the syndrome: Exhibit A page 254. Dr McGill found no evidence of the syndrome: Exhibit A page 320. Dr Dalton took a similar view on the basis of his examination: Exhibit A page 352. In the absence of a more recent detailed report from Dr Tay, the balance of the evidence and diagnoses is against the finding of a complex regional pain syndrome type 1 and I am not satisfied in the light of the different analyses that the plaintiff has presently that syndrome.
Based on all the medical evidence and accepting the plaintiff as a witness of truth and taking into account the evidence of Ms Annesley on this issue, I accept that the plaintiff continues to have serious pain in his ankle arising from the ankle injuries. I also accept that when he has the intermittent inversion dystonia that this can affect the whole of his right leg through his knee, upper leg and hip and cause the plaintiff very significant pain. The plaintiff copes with his various medical conditions by taking regular medication including strong medication at night to enable him to sleep and by adopting a stoic attitude to his condition assisted by some rest. I accept that the dystonia condition is intermittent but the spasms have been increasing and worsening to some degree.

The plaintiff's psychiatric position

There is a dispute on the psychiatric evidence as to the plaintiff's current psychiatric condition. The plaintiff impressed the court, as indicated above, as being a stoic, level headed, dedicated man both to his work and to his family. He is able to continue his work and earn the high wages which he earns to support his family with the support of Ms Annesley.
The question is whether in the light of the evidence and the plaintiff's presentation, he has a psychiatric condition and, if so, what condition. The report of Dr Glen Smith, psychiatrist, dated 29 November 2017 diagnoses the plaintiff with persistent depressive disorder with pure dysthymic syndrome of a mild severity. The justification for the analysis is provided at Exhibit A page 48. MAS Assessor Dr Samson Roberts, psychiatrist, diagnosed chronic adjustment disorder with depressed mood as a consequence of the motor vehicle accident, although he noted that it could reasonably be considered that the plaintiff's lifestyle, excessive working hours and minimal time spent at home with family may contribute to the psychiatric condition.
Dr Selwyn Smith who was retained on behalf of the defendant found somatic symptom disorder or a chronic pain disorder (Exhibit A page 302). Dr Selwyn Smith considered the views of Dr Glen Smith at pages 202-203 of Exhibit A. It is true that the plaintiff has difficulty sleeping, has fatigue and claims on occasion to have poor concentration. However, the other symptoms referred to by Dr Selwyn Smith at the top of page 11 of his report (Exhibit A page 303) did not appear to be present to Dr Smith nor were they reported by the plaintiff. The examination by Dr Selwyn Smith at Exhibit A pages 295 and following is consistent with the plaintiff's presentation in court. The plaintiff appeared to be able to focus and give evidence in an appropriate manner. I accordingly prefer the opinion of Dr Selwyn Smith that the plaintiff does not have a persistent depressive disorder of a mild nature. If I am wrong in that analysis, then it would appear to be quite mild having regard to the plaintiff's extensive role in his work and his capacity to concentrate, supervise, organise and arrange the work to complete orders.
In the end, I find that the plaintiff has a chronic pain disorder as a psychiatric condition as diagnosed by Dr Selwyn Smith.
In the absence of any significant history of injury, I find that all of the above medical conditions which I have concluded the plaintiff has were caused by the motorcycle accident.

Duty and breach of duty of care

A breach of duty of care by the unidentified driver was conceded by the defendant.

Causation

As stated above, I find that the injuries I have found were caused by the accident, that is, but for the accident they would not have occurred. Despite some minor prior medical history as revealed in some of the medical histories, I find that it is not relevant to the plaintiff's current condition. The defendant made no submission to the contrary.

Damages

I will now proceed to consider the question of damages which is complex. As stated above, there is no claim for non-economic loss.

Past out-of-pocket expenses

The parties agreed that if I did not prefer the evidence of Dr Anthony Smith, Orthopaedic Surgeon, over the other medical specialists, that the out-of-pocket expenses were $121,529.30. As stated above, I have not accepted the opinions of Dr Smith. Accordingly, the above past out-of-pocket expenses as agreed should be awarded to the plaintiff.

Future out-of-pocket expenses

In paragraphs 113-117 of his written submissions, counsel for the plaintiff seeks quantified future out-of-pocket expenses relating to the plaintiff. The plaintiff regularly sees Dr Tay at the Prince of Wales Hospital pain clinic who is a pain specialist. The majority of the specialist medical evidence recommends that the plaintiff continues to see a pain specialist: Exhibit A pages 34, 110, 225 and 343. Whilst there is some medical evidence recommending that the plaintiff continue with treatment of Botox every few months for life, this medical evidence is from several years ago and there is no more recent medical evidence supporting that recommendation as a required continuing course of treatment: cf Exhibit A pages 110, 333, and 353. I accordingly find that damages for frequent Botox injections are not warranted.
I also accept that having regard to the plaintiff's chronic pain condition, that the recommendation to attend a pain management programme should be allowed for.
An amount also needs to be allowed for the plaintiff's ongoing pain medication. The plaintiff gave evidence that he was seeing Dr Tay every three months (T47.9), seeing his general practitioner about every six months (T48.7) and that his cost of medications which he had to buy himself was probably about $40 per month "roughly": T48.43.
The defendant submitted in paragraphs 98 to 114 of his written submissions that the general practitioner consultations claimed should be allowed, the attendances on Dr Tay (or similar) should be allowed, the ongoing medication should be allowed but that only a buffer of $7,500 should be allowed for "non-specific treatment items" and alternative treatment modalities. It was also submitted that the medical evidence did not support the claim for the Botox injections: written submissions paragraphs 103-108.
The following amounts should in my view be allowed based on the plaintiff's age of 41 years with a life expectancy of a further 42.60 years with a multiplier of 931: 1. Attendance upon his general practitioner for review once every six months at $75 per consultation. This is also needed for continued referrals - $2,685; 2. Attendance upon Dr Tay (or another similar pain specialist doctor) once every three months at $64.20 per consultation - $4,597; 3. Ongoing medication costs at $40 per month - $8,593; 4. I accept the submissions of the defendant that, on the medical evidence, no amount should be allowed for the possibility of the need for future Botox injections in the plaintiff's ankle/leg. I agree with the defendant that the evidence on this is old and the plaintiff has not had recent injections. The plaintiff's claimed amount which is substantial is not established on the evidence; 5. Attendance at a pain management course as recommended by Ms Cogger - $9,400. Despite the defendant opposing this, the chronic nature of the plaintiff's pain as revealed in the medical evidence justifies the recommendation. See also the plaintiff's desire for counselling services which appears reasonable: report of Dr Selwyn Smith at Exhibit A page 291. These would likely be provided as part of a pain management programme.
The total awarded for future out-of-pocket expenses is therefore $25,275.
I accept that the replacement of the recliner chair used by the plaintiff for his leg condition is warranted as the plaintiff gave evidence that he uses this extensively and it gives him relief for his pain. The other equipment recommended by Ms Cogger would also appear to be justified. Mr Bushby said he had difficulties bending. On the basis of the estimated cost of Ms Cogger using a remaining life expectancy of 42.60 years, I allow $6,955. However, this should be reduced by a quarter because of non-injury related use of the chair and the possibility that the plaintiff may have needed this equipment in later life anyway. I accordingly allow the amount of $5,216 for future equipment needs as recommended by Ms Cogger in her reports. This should be added to the $25,275 in the previous paragraph giving a total of $30,491. I prefer Ms Cogger's opinion on this issue as it appears to be justified in the light of the plaintiff's continuing condition and his evidence.

Past economic loss and loss of earning capacity together with the Fox v Wood component

The damages to be awarded for past economic loss and loss of earning capacity and for the Fox v Wood component have been agreed by the parties at $16,655.47. Accordingly, this is the amount which should be awarded to the plaintiff for this head of damages.

Past commercial assistance

The plaintiff gave evidence that he has paid for lawn mowing to be undertaken at his various homes because of his injuries in the accident. I accept that having regard to the plaintiff's injuries, he was not able to undertake the lawn mowing activities at his houses. These sums should be awarded to the plaintiff. They total the following amounts on the plaintiff's evidence which I accept on this issue: 1. Daceyville - monthly at say $40 per month: T23.1; 2. Ramsgate - monthly at $40 per month: T30.2; 3. Kogarah Bay - Ms Annesley completed the lawns which took 10-15 minutes monthly: T35; 4. Woy Woy - $40 per month; 5. Pt Clare - $60 per month since about June 2018: T41.
The accident was in November 2010. I allow about 9 months for Kogarah Bay. The remainder totals 83 months times $40 ($3,320) plus 17 months times $60 ($1,020) equalling $4,340 in total. I reject the suggestion by the defendant that the plaintiff's work commitments in recent years would have prevented him undertaking the lawn mowing but for the accident. The lawn mowing paid for was only monthly and I consider the plaintiff could easily have undertaken this but for the accident, particularly in the warmer months.

Past and future domestic assistance

Counsel for the plaintiff considers the question of domestic assistance in paragraphs 90-111 of his outline of written submissions. The conclusions in relation to domestic assistance and a claim in relation to the childcare previously provided by the plaintiff and now provided by his partner Ms Annesley, are set out in paragraphs 108-111 of the written submissions. The defendant submits that no amount should be allowed for past or future domestic or childcare assistance: written submissions paragraphs 62-97.
Reference is made to the occupational therapists' reports relied on by the parties in paragraphs 102-105 of the plaintiff's written submissions and paragraphs 85-91 of the defendant's written submissions. In essence, while counsel for the plaintiff criticises the occupational therapy reports of the expert retained on behalf of the defendant, Mr Williamson, he also does not adopt the recommendations of Ms Cogger, the occupational therapist retained on behalf of the plaintiff. It appears that this is essentially because the bases upon which Ms Cogger prepared her reports are inconsistent with the oral evidence given in the proceedings by the plaintiff and Ms Annesley. Ms Cogger in her reports expresses the opinion that the plaintiff has required 24 hours of attendant care services per week in relation to domestic duties: Exhibit A pages 124, 145 and 166. An allowance of 24 hours per week into the future is also recommended by Ms Cogger at Exhibit A page 166. Mr Williamson in his reports recommends significantly less domestic assistance and expresses the opinion that such assistance was needed for a limited period only: Exhibit A pages 380 and 407.
In my view, many of the opinions of Ms Cogger in her reports on this issue must be rejected. In her first report, in her executive summary, she stated that prior to the accident, the plaintiff shared "custody" of the children with his "ex-partner". This is inconsistent with the oral evidence. At the time of the accident, the plaintiff said he lived with his partner and their three children together: see Exhibit A page 114. I accept that evidence. It is also asserted that since the motor vehicle accident Mr Bushby has relied on gratuitous assistance "from his ex-partner". Although they have had difficulties and have had some separations, it does not appear that Ms Annesley has ever been for any extensive period (if at all) Mr Bushby's "ex-partner": see Exhibit 1 page 115 and paragraph 2.2 page 115. The assertion in paragraph 4.1 of Ms Cogger's report that Mr Bushby was living with his three children at Daceyville while Ms Annesley as his ex-partner was living nearby in Mascot does not appear to be established or find any support in the evidence. The assertion that the plaintiff estimated his children to live with him 50% of the time (paragraph 4.1) also appears to have no support in the oral evidence. In paragraph 5.5.5 of her report, Ms Cogger asserts that the plaintiff relied on assistance from his sister. This receives no support in the oral evidence from the plaintiff or Ms Annesley.
In paragraph 7.1, Ms Cogger has the plaintiff estimating that pre-injury he was responsible for 24 hours per week of housework. How this could have been possible when the plaintiff was working six days a week with overtime is difficult to determine: see T60.31 and T78.15. This is particularly the case where Ms Annesley undertook the majority of inside domestic duties. I reject Ms Cogger's opinion on this issue. Accordingly, Ms Cogger's recommendation of gratuitous domestic assistance for approximately 24 hours per week for past domestic assistance cannot be sustained. Counsel for the plaintiff did not attempt to do so in his written submissions: see Exhibit A pages 124, 145 and 166. However, Ms Cogger's report is correct in its conclusion that Mr Bushby is not currently contributing to any domestic tasks and he relies on Ms Annesley for assistance.
As stated, there is some criticism of the reports of Mr Williamson in the submissions of counsel for the plaintiff: paragraph 105. The first report notes that the assessment was conducted by Mr Williamson but that the recommendations were "developed" by Ms Varela, occupational therapist: Exhibit A page 355. What this means is unclear but it seems to be merely a peer expert review. The past domestic assistance recommendations in the two reports of Mr Williamson do not, in my view, reflect the medical difficulties which the plaintiff had or currently has and the continuing worsening of his medical condition on the evidence. As stated above, I generally accept the evidence of the plaintiff and Ms Annesley but I prefer the plaintiff's evidence where it is inconsistent with that of Ms Annesley as to domestic assistance issues.
Both experts support the provision of lawn mowing services into the future. I have already dealt with past expenses relating to the lawn mowing services. Counsel for the plaintiff seeks compensation for future lawn mowing at an allowance of $60 per month to age 80, being 39 years totalling $12,593. The defendant only supports it from age 75 commencing two years in the future. I would allow $60 per week commencing now but only to age 75 when I think the plaintiff would likely seek third party assistance with the lawn mowing irrespective of the accident. Accordingly, I allow an amount for lawn mowing at $60 per month to age 75 being 34 years totalling $11,992.71 ($13.85 weekly times multiplier 865.9). I see no reason why the amount should be deferred for two years. I consider the plaintiff would still have had the time to complete a monthly lawn mowing but for the accident even with his longer working hours.
I refer to my factual findings above in subparagraphs (10)-(11), and (21)-(26) of paragraph 225. In my view, domestic assistance in the past must be considered for different periods. As the plaintiff was injured in a motor vehicle accident, his claim is governed for domestic assistance and childcare by MACA and, insofar as it applies, the Civil Liability Act 2002 (CLA). Section 141B of MACA governs the plaintiff's claim for gratuitous attendant care services. Under s 141B of MACA, there is a threshold level of services that must be required for "attendant care services" which are provided gratuitously by another person. Under s 141B(3), no compensation is to be awarded for attendant care services as a head of damages unless the attendant care services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months.
The plaintiff also makes a claim for the loss of a capacity through his injuries to provide services to third parties, being his dependent children. Under the present applicable legislative scheme, a provision for loss of capacity to provide services to third parties is provided for in s 15B of the CLA. Section 15B does apply to motor vehicle accidents by operation of the CLA: see s 3B(2) and White v Benjamin [2015] NSWCA 75 at [1]-[8] and [69]-[71]. Section 15B also requires such services to third parties being provided for at least six hours per week for at least six consecutive months. I will first consider past attendant care services as governed by s 141B of MACA. As indicated, in my view the matter should be looked at from the point of view of different periods.
The first period is from the date of the accident on 4 November 2010 until the commencement of the plaintiff's spasms on 1 April 2011. The evidence establishes that although he had continuing pain, the plaintiff's condition improved over this period: T25.27; T26.52; T29.3, T72.44 and T73.1-.36 as well as the reports of Dr Sharpe and Dr Kyriazis. I am not satisfied on the evidence that attendant care services were provided by Ms Annesley to the plaintiff for a period of at least six hours per week for at least six months from the date of the accident. This period is less than six months. The plaintiff and Ms Annesley did not appear to have a clear recollection in relation to the plaintiff's incapacities and the domestic services provided, particularly at the end of this period: see T73.1-.36. I find on the evidence that whilst the plaintiff still had some pain and minor swelling in his ankle as at the end of March 2011, he had improved substantially since the accident. I refer to paragraph 225(16) and (17) above. In my view, if the plaintiff still had significant disabilities requiring extensive attendant care services from Ms Annesley, he would not have attempted to jog as advised by his physiotherapist on 1 April 2011. He had also been able to walk without his boot by this time. In summary, I am not satisfied on the evidence that in relation to this first period that the requirement of intensity is satisfied under s 141B for the end of the period.
The second period relates to 1 April 2011 when the plaintiff's spasms commenced until 30 November 2014. The evidence suggests that the plaintiff moved to the Central Coast in December 2014 and I have accordingly ended the second period on 30 November 2014. This period is a period of 192 weeks. I take into account that Ms Annesley undertook some mowing in this period which I have found to be for about nine months. In the period I have indicated, I have found that the plaintiff continued working fulltime at work with his usual over time but with some restrictions: see paragraph 225(19) above. Prior to the plaintiff's move to the Central Coast, his travel time was substantially less.
I have found above that I prefer the plaintiff's recollection that Ms Annesley did most of the inside tasks prior to the accident to Ms Annesley's evidence that the plaintiff shared 50/50 in all domestic duties in the house: T53.10, T58.15 cf T23.50. However, Ms Annesley estimated that immediately after the accident she completed eight to 10 hours doing domestic tasks that the plaintiff had previously completed, with it more likely being 10 hours with the lawn mowing and the gardens which she attempted herself: T123.2-.26. These hours were said to have continued thereafter: T123.46. I make some allowance for Ms Annesley's different recollections which I have not accepted, that she and the plaintiff shared the domestic duties prior to the accident equally. I also make some allowance for the fact that for the nine month period Ms Annesley attended to the gardens and the mowing.
In my view, taking into account these matters, the lower range put forward by Ms Annesley of eight hours per week should be accepted for qualifying attendant care services for the second period. I take into account that, in my view, despite his injuries, the plaintiff could undertake some very basic domestic duties in this period. This is established by his ability to work long hours in a demanding job, as the defendant submits. However, in this period the plaintiff is reported as having increased symptoms and ongoing restrictions. I accept that evidence. He would have arrived home early soon after he finished work prior to the accident. The parties should calculate the compensation for the attendant care services provided for the second period for 192 weeks at eight hours at the appropriate hourly rates.
The third period which I consider is the period from 1 December 2014 to 31 March 2018. The plaintiff moved to the Central Coast in December 2014. This, accordingly, substantially increased his commuting time and therefore allowed substantially less time for the plaintiff to assist with domestic duties even if he had not been injured. If the plaintiff had not been injured, Ms Annesley as his partner would have had to provide more hours of domestic assistance due to the plaintiff's shorter period at home or the jobs would not have been done (there is no evidence cleaning services would have been utilised). I find that even if the plaintiff had not been injured he would have got home between 6.30-7.00pm, showered, had dinner, spent a relatively short period of time with his children or relaxing, provided some limited domestic assistance and had to go to sleep to allow him to get up very early at 3.30am the next morning to travel to work. A short period each night and Sundays would have been available. In the period, the plaintiff stayed at the factory prior to the move on some occasions: T39.7. Doing the best I can on the evidence, I have reduced the number of hours which I have allowed for the third period to 6 hours per week for attendant care services provided as a result of the injuries in the accident for a period of 172 weeks. This reflects the plaintiff's condition worsening to some degree: see Exhibit A pages 23, 84, 85, 86, 90; 315, 338 cf 339. The parties should calculate the amount at the appropriate hourly rates.
The fourth period I consider is the period from 1 April 2018 to November 2019. This is a period of about 84 weeks. In this period, the plaintiff has remained living at the Central Coast but has spent a greater period staying overnight at the factory because of his condition and the further work which must be completed to satisfy additional orders. Whilst I accept to some extent the submission in paragraph 106 of the plaintiff's written submissions, that by the time the plaintiff gets home he is exhausted due to having to work long hours, in my view this is due both to his injuries (when he has to stop the machine and lie down because of the spasms) and his need to catch up with the work he would otherwise be doing within normal working hours, but also due to his commuting, overtime which he would otherwise be doing anyway and the need to work much longer hours due to the further orders of which the plaintiff and Mr Phillips gave evidence. This reduces even further the time that the plaintiff would have been able to provide to contribute to domestic services even if he had not been injured. In my view, I cannot be satisfied on the evidence that but for the accident caused injuries, the plaintiff would have performed at least 6 hours per week of domestic duties which Ms Annesley now undertakes in this period. The plaintiff's overtime is very extensive and seems to be significantly due to extra work and orders. I reject the claim for domestic assistance in the fourth period.
I now turn to consider future attendant care services. I have already considered an amount for commercial lawn mowing for the future. Counsel for the plaintiff in his written submissions submits that for the next 19 years an allowance of eight hours per week for general domestic assistance should be allowed at $31.03 per hour being the statutory gratuitous amount totalling $160,412.68 and thereafter, from age 60 based on the fact that the plaintiff is likely to be unemployed from that age, no further allowance is claimed for that component.
First, I accept the submission that the relevant period to consider should be 19 years until the plaintiff is 60. I prefer the plaintiff's submission on this point which reflects the plaintiff's currently worsening condition. It is unclear what continuing work pattern the plaintiff will adopt in this period. It is also unclear whether there will be some improvement in the plaintiff's condition at some stage (particularly if he works less than 7 days per week) which would assist him to undertake more basic domestic duties. The plaintiff's inability to assist at present is partly the result of his injuries and his long work hours and commuting and partly due to Ms Annesley's active role.
In my view, an allowance in the future for likely attendant care services provided by Ms Annesley which the plaintiff would have provided but for the accident should be made at six hours per week for a closed period of 5 years deferred for three years. This recognises the plaintiff's likely extensive work hours for a period of three years until the business is likely sold (allowing another year for delays in achieving a sale) when the period of six hours or more in intensity is not established on the evidence as in the third period, followed by a closed period when the plaintiff is working probably only 6 days per week (or even less) and achieving some level of easing in his symptoms. I leave the parties to calculate the correct sum. Although the plaintiff submits the amount should be $31.03 per hour it is unclear how this is arrived at.
I now turn to consider the claim under s 15B of the Civil Liability Act for the provision by Ms Annesley of child care services which the plaintiff previously provided to his children. Section 15B of the Civil Liability Act provides as follows: "15B Damages for loss of capacity to provide domestic services (1) Definitions In this section: assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously): (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a)) - any care that is provided to the dependant by a person other than the claimant where: (i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and (ii) the care includes the provision of accommodation to the dependant. dependants, in relation to a claimant, means: (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises: (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2) (c) (ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may: (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2) (c) (i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2) (c) (ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court: (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that): (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that): (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that): (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide. (11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account: (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages."
In my view, the definition of "dependants" in s 15B(1) would not include the plaintiff's two nieces as they were not wholly or partly dependent on the plaintiff at the time that the liability in respect of which the claim is made arises. The plaintiff took on the role of custody of the two nieces well after the accident. I accept the defendant's submission on this issue. Accordingly, I look at the assistance which the plaintiff provided to his own three children who were his "dependants" at the time of the accident.
The evidence establishes that the plaintiff provided help with his children's care, sporting activities and homework before the accident and, in particular, provided help to his older daughter who has autism: T53.21-55.4; T78.27-79.21; T121.12; T123.48-T124. This would appear to be "assisted care" within s 15B(1).
Counsel for the plaintiff refers to and relies upon the reports of Ms Cogger where she recommends gratuitous childcare assistance of 14 hours per week from 8 April 2015 into the future and at 23 hours per week from 4 November 2010 to 7 April 2015: Exhibit A pages 127, 147 and 168. In my view, Ms Cogger's recommendations of 23 hours per week for gratuitous childcare assistance from the day of the accident to 7 April 2015 appear to be based on assumptions which are not supported by the evidence, including assistance being provided by the plaintiff's sister and Ms Annesley providing assistance to children in the plaintiff's sole care with her as his "ex-partner". It is simply not consistent with the evidence to state that the plaintiff "shared custody of his three children with his ex-partner". There is also no evidence in the oral evidence that the plaintiff would care for his children during the week and on the weekends with there being a flexible arrangement: Exhibit A page 147 at paragraph 9.1.1. There was no evidence presented to the court other than in Ms Cogger's report to support the estimate that the plaintiff has relied on 14 hours per week (two hours per day) assistance with homework, outside play activities and packing the children's school lunches and bags provided by Ms Annesley. I find that the plaintiff and Ms Annesley lived as a couple with their three children at the time of the accident.
The plaintiff has also voluntarily taken on the custody and supervision of his two nieces. This occurred after the accident and needs to be taken into account as this involved more time.
Ms Annesley gave evidence that their older daughter, [xxx], who suffers from autism, requires additional assistance which Ms Annesley has had to provide instead of the plaintiff after the accident. Ms Annesley estimated the additional hours that she was contributing to deal with the children as a result of the plaintiff's injury at being "perhaps" 20 hours per week: T124.30. I reject this evidence. The plaintiff was working six days a week before the accident. It seems highly unlikely therefore, that he provided anywhere near 20 hours per week child assistance apart from Ms Annesley's own child care role, particularly when Ms Annesley also claims that he provided extensive domestic help, inside and outside the house. I accept that he provided considerable assistance to his daughter [xxx] which Ms Annesley has had largely to provide since his injuries. I accept that the plaintiff also assisted generally with his children including in relation to sporting activities. I also accept that as the plaintiff has suffered from his worsening condition, Ms Annesley has had to undertake more of the child duties although the plaintiff accepted that he could provide general supervision of his children after the accident. I find he is clearly able to do so.
However, the plaintiff has had increased commuting and working time since 1 December 2014 which must be taken into account. The children are also becoming more independent as they get older. Doing the best I can on the sparse evidence on this issue, I would allow six hours per week under s 15B from 1 April 2011 to 30 November 2014 and nothing thereafter. I start at 1 April 2011, for the same reasons as for the claim relating to attendant care services. My award recognises the services Ms Annesley was providing anyway, the children becoming more independent, the extra help the plaintiff was providing [xxx] before the accident, the ability of the plaintiff to provide some general supervision after the accident, the plaintiff's additional commuting time after 30 November 2014 and the plaintiff's further work due to work order increases at Allied Packaging. I am not satisfied in relation to the intensity requirement after 30 November 2014 in the light of my findings as to domestic assistance. The sum allowed should be calculated by the parties at the appropriate hourly rate under s 15B. The sum allowed takes into account that Mr Bushby would have been able to provide some supervision for his younger children as required while his older children would have been more independent: see paragraph 6.6.13 at Exhibit A page 377 of Mr Williamson's report and paragraph 6.6.13 at Exhibit A page 405 of Mr Williamson's second report. Although Mr Williamson refers to Dr Dalton's opinion that Mr Bushby did not require assistance with childcare tasks, it is clear that Mr Bushby could not have assisted with sporting activities or having regard to his increased fatigue from his medical condition, with the same degree of home work and other assistance to the children including [xxx] which he had provided prior to the accident.
Counsel for the plaintiff in paragraph 111 of his submissions seeks a continuing claim for the next five years at seven hours per week at $31.03 per hour equalling $50,284.11 under s 15B of the CLA. This is on the basis that the plaintiff's youngest child is nine: paragraph 9.1.2 of Ms Cogger's last report: Exhibit A page 167. Ms Cogger only recommends the assistance for three years.
I do not allow this claim for the same reasons. Over this period the plaintiff will likely continue his long hours and some limited commuting. He will have little time to provide the services claimed to the level satisfying the statutory intensity requirement.

Future loss of earning capacity

In paragraphs 67-88 of his written submissions, counsel for the plaintiff submits that the plaintiff has suffered a substantial loss of future earning capacity which should be compensated for by making a substantial buffer award for the period to age 60 and then a total loss of earning capacity for the period from age 60 to age 70. In the alternative, a substantial buffer should be allowed for the whole period to which superannuation should again also be added.
The defendant agrees that a buffer should be awarded but submits that only a buffer of $100,000 should be allowed. The essential basis for this submission is that since the accident, "the plaintiff has demonstrated a significant work capacity, has increased his managerial skills and responsibilities, all the time accommodating the variable effects of his injury": written submissions paragraph 47. Weight is placed on the plaintiff working longer hours since the injury and him substantially increasing his earnings: written submissions paragraph 8. It is said this is mainly due to the plaintiff working longer hours to deal with the increasing orders to the business. It is also said that the plaintiff's skills would suggest he will be in demand with employers.
In general terms, I prefer the substance of the plaintiff's submissions on this issue but with a future retiring age of 67 not 70.
In considering this issue, I take into account: 1. That employment at Allied Packaging has really been the plaintiff's only career and that he is essentially a one employer person; 2. The plaintiff has no formal skills or qualifications and has essentially been primarily a blue-collar worker. While he is an impressive man as far as his work ethic goes, he has limited managerial experience; 3. The evidence of the plaintiff's employer, Mr Phillips, that he hopes to sell the company in the next one to two years if possible. Mr Phillips also noted that in his view the plaintiff worked anywhere between 80% and 100% of his efficiency due to his injuries; 4. That the plaintiff's dystonia is regular and to some degree the symptoms are worsening. As stated above, I accept the plaintiff's evidence on this issue. I also accept the plaintiff's evidence that his regular spasms require him to make up his lost working hours. It seems and I infer from the level of the plaintiff's pay that he is still paid for the lost hours resulting from his injuries; 5. That it is uncertain whether the plaintiff would be able to continue his position either with the purchaser of the business or with another similar company having regard to his medical condition. A new employer may be accommodating but may also not want an injured worker with regular spasms remaining on the factory floor; 6. The extensive medical evidence that the plaintiff should be on restricted duties and not working the extensive hours which he is currently working; 7. The plaintiff's increased working hours, increased pay and him taking on more management tasks (albeit to a limited degree).
Damages for the loss of future earning capacity under MACA are governed by s 126 of MACA which provides as follows: "126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]: "[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded. [80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). [81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future"."
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, McColl JA stated the following at [6]-[9]: [6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows: 84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act , when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present. [7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing). [8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer. [9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.
See also Basten JA at [27]-[30] and Macfarlan JA at paragraph [66]-[67].
Accordingly, compensation for loss of future earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss". When one looks to the future in relation to loss of earning capacity, there is a degree of uncertainty and damages are difficult to assess. However, that does not necessarily result in non-recovery of damages. The task of assessing damages for lost earning capacity is "necessarily impressionistic". A buffer may be appropriate where there has been a clear injury to the plaintiff which has unquestionably reduced earning capacity but the calculation of the amount is difficult. Such a buffer may be substantial in an appropriate case.
In my view, the plaintiff's most likely future circumstances but for the injury are as follows: 1. The plaintiff would have remained working for Allied Packaging as the foreman as long as possible and if the business was sold, would seek to remain working for the purchaser in the same role. The plaintiff's work ethic and efficiency make it likely that he would be retained by a new employer; 2. If he could not remain working for the purchaser, he would have sought a similar role with another company. He may have experienced some difficulties or delays obtaining a position due to his lack of qualifications and the industry being competitive; 3. Having regard to the high earnings of the plaintiff, it is likely that he would retire at 67 at the latest as he would have significant superannuation to rely on. I choose this date rather than 70 years of age as the plaintiff claims as the plaintiff's work is heavy and involves considerable physical effort which would be more difficult as he gets older. His children would also be adults by this stage and therefore likely independent. I accept the defendant's submission on this issue; 4. It is likely that the plaintiff would have continued working six days per week as he did prior to the accident, but may have worked further overtime for all or part of a seventh day on occasions if the demands on the business for jobs were extensive and there was no alternative. However, the plaintiff is a strong and supportive family man and I think he would have avoided work on Sunday unless it was clearly required and necessary. I consider he works longer hours now partly because of his uncertain working future due to his injuries.
The plaintiff's future working circumstances are quite uncertain. Mr Phillips said that he would try and sell the business in one to two years but of course he may hold it for longer. It may be that he will have difficulty selling it and will take a smaller role in the ongoing business. A purchaser may highly value the plaintiff upon the recommendations of Mr Phillips and retain him despite his current injuries. However, a purchaser also may not want to retain someone who is injured or seek to introduce slowly another replacement foreman.
In the end, the plaintiff's submission supporting a buffer for the period from now until the plaintiff attains the age of 60 years is persuasive and I accept it. In my view, the defendant's submission places too much emphasis on the plaintiff's current working hours and his minimal managerial skills and not enough weight on the plaintiff's worsening spasms and his need to work to make up lost time. I accept the plaintiff's evidence as to each of these matters. In relation to the period from 60 to 70, I am not persuaded that the plaintiff would work beyond 67 years as I have indicated. Accordingly, in my view the damages for loss of earning capacity are to be assessed having regard to these findings.
In paragraph 68 of his written submissions, counsel for the plaintiff submits that the economic loss documents establish in the schedule of income that the plaintiff in 2018 had a gross income of $225,059 which relates to a net weekly income of $2,802.40. It is submitted that subject to a deduction for the Medicare levy, this was the plaintiff's income to be taken into account. However, the plaintiff gave evidence that he was working over six days per week for this amount. But for the accident, it is assumed that the plaintiff would only have worked six days per week unless there was an exceptional requirement to work longer hours in the short term because of particular orders. Also it seems the plaintiff is paid both for his lost working hours and the hours to make them up. I infer this from the plaintiff's current high salary which in my view can only logically be explained on this basis. The annual amount claimed by the plaintiff is less than the maximum amount of earnings that can be claimed as at 1 October 2019 under s 125 of MACA as indexed.
As the plaintiff has five children to support and a partner who works part-time and provides significant domestic assistance, I find that there is a strong incentive for the plaintiff to continue working for as long as possible subject to his injuries. However, in general terms the balance of the evidence is that the plaintiff's prognosis is poor in relation to the ability to continue working at this level in the longer term. I accept the plaintiff's submission in this regard in paragraph 76 of his written submissions. See in particular, the opinions of Dr Couch and Dr Dalton. I find that it is most likely that he will retire from his employment early and by 60 due to his ongoing condition which appears to be worsening with greater frequency and duration of spasms and that his retirement will be 7 years prior to when he would otherwise have retired. It must be recalled that the plaintiff has in effect not worked for a previous employer and has no technical qualifications but has significant practical experience in a fairly limited industry.
As I have indicated above, I find that it is likely that the plaintiff would have retired at aged 67 and not at age 70 as the plaintiff submitted but for the accident. I accept the submission of the plaintiff that on the whole of the evidence it is reasonable to find that the plaintiff would retire at age 60 because of the accident. As I have indicated, I also believe that some reduction should be made to the $2,802 net per week because the plaintiff would likely not have worked more than six days a week but for the accident. The defendant submits that $1,500 should be adopted (written submissions paragraph 61). I would allow $1,900 net per week from age 60 to age 67. This takes into account the plaintiff currently working seven days per week and longer hours on other days to make up lost time due to his injuries. This amounts to $587,860 (1,900 times multiplier 309.4) which should be further reduced by 15% for vicissitudes equalling $499,681.
I accept the submission that having regard to these findings the amount needs to be deferred for a further 19 years ($499,681 times multiplier 0.396) which equals $197,873.67. Superannuation should be added to this amount at 12% making a total amount of $221,618.51.
I then need to consider the period between the present and age 60. I accept and prefer the submission of the plaintiff that he is very likely to suffer ongoing loss in this period and therefore an allowance has to be made (written submissions paragraph 86).
Having regard to all of the evidence, I accept the submission of the plaintiff that the amount to be allowed should be $300,000, having regard to the worsening nature of his spasms and the risk of the plaintiff not obtaining employment due to his injuries once the business he is working in of Allied Packaging is sold which may be in approximately one to two years' time, although there may well be delays. The amount of $300,000 also takes into account the plaintiff's historical high net annual earnings as reflected in Exhibit E. The defendant's figure of $100,000 does not appear realistically to reflect these earnings or the plaintiff's struggle to continue working despite his injuries. Superannuation again at 12% should be added. Accordingly, I would allow the sum sought of $336,000 for the period from the date of assessment until the age of 60. The total amount for the plaintiff for loss of future earning capacity and superannuation is therefore $557,618.51.

Total of damages awarded Non-economic loss Nil Past out-of-pocket expenses $121,529.30 Future out-of-pocket expenses $30,491.00 Past economic loss and loss of earning capacity together with the Fox v Wood component $16,655.47 Past commercial assistance (lawn mowing) $4,340.00 Past domestic assistance to be calculated by the parties Future domestic assistance to be calculated by the parties Past and future childcare assistance to be calculated by the parties Future loss of earning capacity $557,618.51

Contributory negligence

A deduction for contributory negligence has been agreed between the parties. This should be made.
My calculations should be checked by the parties.

Disposition

I make the following orders: 1. Judgment for the plaintiff. 2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. 3. Liberty to the parties to seek a different costs order to (2) above within 14 days. 4. The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence. 5. Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.

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: 05 December 2019

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