Campton v Centennial Newstan Pty Ltd

Plaintiff's Background 7The plaintiff was born on 14 May 1951. 8He attended school to year 10 and completed his School Certificate. 9He obtained a position as a deckhand on a fishing trawler for approximately three months. Subsequent to this he worked as a motorbike assembler for approximately three months. 10The plaintiff then entered employment as an apprentice bricklayer with Sulphide Works at Newcastle for five years, following which he worked as a self-employed bricklayer for approximately eight years. 11In about 1980 he commenced working for the Centennial Mines Group at various locations, namely:

• Wallarah (1980-1982; 1994-2000)
• Mooney Colliery (1982-1994)
• Southlands Colliery (2000-2004)
• Newstan (2004-2006)
• Mandalong Mines, and thereafter, Awaba (2006-date of accident) 12In these positions the plaintiff usually worked between 44 to 60 hours per week, including shift work and overtime. 13In 1995 he became a Mine Deputy, having completed a TAFE course. He remained as such until the date of the subject accident. 14The plaintiff described the role of a Mine Deputy as involving the supervising of underground crew as well as engaging in the work of an underground miner, which work involves a significant amount of physical activity, in particular walking for extended periods of time on uneven ground, and some heavy lifting: Plaintiff's Evidentiary Statement, 5 July 2012, at [13]. 15He is married and has two adult sons. 16His wife, Narelle Campton, worked as a casual school teacher until approximately June 2012.

PART B - PRE-ACCIDENT MEDICAL HISTORY 17The plaintiff's pre-accident medical history was examined at length during cross-examination, as part of the defendant's pursuit of issues concerning causation and damage, and the question of his likely retirement age. The relevance or otherwise of the plaintiff's prior medical and other history on these matters will be considered later in the judgment. 18He had consulted Dr Whittaker in respect of various medical matters over a number of years before the accident. Dr Whittaker, as his qualifications indicate, is a highly qualified medical practitioner in general practice. Having read his reports and observed him over several hours in cross-examination, I was impressed with him in every relevant respect including, in particular, his attention to detail and his evident capacity as a diagnostician and as a treating doctor. His initial diagnosis of the plaintiff's injury, namely a discogenic lesion at L4/5 with nerve root effacement, was entirely in accord with the subsequent opinion of the treating neurosurgeon, Dr Ferch. In summary Dr Whittaker was an impressive witness.

(i) Medical Attendances Pre-2006 19The plaintiff gave evidence of having had various back sprains and twisting incidents described in his evidence as "niggles". However, he said that these had never caused him to take time off work: T 60; T 80. 20In 1982, when he was 21 years of age, he broke his leg and "the muscle never grew back properly": T 94. However, apart from a period off work due to the injury, this did not prevent him working up to the date of the accident on 1 July 2010. 21In 1986 when the plaintiff worked at Mooney Colliery he suffered a back strain, although he could not recall the incident or episode in cross-examination: T 81. 22In 1993 he attended physiotherapy having experienced lumbo-sacral pain and groin pain. Again, the plaintiff could not recall this incident or episode raised in cross-examination: T 81. 23He also suffered a back strain when he was working at Wallarah Colliery in 1994, although, again, the plaintiff said in cross-examination that he was unable recall that fact having occurred: T 81. 24In 2000 the plaintiff's knee swelled up after having given way. Again, he said in cross-examination that he was unable to recall the incident or episode associated with that condition: T 96.

(ii) Medical Attendances in 2006 25In 2006 the plaintiff underwent an x-ray (but to what part of his back is unknown). In this regard he stated "I don't know what it was for but I do remember having an x-ray in 2006": T 82.

(iii) Medical Attendances in 2007 26On 18 April 2007, the plaintiff attended Dr Whittaker after hitting his right elbow and knee, and twisting his lower back and the left side of his neck as he was getting into a cart at work. Dr Whittaker noted tenderness and swelling in the right knee, and advised him to not return to work for three days: Exhibit 42 (Defendant's Court Book, vol 1) at p 5. 27The plaintiff experienced back pain for "a short time" following this incident. The plaintiff attended Dr Millons in respect of this: T 82-85. This accident also resulted in a right ankle injury. The plaintiff continued to have ongoing pain in his right ankle for a year and wore ankle supports: T 91-92. He also stopped playing golf for a couple of months. As a result of this, the plaintiff was on selected duties at work for "a short time": T 93. 28By 23 April 2007, he had returned to work on full duties, but was not lifting: Exhibit 42 at p 6. 29In May 2007, the plaintiff continued to experience pain in his back and knee, and had been limping: Exhibit 42 at p 6. 30On 22 May 2007, Dr Whittaker noted that the plaintiff's right ankle had flared up since returning to normal walking. He referred him for an x-ray for his right ankle. Dr Whittaker also stated that he "has back pain which is affecting his gait - right lower side back": Exhibit 42 at p 6. 31The right ankle x-ray revealed that the plaintiff has a healed fracture of distal tibula and fibula, although discussion with the plaintiff revealed the plaintiff had "no history of fracture known": Exhibit 42 at p 7. 32On 25 May 2007, the plaintiff again attended Dr Whittaker. Dr Whittaker observed that the pain in the right knee and back had improved, "but right ankle has worsened": Exhibit 42 at p 7. It was also noted that the plaintiff had an old fracture in the upper tibia. 33Dr Whittaker arranged for the plaintiff to have a right ankle CT scan in respect of the injury on 20 April 2007. The scan showed "equivocal small undisplaced fracture anterior tibia": Exhibit 42 at p 7. Dr Whittaker subsequently referred the plaintiff to a Dr Young. 34It was noted on 14 June 2007 that the plaintiff continued to have right anterior ankle pain. He reported that on 24 May 2007 a colleague who had been carrying a 60kg ladder dropped it onto his ankle when he was getting onto a work platform. This caused him severe initial pain before settling back to his previous level of pain: Exhibit 42 at p 8. 35A follow up examination on 19 June 2007 led to Dr Young reporting that it would take 3-4 months for the plaintiff's ankle injury to resolve. The plaintiff was off work for one week, before going on light duties the following week. He was required to wear an air-cast until his ankle became more stable. 36It was noted that on 10 July 2007 the plaintiff at times was having problems at work, and would need suitable duties on the surface as he was unable to continue with deputy work in the short term: Exhibit 42 at p 9. 37On 9 August 2007, Dr Whittaker wrote that the plaintiff's ankle had improved greatly with surface and light duties, although he was not yet ready for pre-injury duties. On 14 August 2007, Dr Whittaker recommended that he remain on suitable duties for a further month: Exhibit 42 at p 9. 38The plaintiff returned to full duties on 4 September 2007: Exhibit 42 at p 10. 39In December 2007 the plaintiff had a further injury at work after he slipped on a roller submerged under water when he was walking out of a pit coal mine. The plaintiff's right ankle slid and forced an inversion of the ankle, which caused the ankle to re-sprain. There was also a painful medial aspect of the left knee: Exhibit 42 at p 11.

(iv) Medical Attendances in 2008 40The plaintiff was able to continue performing his usual duties, although it was recorded on 8 January 2008 that the left knee continued to have a small amount of medial discomfort and was "painful to walk, no locking, no collapsing": Exhibit 42 at p 12. Dr Whittaker's diagnosis was a mild sprain to the medial crucial ligament. 41The plaintiff's left knee was reviewed on 24 June 2008. Dr Whittaker recorded that it had "never fully resolved", and has been "slowly worsening rather than improving". It was also noted that the plaintiff had slipped the previous night on a shiny slippery floor and twisted his knee: Exhibit 42 at p 13. Dr Whittaker diagnosed the plaintiff as having a mild meniscal tear. 42In June 2008 the plaintiff had a further injury at work. The plaintiff's left foot slipped when he was getting off an "Eimco cove". The plaintiff's right ankle had allegedly given way and he hyper-loaded his left knee. At the time of this injury the plaintiff was also wearing Spats on his legs which caused a loss of sensation: T 232-235. The plaintiff was subsequently treated and operated on by Dr Berton. He was off work for up to two months: T 92-94. In cross-examination the plaintiff said "I had the operation and then my left knee come good": T 95. The plaintiff said that by October 2009 he wasn't having any problems with his knee: "...I was walking on it, I was working, I was doing everything...": T 97. 43In August 2008 the plaintiff experienced numbness and loss of sensation from his left calf muscle down to his left foot as a result of wearing Spats. This occurred on the plaintiff's first day back at work from his last injury. He said in cross-examination that "I took them [Spats] off and it went away": T 238. 44The plaintiff was booked in for an arthroscopy on 6 August 2008. This revealed that he had a tear of the posterior bundle of the anterior crucial ligament, and a 50% chance of progression to instability in 1-2 years: Exhibit 42 at p 15. 45On 19 August 2008, the plaintiff attended both Dr Berton and Dr Whittaker. Dr Whittaker observed that the left knee was continuing to give way. The plaintiff was then off work for one week: Exhibit 42 at p 15. 46On 28 August 2008 the plaintiff attended another doctor at Jewells Medical Centre. There Dr Tzaros, noted that his left knee remained unstable, and that he was on above ground restricted duties: Exhibit 42 at p 15. 47On 3 September 2008 Dr Tzaros found his left knee stability had greatly improved, and that he could return to underground duties, albeit with a 15kg lifting restriction: Exhibit 42 at p 16. 48On 10 December 2008 the plaintiff saw Dr Whittaker, who noted that the plaintiff's meniscus repair was going well, and that his activities were "not affected too much at this stage", other than walking down stairs. Dr Whittaker also noted the plaintiff "has reached a plateau - ankle stability will not improve from this stage except by surgery, but may not be better off". The plaintiff additionally requested clearance to go back to normal duties: Exhibit 42 at p 17.

(v) Medical Attendances in 2009 49Dr Whittaker saw the plaintiff on 10 March 2009. He noted that he was experiencing problems with numbness down left leg medial aspect, medial aspect of foot, and burning sensation of forefoot and toes. Dr Whittaker noted this was permanent, although initially intermittent. On examination, it was observed that the left leg reflexes were normal, however there was reduced vibration sense and light touch in left L4 region and base of forefoot: Exhibit 42 at p 18. The plaintiff was referred to Dr Katekar. It was noted that the plaintiff was wearing tight gaiters around that region of the left leg, although he would try not to wear them for a while and to see if it improved: Exhibit 42 at p 18. The plaintiff could not recall this in cross-examination: T 238-239. 50On 18 June 2009 Dr Whittaker recorded that the plaintiff had been performing pre-injury duties for six months with "no problems": Exhibit 42 at p 19.

PART C - THE ACCIDENT 51The plaintiff was injured on 1 July 2010 while working at Awaba Colliery. 52Before commencing work the Under Manager, Mr Phillips, conducted a pre-shift briefing. 53In the plaintiff's first evidentiary statement, dated 5 July 2012, he gave the following account: "22. At that time I was working in Awaba Colliery. 23. Before commencing that shift the Under Manager, Dave Phillips, presented at pre-shift briefing. All those persons on the shift including myself were present at that briefing. There were some 22 people there, it included Mr Dave Fletcher. 24. At that shift briefing Mr Phillips advised us that there was a change in the road system. He said words to the effect of: 'We won't be entering the normal transport road, we've set up a bypass road to be used and the road is extremely rough so you have to be careful when you are travelling along that road.' 25. He also advised that there had been no maintenance carried out on the road for quite some period of time, when he was advising that it was very rough. 26. The ordinary travelling road was in the process of having its rails removed and accordingly it was necessary to use the bypass road. Ordinarily I drive myself underground but on this occasion I had to go down with the crew to the diesel bay to pick up my own machine which was Eimco 31. 27. Accordingly I had to go down in a PJB No 4 with the rest of my work crew. The driver of that PJB was Mr Dave Fletcher. I was the last one to get in and I was at the back over the left hand rear wheel. When I got in there I had to lean to the left because of the height of the roof of the PJB and when I had my helmet on I couldn't fit under so I had to lean to the left. There was no safety belts available for use. The seat that I was sitting on was made of steel which had on it a 1" or 2.5cm piece of foam which was old and in poor repair and provided virtually no cushioning. 28. Mr Fletcher then drove the PJB down the drift. The roadway of the drift was in good condition; it was concrete. Mr Fletcher drove this section of what I estimate would be the top speed of the PJB; whilst it is difficult to assess the speed because of the darkness, there was enough light. I have driven in PJBs for the whole time that I have worked in the mine and I am aware of how fast they can go. From my experience I believe the PJB was driven as fast as it could which is a speed of approximately 40 km/h. 29. The speed which I would normally drive down the drift would be 15 to 20 km/h when the drift is in as good condition as this one was. 30. As he was going down the drift the speed was such that myself and at least two other people in the transport yelled out to him to slow down. He did not react to any of these requests. Whilst it is noisy and though he had earmuffs on, my experience when you yell as loud as I and the others did, you can hear the yelling. I had earplugs in and could distinctly hear the yelling. I have driven in similar conditions and been able to hear people yell at me. 31. When we got to the bottom of the drift, this is where the usual travelling road is which is the main transport road in the mine; however, at the bottom of the drift where it met with the travelling road. Along the travelling road there are ordinarily rails similar to the railway line. They had been moved so the roadway had been barricaded off requiring us to use the alternate or bypass road. 32. As we came to the end of the drift, the vehicle slowed but only to approximately 15 to 20 km/h and then went straight into the bypass road. The vehicle did not stop. 33. When it became obvious that he was not going to stop and attempt to take the corner at whata I viewed as very high speed in the circumstances, I yelled out at him just prior to him entering the bypass road to slow down. This appeared to have no effect on him and he entered the bypass road and shortly thereafter had struck a large hole in the ground or some other object and was thrown about and jarred quite violently. I hit my head into the roof and I felt a pain in my low back. 34. He continued on driving and when he reached a boggy section shortly thereafter he accelerated. 35. PJBs are able to be operated in four-wheel drive mode but only when they are in first gear. It cannot be operated in four-wheel drive mode in second or third gear (there are only three gears on PJBs). 36. As we entered the bypass road not only was it very rough, it was also very boggy. As soon as we entered the area Mr Fletcher then accelerated the vehicle. I could tell this from not only the increase in speed but also from the revs of the engine. We were in second or third gear as the speed that he was doing was far too great for the speed the vehicle is able to obtain in first gear. 37. He kept on accelerating through the water and the mud and got faster and faster in an apparent effort to avoid being bogged. This led to the vehicle bouncing from side to side and up and down. 38. I and the other miners continued to be bounced around until we reached the diesel bay. 39. Travelling on the alternate road, I noticed that the road was extremely rough indeed. It is not uncommon for bypass or alternate roads to be in a worse state of repair than the main travelling road. However, the condition of this roadway was as bad as any I have ever seen in my whole time in the mines. As soon as we entered the roadway there were quite large potholes and commenced bouncing around. The condition of the roadway remained poor for the entire journey. 40. Even after we left the bypass road and returned to the travelling road, this was extremely rough as well. The rails had been removed from that area and there had been no grading or other work that I could observe to bring it back to the condition one normally expects of a travelling road in the mine. 41. When we go to the diesel bay the pain in my back had worsen[ed] and it was quite severe. 42. I immediately got out and called the Under Manager on the phone and said to him, 'we've come down the pit extremely quickly and I've hurt my back'. The Under Manager, Dave Phillips, said to me, 'were there any witnesses?', and I advised him of the names of the other people in the transport and he said to me, 'I will look into it'. 43. Mr Fletcher, after he had dropped me at the diesel bay, took my crew to the crib room. Having dropped them, he then returned to the diesel bay and he came over to me and he said to me in abrupt manner, 'what's wrong with you, you big sook?' (from the manner and tone of his voice, I formed the view that he had been spoken to about my complaint about his driving), to which I replied, 'I've hurt my back'. Then I said to him, 'why did you drive so fast and keep accelerating?', to which he said, 'if I didn't do that, I would've got bogged', then I said to him, 'why didn't you put it into four-wheel drive and drive at a speed for the road conditions?', he repeated, 'I would of got bogged'. Thereafter he said, 'did I want a lift out?', and I advised him that I would finish the shift. ... 46. The bypass roads had had no maintenance or grading work carried out on it. I have regularly seen maintenance and grading work carried out on the roadway, and indeed carried out that work regularly myself. The condition of the bypass roadway led me to form an opinion that it was appalling. There were no warning signs of any type where you entered the bypass road warning of the condition of the roadway or provided any signage's as to the speed which is appropriate." 54In evidence during the hearing the plaintiff described himself as suffering a significant jarring of the back. 55Exhibit 1 is a copy of the plaintiff's claim form dated 16 July 2010 lodged with Coal Mines Insurance Pty Limited. It recorded an accident involving the plaintiff on 1 July 2010 at 11:30pm at "Mainsouth". The form noted that the shift commenced at 11:15pm and the time of the reporting of the accident at 11:30pm. 56It recorded the affected part injured was to the lower back. 57Exhibit "C" is an "Accident/Incident Investigation Form" completed by Mr Phillips on 2 July 2010. In relation to "Details of Accident/Incident (including names of witnesses)": "I Campton was a passenger in the rear of a PJB along with B Chapman, C Douglas, D Winbank and R Howell, being driven by D Fletcher (Deputy). The PJB had just travelled down the drift and turned into a detour on the travel Rd when it hit a hole jarring Mr Campton's back." 58Exhibit "C" also recorded the following under the heading "Immediate Action Taken by Team Leader/Supervisor".

• Interviewed Mr Campton and inspected road.
• Interviewed witnesses.
• Interviewed and cautioned Mr Fletcher. 59Attached to the Accident/Incident Investigation Form dated 2 July 2010 is a handwritten statement signed by Mr Phillips in the following terms: "When Mr Campton reported the incident to me he also indicated that the PJB was travelling too fast for the conditions and that Mr Fletcher had been told on two occasions previously to slow down. On interviewing each witness separately they all gave the same story of events as Mr Campton. The whole shift had 10 mins previously been told and warned of the detour and told to drive carefully and safely. Mr Fletcher was warned that his actions were unacceptable, and that any future complaints or incidents involving his driving would lead to the immediate suspension of his PJB/SMV permit, as well as disciplinary action." 60Exhibit "D" is a document entitled "Record of Interview" in relation to Mr Fletcher. 61The document records the "Disciplinary Interview" was conducted by Mr Trevor Hines, Production Manager. It is in the following terms: "Dave has been given a written warning for driving too fast in a PJB after being asked by passengers on two occasions to slow down. One passenger now has a jarred back." 62The plaintiff was extensively, and at times vigorously, cross-examined on the circumstances of the accident. He was challenged as to his "conduct" in the vehicle (notwithstanding that he and others were passengers in it whilst being drive by Mr Fletcher), his assessment of the driving or road conditions, and the nature of the warnings given at the pre-shift briefing. As the cross-examination proceeded it became evident that the plaintiff was an honest and reliable witness as to all events concerning the accident. 63I do not propose to canvass the cross-examination on all aspects in great detail, in circumstances in which the defendant made a belated admission of breach of duty and withdrew its defence of what was a baseless defence of contributory negligence on the sixth day of the hearing. 64It is, however, noted that the defendant's contemporaneous investigations: (a) corroborated the plaintiff's account of the incident; (b) established that the reason for it was the excessive speed at which the PJB was driven by Mr Fletcher in existing poor road conditions, and (c) that the defendant, by its supervisors, had previously issued a warning to Mr Fletcher about his driving. 65It is clear that there was never any proper factual material available to the defendant to either dispute the plaintiff's claim in negligence or allege contributory negligence against him. The plaintiff was, as I have noted, a passenger who was in no position to exercise control over the negligent driver or avoid the risk the driver alone created.

PART D - THE HEARING 66The plaintiff was cross-examined for approximately 11 hours and 45 minutes over 4 days. 67The cross-examination commenced in Maitland on Monday 24 February 2014 at T 58 and concluded on Wednesday 26 February 2014 at T 400. It continued in Sydney on 18 March 2014 from T 654-658. 68Broadly speaking, the issues canvassed in the plaintiff's cross-examination can be categorised as follows: (1)Plaintiff's credibility (2)Circumstances of the accident and contributory negligence of the plaintiff (3)Pre-accident injuries and treatment (4)Post-accident injuries and treatment (5)Attempts to return to work (6)Work capacity (7)Recreational activities (8)Shopping activities (9)Domestic tasks and assistance (10)Surveillance material (11)Family circumstances 69The defendant, as I have noted, contested the plaintiff's claim upon the basis that it had no liability to him on the basis pleaded in negligence. Following its admission of liability, the defendant continued vigorously to challenge the claim, now limited to damages, but the defendant did so in circumstances where the medical evidence uniformly established: (1) That the plaintiff sustained serious injury in the subject accident to his lumbar spine. (2) That he was thereafter disabled and incapacitated by reason of his spinal injury. (3) That, by reason of his injury and continuing disabilities, he underwent surgery for his injured back on two occasions. (4) That surgery failed to materially reduce his physical disabilities. (5) That by reason of his injury/disability, the plaintiff was, and is, permanently incapacitated for his pre-injury work as a Mine Deputy. 70The lengthy damages hearing took place notwithstanding that the expert medical opinion of the plaintiff's treating and qualified medical practitioners (as well as that of the consultant neurosurgeon engaged by the defendant, Dr John Grant) all established: (1) The plaintiff sustained injury in the accident in the nature of a prolapse of his L4/5 disc, ultimately the basis for surgical fusion of the L4/5-S1. (2) The plaintiff was effectively totally incapacitated for work. 71That being the case, and there having been no evidence adduced by the defendant of the plaintiff having engaged in any activities inconsistent with the findings made by the abovementioned medical practitioners as to his permanent lumbar disability and incapacity, such a protracted hearing on damages was exceptional and, in my assessment, arose from the defendant's pursuit of issues that could not and did not alter the medical assessments made by the medical practitioners called in the plaintiff's case.

PART E - POST-ACCIDENT TREATMENT - DR WHITTAKER 72On 2 July 2010 the plaintiff attended Dr Reichler, GP. Thereafter he continued to see his general practitioner, Dr Whittaker, on and from 16 July 2010. On 23 July 2010, Dr Whittaker discussed results of an MRI with him and he was then referred to Dr Ferch, Neurosurgeon. 73Dr Whittaker in a report written to Dr Michael Edger dated 6 August 2010 had stated that the plaintiff's accident caused "a severe compression through his lower back ...". He noted he had continued on at work though in severe pain, having earlier seen Dr Heidi Reichler on Friday, 2 July 2010. 74Dr Whittaker's report dated 20 December 2011, contained the following description of the plaintiff's accident: "... He first consulted Dr Heidi Reichler at this surgery on Friday July 2nd, 2010. He gave a history that whilst working the preceding night, sitting as a passenger on an underground transporter, the machine went over a large bump, jarring his back at the time. Due to his helmet, his head was already against the roof, and he was sitting in a posture with his back leaning to the left. The force of the bump was sufficient to cause immediate lower back pain. Mr Campton was able to continue working for the remainder of that shift, taking nurofen (an anti-inflammatory), and avoiding any heavy lifting. When he saw Dr Reichler, the notes record that he reported lower back pain which was worse with movement, particularly from standing to sitting. The pain radiated around his right hip to the right groin area. He did not have neurological symptoms." (Exhibit A, p 5) 75The plaintiff, on the history given, continued at work for the remainder of the shift. 76In respect of the plaintiff's attendance on Dr Whittaker on 16 July 2010, Dr Whittaker recorded: "I saw Mr Campton on Friday July 16th 2010, at which time his history was reviewed, confirmed to be in accordance with the above history, and his progress was reviewed. Mr Campton reported that his low back pain had eased slightly, but worsened when he attempted to lift anything. The pain continued to be referred to the right side groin region. He reported no change in pain with taking meloxicam (an anti-inflammatory), and had some improvement taking panadeine forte. On examination he had an obviously antalgic gait (ie, modified by pain). On inspection there was lumbosacral scoliosis with muscual spasm. Lower limb power and reflexes (both ankle and knees) were normal, though there was sensory loss present down the posterior aspect of the left leg. Tenderness was present in the midline and to the right side of the lumbosacral spine. I recommended he could continue to work on restricted duties, but required an MRI scan of the lower back, and was referred to a physiotherapist for treatment. The findings on examination are detailed above. They are consistent with a diagnosis of lumbosacral spine injury with likely disc prolapse causing neural impingement. In my opinion, the findings are entirely consistent with the history of injury as given by Mr Campton." (Exhibit A, p 5) 77As earlier noted, Dr Whittaker referred the plaintiff to Dr Richard Ferch, neurological/spinal surgeon. The plaintiff initially saw him on 5 August 2010. Dr Ferch recommended treatment options including surgery by means of microdiscectomy to relieve neural compression at L5 level. 78He was subsequently referred by Dr Whittaker to Dr Michael Edger, neurosurgeon, to whom reference has been made (at [73]) for a second opinion. Dr Edger also observed that there were signs of a disc prolapse and considered that surgery would probably benefit Mr Campton's condition. 79As discussed below, Dr Ferch operated on the plaintiff on 13 September 2010. 80The plaintiff then attended the Hunter Pain Clinic and received treatment from Dr Simon Tame. 81In a report dated 14 December 2010, Dr Tame considered the plaintiff to be: "...suffering from chronic low back pain following a workplace injury. There may well be a significant component of a treatable simple cause such as interspinous bursitis or facet joint pain which we should try to identify as it is easily managed. In addition to that Ian has had a severe reaction psychologically to his pain problem which is not surprising given that he is devastated not to be working." (Exhibit A, p 75) 82Mr Campton received psychological treatment from Innervate Pain Management, on referral from Dr Tame. In a report dated 19 January 2011, Sarah Campbell, psychologist, noted Mr Campton's history of persistent leg, groin and back pain following the accident, and that his pain was impacting on his sleep, socialisation, and participating in leisure activities: Exhibit A, p 79. 83In April 2011, a further MRI was undertaken and the plaintiff was then reviewed by Dr Ferch. Dr Ferch considered that there was likely to have been a degree of L4/5 instability causing facet joint changes. Dr Ferch discussed further surgical management with Mr Campton. It was decided not to pursue further surgery at that stage. 84The plaintiff then received physiotherapy and underwent six sessions of psychological pain management therapy. 85In a report on MRI examination undertaken on 20 July 2011 it was noted that there was a "broadbased annular disc bulge" in combination with changes in the posterior elements at the L4/L5. 86The plaintiff was issued with WorkCover Medical Certificates for restricted duties. 87Dr Whittaker stated in his report of 20 December 2011 that he considered that the plaintiff had sustained "an acute L4/5 disc prolapse with neural impingement affecting the left L5 nerve root" as a result of the subject accident. He noted that he also sustained multi-level disc injury with disc bulging at L2/3 and L5/S1 levels and an annular fissure of L1/2. The direct effect of these injuries, he stated, caused left sided leg pain, neurological dysfunction and lower back pain. 88He noted that the plaintiff had been "unable to return to any form of employment". He also stated that Mr Campton was unable to work in any capacity for which he was reasonably qualified by experience or training. 89Dr Whittaker stated that the plaintiff's work restrictions would be permanent. The restrictions included restrictions on weight lifting, sitting and standing endurance, time spent travelling in vehicles and walking distances. 90Dr Whittaker expressed the view that his condition was unlikely to improve to a significant degree in the future. In his opinion, the plaintiff had reached the maximum medical improvement that could be reasonably expected from his injury. 91Additionally, he noted that Mr Campton was experiencing depressive symptoms and that his fear of further aggravation of his symptoms impaired his ability to function in his daily life. 92Dr Whittaker wrote a further report dated 12 August 2013. In it he stated that since his previous report (20 December 2011) that plaintiff had:

• Experienced progressive decline in function and persistent left lower limb radiculopathy.
• Experienced persistent left leg numbness, left foot weakness of dorsiflexion, and lower back pain.
• Developed upper abdominal pain as a consequence of gastritis, which is related to the plaintiff's medication.
• Received further physiotherapy.
• Consulted with Dr Ferch on 28 June 2012, who recommended further surgery. This surgery occurred on 8 April 2013 and involved revision surgery with interbody distraction at L4/5 and L5/S1.
• Consulted Sarah Campbell, clinical psychologist, for psychological assistance with managing chronic persistent pain and the associated negative effects on his mood. 93Dr Whittaker noted that the plaintiff's symptoms of bilateral anterlateral thigh loss of sensation were consistent with a diagnosis of meralgia paraesthetica, due to compression of the lateral femoral cutaneous nerves. 94Dr Whittaker's opinion as to the permanent sequelae in respect of the injury included:
• Loss of power of dorsiflexion of the left foot ("foot drop").
• Loss of sensation in the left leg with a feeling of permanent numbness being present.
• Loss of left ankle reflex.
• Abnormal high-stepping gait due to the left foot drop.
• Chronic pain syndrome involving the lower back. 95Particular sequelae, as at the date of the report, which he considered may or may not persist permanently were:
• Bilateral anterolateral thigh numbness that developed following the second spinal surgery.
• Right hand numbness that also developed following the second surgery.

PART F - THE EVIDENCE OF TREATING NEUROSURGEON DR FERCH 96As noted above, Dr Richard Ferch initially saw the plaintiff on 5 August 2010. He obtained a history of back pain from the date of the subject accident. He also noted that Mr Campton had a history of left leg pain and that he had been limited by ongoing pain radiating from his back into his left buttock down the posterior aspect of his thigh to his posterolateral calf. In addition, there was a history of his lateral toes and the dorsum of his foot having felt numb. He noted he had no ongoing right lower limb symptoms. Dr Ferch said in his view there was disc bulging present that was consistent with the plaintiff's left leg symptoms. Neurological examination, he noted, revealed mild weakness of dorsiflexion in his left great toe. 97The plaintiff again attended Dr Ferch on 7 September 2010 and said he continued to be troubled by pain radiating to his left leg, which continued to feel numb and weak. 98Dr Ferch was asked to give his opinion of the plaintiff in terms of complaints he had made and his presentation on examination. He stated: "A. Yeah, I - yes, I've considered Ian to be considered in his decision making about his problem and he's listened to what I've had to say. When I offered surgery initially it did take him some time to think about it and go ahead with it, but I can understand wanting to think about it in view of the substantial nature of the surgery and only the modest change of improvement that I offered him." (T 513:45-50)

(i) The First Operation (13 September 2010) 99The plaintiff was admitted on 13 September 2010 to Lake Macquarie Private Hospital where he underwent a left L4/5 microdiscectomy for L5 neurolysis. This was performed by Dr Ferch in order to decompress the L5 nerve root which he considered had been caused by the disc prolapse. 100Following review on 26 October 2010, the plaintiff reported that he had experienced substantial improvement in his left lower limb symptoms. He remained troubled by aching across his back and found it difficult to lift. Dr Ferch noted that he had marked degenerative change throughout his lumbar spine and encouraged him to consider undergoing various forms of treatment (hydrotherapy, core strengthening exercise programme, and a physiotherapy based programme). 101The plaintiff then received pain management care at Hunter Pain Clinic (Dr Simon Tame), the Innervate (psychology) Pain Management Program and had diagnostic injections of the lumbar spine because of continuing low back pain: Exhibit A, p 7. 102On 29 March 2011, Dr Ferch noted that the plaintiff continued to experience discomfort with his back. He also noted his account of having experienced persistent numbness into his left foot. The pain radiating down his legs had improved following surgery. 103On 28 April 2011, Dr Ferch observed that another MRI study confirmed high signals at the L4/5 level which to him were suggestive of a degree of instability. He noted that Mr Campton's left lower limb pain was intermittent and that numbness in his left foot was particularly triggered by rotational activities. 104Dr Ferch observed on 20 March 2012 that the plaintiff continued to struggle with numbness in his left lower limb and that that had progressed. He also noted that he had also developed increasing weakness in his left foot and that there was a marked restriction in his movement. Neurological examination revealed marked weakness of dorsiflexion in his left ankle and great toe. 105Dr Ferch saw him again some three weeks later on 5 April 2012 following the performance of nerve conduction studies, an MRI scan and x-rays. The results confirmed a deteriorating condition in the same area of the lumbar spine (the L4/5 level). Dr Ferch in his report dated 5 April 2012 observed: "... These studies show progressive collapse on the left at the L4-5 level with foraminal stenosis and scoliosis ..." 106The report supports the conclusion that the surgery performed on 13 September 2010, which had been intended to give relief from radiculopathy, had been unsuccessful in doing so. In his report of 5 April 2012, Dr Ferch again addressed the radiculopathy problem: "... Ian's nerve conduction studies are consistent with an L5 radiculopathy and show no abnormalities with the peroneal nerve. There is evidence for a peripheral neuropathy." (Exhibit A, p 38) 107Dr Ferch predicted that the plaintiff's condition would be ongoing, stating that in the absence of treatment "it is likely that his low back and left lower limb pain will persist". He also indicated the plaintiff's "weakness" may well deteriorate and that "revision surgery" was an option (that is, revision surgery with interbody distraction and revision neural decompression). 108On 28 June 2012 Dr Ferch reviewed the plaintiff. He discussed conservative treatment as well as possible revision surgery. He stated that revision surgery with interbody distraction at L4/5 with L5/S1 carried the best chance of a sustained improvement in symptoms. 109The reports and evidence of Dr Ferch established that, as at April 2012, (approximately 1 year 9 months after the accident), the plaintiff's low back pain and compression of the nerve root were related to a progressive collapse at the L4/5 level. His condition at that time was manifesting itself in three respects - a severe level of back pain, increasing left lower limb symptoms and associated left foot weakness. In his report of 5 July 2012, Dr Ferch therein stated that the progressive collapse of the L4/5 level: "... was secondary to the disc rupture which had initially been treated with a microdiscectomy operation." 110The recurrent compromise of the nerve had, he said, resulted from the progressive collapse. 111The clinical picture that the plaintiff faced in relation to his low back, left lower limb and left foot weakness was evidence of the fact that his condition had deteriorated (after some initial improvement in some symptoms) since the surgery performed on 13 September 2010. In consequence, he was again presented with the possibility of further surgical intervention. 112In his report dated 5 July 2012, Dr Ferch stated: "Mr Campton underwent microdiscectomy surgery at the L4-5 level in 2010. This was performed to decompress the L5 nerve root which was caused by a disc prolapse compromising the nerve root. Mr Campton developed back and leg pain when he was travelling in a transporter over rough ground. He was jarred resulting in him bouncing heavily and triggering the onset of back and left leg pain. His symptoms did not improve with conservative treatment. Mr Campton experienced a substantial improvement following treatment but remained troubled particularly by back pain. This unfortunately progressed and he developed increasing left lower limb symptoms with foot weakness developing. Imaging confirmed progressive collapse of the L4-5 level. This collapse was secondary to the disc rupture which had initially been treated with a microdiscectomy operation. The progressive collapse resulted in recurrent compromise to the nerve. Treatment options were discussed and the surgical treatment offered included interbody distraction and fusion." (Exhibit A, p 40) 113On 13 November 2012, Dr Ferch noted that the plaintiff's left lower limb symptoms had further deteriorated and that he had still not been able to return to work. 114On 14 March 2013, Dr Ferch reviewed the plaintiff with recent x-rays and a follow-up MRI scan. Dr Ferch reported on a progressive deterioration at L4/5 with foraminal stenosis. He again discussed possible further surgery and associated risks with Mr Campton: Exhibit A, p 45.

(ii) The Second Operation (8 April 2013) 115On 8 April 2013, Dr Ferch performed a revision L4-S1 decompression and interbody fusion. 116Dr Ferch reviewed the plaintiff following the surgery on 21 May 2013. He reported that his lower limb symptoms had improved on what they had been before surgery. His foot weakness and numbness was "a little improved" on what it was, but he was still troubled with some weakness. 117Dr Ferch also noted that the plaintiff experienced some numbness in his anterior thighs with the left being affected more than the right and that: "... this is likely to be related to irritation to the lateral femoral cutaneous nerve from positioning. Ian also experiences some tingling in the tip of his index finger on the right which may also be related to positioning but does seem to be improving." 118This numbness continued to persist up until at least 20 August 2013: Exhibit A, p 57. 119On 20 August 2013, Dr Ferch also noted that the plaintiff was unable to dorsiflect his ankle and great toe. He considered that his deteriorating left foot weakness may have been related to the after effects of nerve root compression within his back, but that it was possible that there was some ongoing compromise either within his back or more peripherally. 120Dr Ferch was cross-examined on 27 February 2014 in the East Maitland sittings of the Court: T 482-514. 121He agreed in cross-examination that the plaintiff had pre-existing degenerative changes in his lumbar spine. These included a scoliosis convexed centred at the L2/3 level: T 486:45-50. He acknowledged the latter condition can become painful without trauma, that is, as part of the aging process: T 487:45-50. He added that he sees patients with a scoliotic deformity without pain, so that it was variable: T 488:1-6. 122He referred to the scoliotic deformity as possibly involving the L2/3 level on the right, and observed: "... but Mr Campton was not symptomatic on the right and I interpreted that as being an incidental finding as in it not actually causing him symptoms." (T 488:40-50) 123Dr Ferch then referred to the prolapse of the L4/5 disc as diagnosed by him. He stated that it was possible that there had been some disc bulging at that level "prior to the trauma": T 489:30-35. 124He stated at T 490:1-6: "So what I interpreted as being the situation was the development of acute nerve root compression syndrome associated with the deformity and that acute syndrome representing nerve compromise and that was triggered by the event which he described to me of having his spine jarred. I did not believe specifically that the deformity had occurred as a direct consequence of that injury." 125Dr Ferch gave evidence as to his understanding of the mechanics of the accident at T 491:35-40: "Q. You thought [the vehicle struck a hole causing] him [to bounce] heavily on his back, right firstly? That's in the second paragraph? A. Yes, so I said a vehicle struck a hole, causing him to bounce heavily on his back which precipitated back and left leg pain and then he had two more jars which further aggravated his symptoms." 126He was asked at T 491:47-50: "Q. Now a couple of things about that history Doctor, I take it you have assumed some degree of violence in this act or are you not just thinking something traumatic and nothing else?" 127His answer was: "A. Well I suppose I was trying to understand how this developed. Q. Yes? A. And I observed in that initial assessment that he had a significant neurological deficit with weakness in the foot and symptoms clearly attributable with the L5 nerve being irritated and that was how I summarised it. Whether it happened from a high energy impact or a relatively low energy impact, didn't make a difference as to how I would treat the patient or treat the symptoms. Q. Right. And is it important that the pain in the leg came on at - immediately after the first - the occasion the vehicle struck the hole. In other words if there was a delay in left leg pain would that be of any significance to you as to causation? A. It's to the acute development of nerve symptoms sometimes there is a delay and it can still be related to the nerve being acutely compromised at the level. We often see this with patients with a disc prolapse, say for example. That being said, if the delay is prolonged, then it is more difficult to relate it to a specific event. In essence-" (T 492:1-18) 128Dr Ferch then added at T 492:24-32: "A. I suppose in essence if it comes on fairly soon after it I attribute it to the event. Q. And what about 24 hours? A. Yes. Q. Yes. Now-- A. Even weeks." 129Dr Ferch accepted that the spondylolisthesis of a mild sort was more likely to have pre-existed the accident: T 493:25-30. He stated at T 493:30-T 494:21: "Q. And does that create any particular risks itself, this is at page 173, any particular risks itself to back pain, that condition? A. I think certainly the fact that there was a scoliosis and there was a degree of foraminal stenosis at L4/5 and the degenerative spondylolisthesis at L5/S1 meant that Mr Campton was vulnerable to recurrent nerve compression despite my limited decompressive procedure and that could occur due to progression of the deformity. Q. Which could be natural process? A. It could be a natural process but it could also have been exacerbated by a decompressive procedure and also progressive failure of the disc at the L4/5 level? Q. And are you able or unable to indicate which of those three alternatives was likely in this case? A. Well I attributed the onset of his symptoms to the event where his spine was jarred and therefore the development of the radiculopathy I attributed to that event and hence the decompressive procedure was aimed to treat that. Q. Doctor can I just-- HIS HONOUR: Just a moment. DOOLEY: He hasn't finished. HIS HONOUR: Please. Q. Yes, Doctor, continue? A. And the revision surgery was an attempt to further help the nerve. The question whether he would have developed progressive deformity and spondylolisthesis and neural compromise in the absence of the initial event, I don't know but-- JOSEPH Q. Doctor, can I take you to page-- HIS HONOUR Q. Just a moment please? A. I was simply going to say that I felt that the event which triggered it was the starting point to his developing symptoms." 130In relation to the left lower limb, Dr Ferch stated that the plaintiff had been troubled by increasing leg symptoms in the presence of neural compromise and also other potentially compounding factors: T 495:5-10. 131He stated that when he saw him on 20 March 2012, he continued to struggle with numbness in the left lower limb but that it had progressed and the plaintiff had developed weakness in the foot: T 495:40-45. 132Dr Ferch said that the nerve conduction study performed by Dr Katekar was evidence of a peripheral neuropathy as a complication of diabetes: T 496. He also stated there was a likely contribution from L4/5 and S1: T 496:45-50. 133Dr Ferch explained the mechanics related to the leg symptoms: T 497:3-11: "Q. So if you've got damage to the nerve at the L5 4/5 or L5/S1 it can often affect the perineal nerve which can affect your capacity to use your foot? A. So the weakness, because he had difficulty lifting his foot up, lifting the toes up and weakness in lifting the toes up can be caused by a nerve getting pinched in the spine, the nerve being affected somewhere along the course of it and it's generally vulnerable at the level of the knee or it can be due to a problem more peripherally with the muscles. The nerve contribution I suppose I was most interested in whether there was compromise at the knee and we were blaming changes in the spine when there was also a compromise at the knee, which the nerve test didn't show. It showed a spinal change in addition to a peripheral neuropathy." 134In the course of his evidence on the cause of the plaintiff's problem with his foot, Dr Ferch was asked: "Q. Doctor, if it was, if this problem with his foot was, came from the L5/S1, L4/L5 or L5/S1, then you would not have expected him to have been able to dorsiflex his left ankle? A. So a complete loss of the nerve results in the ability to dorsiflex the ankle and an incomplete loss of the nerve can result in weakness, and I have always attributed the weakness in his foot to the L5 nerve problem." (T 499:25-30) 135He stated at 499:39-44: "Q. You say that he had a weak foot at the beginning, could that have been caused by any peripheral neuropathy, if it pre-existed the accident? A. No I think that an unlikely explanation, there was no perineal nerve change and peripheral neuropathy from a diabetic source or other source is generally a burning numbness in the soles of the feet, rather than a weakness of ankle dorsiflexion."

(iii) Pre-Existing Degenerative Changes 136Much attention was given in the cross-examination of Dr Ferch to the existence and nature of pre-existing degenerative changes in the plaintiff's lumbar spine. Such changes had been the subject of MRI and other radiological investigations. They established marked changes throughout the lumbar spine including a scoliosis convexed, centred at the L2/3 level with marked reactive changes: T 485-6. 137In cross-examination it was put to Dr Ferch that such degenerative changes were capable of causing back pain in certain situations: T 487:15-20. Dr Ferch stated that with scolitic deformity some patients had minimal back pain whilst others have a lot. Such deformities, he observed, may also generate nerve compression causing pain as part of the aging process with or without trauma: T 487:45-50. 138When asked whether the L1/2 level can be affected by the deformity at the L2/3 level, Dr Ferch agreed that at deformity the L2/3 level can affect the L3/4 and L5 levels "because you get secondary curves": T 488:20-25. 139Dr Ferch was taken to radiological findings of an annular bulge at the L2/3 level. He agreed that could have been disc related to the scoliotic deformity at the L2/3 level: T 488:35-40. 140Dr Ferch noted that the foramina can be opened by scoliotic deformity due to twisting of the spine. He noted that in the plaintiff's case the foramina were: "... narrowed and at the L2/3 level on the right, that's the concavity of the curve and therefore it's narrowed, but Mr Campton was not symptomatic on the right and I interpreted that as being an incidental finding as in it not actually causing him symptoms." (T 488:40-50) 141Dr Ferch confirmed there was no focal disc protrusion at the L3/4 but there was patent canal and foramina. He said that the level, however, was well preserved: T 489:15-20. 142He agreed there was a broad based annular disc bulge at the L4/5 similar to that at the L2/3. He accepted that it was possible for there to have been some disc bulging at the L4/5 prior to the trauma: T 489:30-35. 143When asked whether the event of July 2010 could be seen as an aggravation of a pre-existing condition, Dr Ferch stated that he did not believe that "the deformity" had occurred as a direct result of the injury but that it had caused an acute syndrome representing nerve compromise due to the accident: T 490:1-4. 144Dr Ferch accepted the proposition put to him that the plaintiff's "radiological picture" would be vulnerable to developing neural symptoms adding "... they may or may not develop them and I suppose he developed them after this specific event ..." acknowledging that it could have happened "at another time with another event" and it was possible for nerve compression symptoms to occur without an event at all: T 490:8-25. 145Dr Ferch stated in cross-examination that there had been substantial improvement in the plaintiff's leg problems following surgery but that he continued to experience back pain: T 485:29-31.

(iv) Post-Operative Care by Dr Whittaker 146Following the further operation the plaintiff has remained under the care of Dr Whittaker who reported on his ongoing condition: Exhibit A, p 13. 147Dr Whittaker stated that the plaintiff's ongoing condition includes: "- Chronic persistent lower back pain, related to the disc prolapses sustained at the time of the injury. Subsequent surgery which was required to relieve the pressure on the spinal nerve roots led to instability and abnormality of posture. Mr Campton's condition was so impaired that he was advised to proceed to spinal fusion surgery. He continues to experience chronic pain in the region of the lumbar spine. He has required strong analgesic medications since the most recent surgery, which have now ceased. He was taking Ibuprofen and Meloxicam as pain relievers which led to the development of gastric inflammation. - Chronic persistent loss of sensation and weakness in the left lower limb, due to compression of the nerve roots to the left leg sustained with the prolapse of L4/5 and L5/S1 spinal nerve roots. Mr Campton has a permanent loss of power affecting the dorsiflexion movement of the left foot, leading to 'foot drop'. There is loss of the left ankle reflex also indicating neural injury. This has persisted despite surgery to relieve the pressure on the L5 nerve root, indicating that the changes in nerve function are permanent. - Impaired mobility due to abnormal gait and weakness of the left lower limb, which are due to the disc prolapses described above. Mr Campton's gait is altered by permanent left foot drop, and permanent alterations of spinal posture with abnormal tilting of the pelvis whilst walking. - Psychological sequelae due to chronic pain and persistent disability, for which Mr Campton sought psychological therapy. These have included alterations of mood, irritability, withdrawal from activities and social withdrawal, and he at one time experienced suicidal ideation. These symptoms have been assisted by psychological therapy, with improvements in coping strategies with regard to his chronic pain syndrome and neurological injury to the left leg. - Loss of occupational capacity. Mr Campton has been unable to return to work since his injury. He was employed as a Coal Mine Deputy at the time of his injury. He is unlikely in my opinion to be capable of any work in the future. Mr Campton has been assessed by Rehabilitation Consultants and has been provided with job seeking assistance by Coal Mine's Insurance since his injury, but no suitable work as been able to be identified." (Exhibit A, pp 14-15) 148Dr Whittaker also observed: "... His persistent condition is in my opinion due to permanent injury to the nerve roots that supply the left leg from the pressure placed on them by the disc prolapses. He has subsequently experienced the development of a chronic pain syndrome involving the lower back, along with permanent abnormalities of gait and posture due to the injury to the nerves to the left leg that were sustained. Yes it is my further opinion that Mr Campton has been rendered permanently unable to work as an Underground Coalmining Deputy by the injuries that occurred on 1st July 2010. The inherent duties of his occupation required him to walk long distances over uneven rough ground on slopes in an underground coal mine. Despite extensive treatment including two surgical procedures, physical rehabilitation by physiotherapy and psychological rehabilitation, Mr Campton's capacity to perform the duties of his occupation has not been achieved, and in my opinion will never be achieved in the future." (Exhibit A, p 15) 149Dr Whittaker stated that the plaintiff's condition: "... will continue to be permanently incapacitated by his injury. He has sustained a permanent injury to the left sciatic nerve due to compression of the exiting nerve root at the time of the injury." (Exhibit A, p 15) 150He identified the following "permanent sequelae" due to the injury: "- Loss of power of dorsiflexion of the left foot ('foot drop'). - Loss of sensation in the left leg with a feeling of permanent numbness being present. - Loss of the left ankle reflex. - Abnormal high-stepping gait due to the left foot drop. - Chronic pain syndrome involving the lower back." 151Dr Whittaker concluded: "In my opinion, Mr Campton's current diagnoses, current disabilities and restrictions are permanent. They have persisted despite extensive treatment over a period of time that now extends to over 3 years. In my opinion there is little prospect of any future improvement in his condition."

PART G - THE DEFENDANT'S MEDICAL EVIDENCE - DR HARVEY, ORTHOPAEDIC SURGEON 152Dr Harvey, orthopaedic surgeon, was retained by the defendant to examine and report upon the injuries that the plaintiff alleges he suffered to his lumbar spine, and as to his capacity for work and the assessment of any permanent impairment of his lower back. 153Dr Harvey examined the plaintiff on 30 October 2012 and 16 September 2013. Particulars of the reports of Dr Harvey admitted into evidence are as follows: (i) Report 30 October 2012 (diagnosis, causation, work capacity, treatment, prognosis and additional comments) - Exhibit 25. (ii) Report 30 October 2012 (permanent impairment assessment) (iii) Report 26 November 2012 (in response to letter of Coal Mines Insurance 23 November 2012 commenting upon the report of Dr Ferch). (iv) Report 16 September 2013 in respect of the examination carried out on that date. (v) Report 16 September 2013 in respect of the plaintiff's letter concerning Dr Harvey's examination of him on 30 October 2012. (vi) Report 20 September 2013 responding to seven matters raised in a letter from the defendant's solicitors to him dated 19 September 2013. (vii) Report 14 October 2013 in respect of DVD "segments" including, in particular, a segment relating to 23 November 2012. (viii) Report 18 October 2013 containing additional matters concerning a DVD of the plaintiff and "additional points" drawn to his attention in teleconference with Mr Joseph SC. 154The plaintiff attended Dr Harvey on 30 October 2012. 155Dr Harvey expressed the opinion on that date that the plaintiff had degenerative lumbar disc disease and that the trauma (of the accident) could have aggravated this degenerative condition and could have precipitated the onset of symptoms: Exhibit 25, p 7. 156Ultimately, his opinion as to the nature of the underlying pathology which he considered was responsible for the plaintiff's symptoms was at odds with the opinions expressed by Drs Ferch, Edger, Grant, Hopcroft and Bracken. 157In his first report of 30 October 2012, Dr Harvey stated, inter alia, that he considered the plaintiff had a degenerative lumbar disc disease which could have been aggravated in the subject accident: p 8. 158He noted that the plaintiff had undergone spinal surgery and "... I consider that it is consistent that he could have persistent pain following this": p 8. 159Dr Harvey expressed the opinion that the plaintiff "... would be fit for lighter work which did not involve heavy lifting or bending": p 8. 160He stated that it was likely that his susceptibility to lower back pain would persist indefinitely: p 8. 161Dr Harvey considered that Mr Campton's future management should be conservative and that the only indication for surgical intervention would be if there was some clear neurological deficit, but that he did not consider there was objective evidence of such deficit: p 9. 162In his second report of 30 October 2012 Dr Harvey stated that the plaintiff had a 20% impairment of the lower back and stated that he believed this would have to be attributed to the injury on 1 July 2010. 163In his report of 26 November 2012, Dr Harvey noted that Dr Ferch had recommended spinal fusion at both the L4/5 and L5/S1 levels. He stated he was unconvinced that the plaintiff had significant weakness in the left lower limb as claimed. He expressed the view that, at the plaintiff's age, he would see little likelihood of him returning to work after such an operation (fusion at one or two levels). This observation is relevant to the plaintiff's likelihood of returning to work following the second operation performed on 8 April 2013. 164In his first report of 16 September 2013, Dr Harvey noted that the suggestion had been made that the plaintiff had peripheral neuropathy, but the sensory loss did not correspond, in his opinion, with peripheral neuropathy. 165Based upon his examination of the plaintiff on that date, Dr Harvey expressed, in his conclusions (pp 5-7) reservations as to the plaintiff's complaints of sensory loss as detailed in that report. In particular, he expressed doubts as to the assessment or diagnosis that had been made by Dr Ferch to the effect that the plaintiff had a peripheral neuropathy. Dr Harvey's basis for his contrary opinion was that he did not consider that the sensory loss corresponded with that of a peripheral neuropathy where, he said, it tends to be more peripheral stocking-type sensory loss. 166I note that Dr Harvey did not dispute that the plaintiff in fact had the level of back pain that he complained of following the further spinal surgery involving the interbody fusion extending from the L4 to the sacrum. In effect he noted that the complaints of continuing pain did not appear to have improved following the second operation: p 5. 167Dr Harvey, at page 6 of the lastmentioned report, considered that the plaintiff: "... has a greater physical impairment than when I last saw him. He has now had a spinal fusion between L4 and S1 and this is generally regarded as causing an alteration in spine mechanics and reducing the capacity of a person to engage in more strenuous activities." 168I also note that Dr Harvey in his report of 16 September 2013 did not suggest that the plaintiff had the physical capacity to resume work, whether suitable or light duties or otherwise. However, three days after his report, as noted below, the defendant's solicitors wrote to him on 19 September 2013 raising a number of matters for comment (seven in all - see paragraphs 1 to 7). In paragraph 6 it is clear that he had been asked by the defendant's solicitors to consider the question as to whether the plaintiff was fit for work. Dr Harvey, not having addressed that issue in his report of 16 September 2013, stated in his report of 20 September 2013: "6. Mr Campton has had a spinal fusion and as stated in my report of 16/09/13, it is consistent therefore that he would have difficulty doing work which involved much bending or heavy lifting. I consider that he would be fit for lighter work only. I note that Dr Ferch has tried to precisely set out his work capacity and I think his opinion is a reasonable one. I would agree with the general thrust [of] his opinion. If Mr Campton could be induced back to some lighter work, then his capacity for lifting would gradually improve with time and I don't believe that it would be necessary to put any long-term arbitrary limit on his lifting capacity. However, I think it would be reasonable that he might have difficulty with heavier lifting." 169Dr Harvey, when specifically asked by the defendant's solicitors in a letter dated 27 August 2013 for his opinion on whether the degenerative changes could have caused symptoms without injury, importantly stated that he did not think it would be possible to state that the plaintiff would have developed symptoms if the incident on 1 July 2010 had not occurred. I will refer in detail to this aspect below: at [171]-[177]. 170In his second report of 16 September 2013, Dr Harvey responded to the plaintiff's letter concerning his examination on 30 October 2012. Dr Harvey, in effect, stated that he always took "... the greatest care not to cause undue discomfort ...". He denied that he had placed his knuckle into the plaintiff's back. This was in response to a complaint by the plaintiff that Dr Harvey's examination had allegedly exacerbated his back pain. 171The defendant's solicitors again sought to have Dr Harvey address the issue of pre-existing degenerative changes in a letter to Dr Harvey dated 19 September 2013. This, as discussed below, went to an issue sought to be raised by the defendant, that is, that the plaintiff's working life would have been limited/shortened by reason of degenerative changes in his spine. Dr Harvey in his response report dated 20 September 2013 stated, inter alia: "1. You are requesting me to predict what could have happened in this man because of pre-existing degenerative changes in the lumbar spine. As I have indicated at the bottom of page 6 of my report of 16/09/13, this is quite impossible. Degenerative changes in the lumbar spine are a universal occurrence in the population and it has been shown that there is no good correlation between the presence of such radiological changes and symptoms. Occasionally these degenerative changes or degenerative changes in the disc do produce pressure on the nerve roots and then the person develops radiating pain down the limbs. If such an event occurs after any injury it would seem reasonable to presume that this injury may have caused the onset of such a painful episode. I have been unconvinced that Mr Campton's pain was due to pressure on nerves. Dr Ferch has carried out two operations on the presumption that it was and these operations have been ineffective and this would give further evidence that my opinion is correct ..." (emphasis added) 172Dr Harvey further dealt with specific issues raised by the defendant's solicitors. These included matters upon which he expressed his opinion as follows:

• That, as noted above, he did not believe it could be predicted that the plaintiff would have developed lumbar disability had the accident on 1 July 2010 not occurred.
• He believed that many of the plaintiff's symptoms could not be explained on a physical basis.
• It was unlikely that there was any significant organic basis to explain the plaintiff's complaint of numbness in the hand.
• He did not believe that the plaintiff's shuffling gait was due to any organic cause.
• He did not consider it was possible that the plaintiff could have peripheral neuropathy and have brisk tendon jerks in the knees and ankle.
• Having undergone spinal fusion, it was consistent that the plaintiff would have difficulty doing work which involved much bending or heavy lifting. He considered that he would be fit for lighter work only.
• He did not consider the recommendations in the report of Suzanne Ravagnani of 14 August 2013 could be regarded as reasonable. He agreed that it would be reasonable for the plaintiff to have domestic assistance for heavier gardening work and some home maintenance which required a certain degree of agility. He would not expect this to exceed approximately, on average, two hours per week. 173Dr Harvey proceeded in his report of 20 September 2013 to discuss the matter upon which he differed from Dr Ferch, namely, the symptoms, in particular, numbness in the lower limbs. As discussed below, the basis and validity for Dr Harvey's opinion on this latter issue is one that requires examination having regard to the nerve conduction studies, surgical findings and opinion of Dr Ferch (as well as the opinion of other medical examiners). 174In his report of 14 October 2013, Dr Harvey made comments on segments of a DVD film shown to him. The DVD was a surveillance recording of the plaintiff, predominantly filmed on 23 November 2012. He said the film showed the plaintiff walking with his wife at times with a slight limp but that he "certainly" did not have a dropped foot gait. This observation is at odds with those of Dr Ferch. He also stated that the DVD tended to confirm his opinion that there was not any objective evidence that he had any significant neurological abnormality in the lower limbs. He did not consider that any conclusion could be reached concerning the plaintiff's back condition: "... because none of the DVD showed any clear indication that he was bending his back or doing any heavier lifting. The nearest that one could see him doing any lifting is when he leant into the back of the car to lift out a bundle of clothes ..." 175Dr Harvey also made the following comments:
• "...he can be seen walking along the street with no apparent difficulty".
• "He did this [walking down a few steps] without any apparent difficulty and it was also obvious that he was not paying any particular attention to the fact that he was walking down steps, as might be anticipated in a person who has any significant limb weakness." 176In his further report dated 18 October 2013, Dr Harvey made the following additional comments in respect of the DVD:

PART H - DEFENDANT'S "CASE" BASED UPON PRE-EXISTING BACK SYMPTOMS 178On the application of the defendant, leave was granted for Dr Ferch to be recalled for cross-examination upon three specific matters. The first concerned treatment by Dr Whittaker of the plaintiff for symptoms of numbness down the left leg medial aspect. The defendant wished to explore whether this suggested that the plaintiff had, before the accident of July 2010, developed symptoms referable to pre-existing changes, in particular at the L4/5 level. 179The evidence in this respect was as follows: "HIS HONOUR: Q. Doctor, just [to] clarify, these questions relate to an entry in the clinical notes of Dr Whitaker, the relevant date is 10 March 2009 and I'll have the entire entry read to you and then you may be asked a question or two. JOSEPH Q. Doctor, Dr Damien Whittaker's name appears: "Work injury review; performing pre-injury duties, seeing Dr Burton, 14 May possibly for further MRI. May require ACL repair. Management: Continue PID that's pre injury duties, awaiting new specialist review. Then another heading Unrelated Problem: Problems with numbness down left leg medial aspect, medial aspect of foot and burning sensation of forefoot and toes. Permanent - was initially intermittent? Wears tight gaiters around that region of left leg. Will try not wearing them for a while and see if it improves. Examination: Left LL, which we understand is lower limb, normal reflexes, reduced vibration sense and light touch in left L4 region and base of forefoot. Normal proception and power. Reason for contact, question mark. Compression neuropathy, question mark. Diabetic mononeuritis. Management: NCS referral to Dr Katekar." The question is this, in respect of that part of the entry dealing with the "problems" and "the examination", does that provide you with any additional information that would indicate any symptoms in the back that may have pre existed the time you saw the plaintiff? A. The distribution is a little different to when I saw him and he had an acute onset of symptoms after his recent event, but it is possible that some of those symptoms in particular, on the dorsum of the foot could be a cross over, but the medial calf is more L4. And the question of whether there's a compressive thing, wearing stockings around the leg which can compress the nerves down to the foot was a contributor seems reasonable. We do know he has a degree of peripheral neuropathy. That could be also an explanation. The short answer is, it could be consistent with some pre existing condition, but it does not specifically indicate that. Q. And my question is you, of course, initially operated at L4/5 level? A. Yes. Q. And are those symptoms consistent with the L4/5 level, that is, the ones in March 2009? A. On the basis of those symptoms, the local doctor was concerned about not specifically spinal compression, but more peripheral source, and I would also be concerned about that as a source. I don't think that's as indicative of L5 nerve compression as what the presentation was in 2010. Q. If there is a developing situation, does it start off ambiguously in a sense and becomes more certain as time goes on? A. Sensory symptoms can be a little diffuse. They are not always in the correct distribution you expect for a nerve. The acute deterioration in July 2010 fitted very well with the nerve. It may or may not have been associated with developing symptoms in that distribution because for sure, there have been progressive changes in that nerve over time." (T 771-2) (emphasis added) 180Mr Joseph moved to the next issue: "Q. Doctor, perhaps I can read this question to you, given that presentation in March 2009, does that create in your mind, a likelihood or possibility that even without the incident in 2010, that there would have at some stage, even for minor jarring, a presentation such as you found in 2010? A. A possibility, yes, but not a likelihood. I would have said the likelihood was that the acute episode resulted in acute deterioration in the nerve function which is what precipitated treatment through me. Q. I'm not suggesting otherwise. I was asking you on the assumption that that incident did not occur, that is, the one that you were presented with? A. Yes. Q. Given the presentation? A. Yes, I think it unlikely without some incident resulting in the nerve being - could it have occurred? It could have occurred, yes or no, it's hard to know. If there had have been progressive deformity without loading of the spine, it can sometimes result in the nerve being compromised. I suppose that's not really the situation that occurred. Your question, could it have happened? Yes, but I wouldn't have said it was necessarily likely. Q. Would minor jarring be included in that consideration sufficient to reignite symptoms such as those presented? DOOLEY: The doctor said exactly the opposite. JOSEPH: I don't think he did. DOOLEY: Yes, he said it twice. JOSEPH: Your Honour is ruling against me? HIS HONOUR: Put it to him. I think the doctor has clearly understood the concept. I felt he gave a clear answer, but if you want to clarify again with him, go ahead. JOSEPH Q. Doctor, putting aside the major event of 2010, would minor jarring in a person who has had the presentation such as that in March 2009 increase the possibility or probability of a further progress of the pathology causing compression? A. The concern is the symptoms in 2009 are not specifically indicative of the L5 nerve symptoms. They may or may not have contributed, but they are not really in the distribution of L5 nerve. In view of that I would discount them as being specifically onset of L5 nerve problem." (T 772-3) (emphasis added)

PART I - OTHER MEDICAL EVIDENCE 181The medical evidence of Drs Bracken, Hopcroft, Grant, Coolican, Lorentz and Lee is discussed below. In general terms, there was a substantial degree of uniformity in the medical opinions of Drs Whittaker, Ferch, Grant, Hopcroft and Bracken upon the orthopaedic issues concerning the nature and cause of the plaintiff's low back injury. Their opinions, individually and collectively, disputed many of Dr Harvey's findings, observations and opinions.

Dr Barry C Bracken, Orthopaedic Surgeon 182The plaintiff was examined by Dr Bracken at the request of his solicitors on 27 July 2011. Dr Bracken wrote a report of that same date. 183The plaintiff told Dr Bracken that prior to the accident he had never had any problems with his back (Exhibit A, p 96), although Dr Bracken did note a history of "minor injuries": Exhibit A, p 100. 184Dr Bracken noted the plaintiff's complaints in respect of constant low back pain, intermittent pains in the right groin and upper anterior thigh, and intermittent pain and burning discomfort in the left leg which radiated from the buttock through the thigh to the calf and the lateral aspect of the ankle joint. The plaintiff also complained of constant numbness of variable degree affecting his heel, the tread of the foot and all toes. He said that his left leg pain was increased by prolonged sitting and driving: Exhibit A, p 98. 185Dr Bracken's diagnosis in his report was that the accident "...not only aggravated and accelerated degenerative changes at multiple levels in his low back but also caused a disc prolapse in his left side at L4/5 level with conduction defect in his left L5 nerve root". Dr Bracken also noted a "marked reduction in range of motion in his spine" as well as residual fixed scoliosis centred on L2/3. He concluded there was a permanent loss of efficient use of the right and left legs at and above the knee. 186When the plaintiff attended on Dr Bracken on 16 August 2013, he continued to complain of constant pain in his back and left leg, as well as numbness over the front of both thighs. He additionally complained of loss of power in his left leg, especially in the foot and calf: Exhibit A, p 151. 187In his report of the same date Dr Bracken stated that the opinion expressed in his report dated 27 July 2011 "remains totally valid in respect of diagnosis and causation". Further, that: "It is evident that his injury on 1 July 2010 not only aggravated and accelerated degenerative changes at multiple levels in his low back but also caused a disc prolapse on the left side at L4/5 level with conduction defect in his left L5 nerve root." ... "In my opinion the man's severe residual disabilities in respect of his back and his left leg are liable to continue in much the same manner as they currently present." ... "In my opinion Mr Campton is now incapable of undertaking any meaningful work and this will be a permanent state of affairs." (p 154) 188Dr Bracken was cross-examined on 19 March 2014. Dr Bracken was asked whether he based his diagnosis of a disc prolapse on the basis of an MRI scan. Dr Bracken stated that he relied both on the MRI and clinical examination: T 700:15-20. He accepted the general proposition that a disc prolapse can be long-standing and asymptomatic: T 700:25-30. 189It was put to him that the disc prolapse in question could have pre-existed the accident. Dr Bracken stated: "... I think it's unlikely": T 700:45-701:6. 190Subsequently in cross-examination, Dr Bracken emphasised the plaintiff's history, stating: "Well I pointed out the third paragraph of the first page ... where he denied having any problem with his back. I also noted he played A grade golf, surfed and he was an avid cyclist, so his back was in pretty good shape functionally." (T 704:1-5) 191Mr Joseph continued to cross-examine on the degenerative changes: "JOSEPH: Now my question to you is, firstly, how important is that history to you in making a diagnosis as to what happened or what happened in this accident, that is, no pre-existing back pain symptoms? BRACKEN: I think it helps interpret the physical and historical and radiological features of his presentation, brings them all together." (T 704:25-30)

Dr A G Hopcroft, General Surgeon (Orthopaedics) 192Dr Hopcroft is a general surgeon (orthopaedics). He saw the plaintiff at the request of his solicitors on 1 September 2011. 193In his report dated 1 September 2011, Dr Hopcroft set out the history of accident and the plaintiff's treatment. He also set out MRI scan results performed on 20 July 2010. 194Dr Hopcroft noted that the plaintiff remained working for a time using Panadeine Forte on a four-hourly basis. He was put on light duties for one day following an MRI scan. On that day he was limping, and after he met with the safety officer and occupational health inspection he was sent home, although he wanted to return to underground mining duties home. He then consulted Dr Ferch on 5 August 2010. 195Dr Hopcroft referred to a review of the plaintiff on 13 September 2010 following the microdiscectomy at the L4/5 level with an L5 neurolysis. He noted the forms of post-operative treatment that had been administered to the plaintiff (including facet joint injunctions with local anaesthetic and hydrocortisone). 196Dr Hopcroft referred to an MRI scan performed on 14 April 2011 and noted Dr Ferch's opinion that he may be a candidate for lumbar spinal surgery. 197Dr Hopcroft recorded the plaintiff's account of having been unable to return to home maintenance chores such as lawn mowing and gardening as his home was surrounded by steep inclines. 198He noted that he continued to complain of severe back pain and ongoing numbness in his left heel and first and second toes, as well as left foot drop. He also noted that the plaintiff had a twist in his spine convex to the left. He obtained a history that he had been unable to return to his previous activities of golfing, cycling and surfing. 199Dr Hopcroft concluded: "This patient has suffered a significant aggravation to a low grade pre-existent asymptomatic lumbar spondylitic condition by way of the work related injury in which he incurred acute wedge compression fracturing of L2 and L3 with narrowing of the L2/3 disc, and L4/5 disc protrusion to the left with left sided sciatica. Those injuries are entirely consistent with the mechanism of the injury." (Exhibit A, p 107) 200He concluded: "This patient is totally unfit to contemplate a return to the underground mining industry and I believe is totally unfit to return to the workforce in any role. Those restrictions come about from the work related injury of 1 July 2010. The patient is certainly unfit to return to any duties of an underground coal mining deputy. His prognosis is grim as it is unlikely that he will ever reach a pain-free status, and he will have to take great care into the future avoiding protracted standing, protracted sitting, or repetitive bending and lifting activities." (Exhibit A, p 107) 201Dr Hopcroft also wrote a report on 22 July 2013, based on his examination of the plaintiff undertaken on the same date. He noted that he had again undergone surgery in April 2013. 202Dr Hopcroft recorded that the plaintiff continued to complain of significant and ongoing numbness in his left leg involving his great toe, heel and posterior thigh, along with marked weakness in his left leg. He also noted that he had extensive numbness down the anterolateral aspect of both thighs. 203Dr Hopcroft's opinion was that "...there is a direct relationship between his symptoms and his work-related incident": Exhibit A, p 149. He also noted that the plaintiff now has major restrictions in all activities of daily living, and is now dependent on his wife to assist him with showering, drying, dressing and transport requirements. 204In his report dated 22 July 2013, Dr Hopcroft also stated: "The patient is totally incapacitated in contemplating any return to work, and should never contemplate a return to mining activities." (Exhibit A, p 149) 205Mr Joseph cross-examined Dr Hopcroft on 19 March 2014. Mr Hopcroft, when cross-examined about "the pre-existing pathology that the MRI ... demonstrates" responded by stating, inter alia "... if this was a degenerative problem in the patient's L4/5 disc, why is the disc bulging left laterally?" T 702:5-10. 206Mr Joseph put to Dr Bracken and to Dr Hopcroft that a report of Dr Millons in relation to an incident that occurred in April 2007 would be consistent with the plaintiff having had symptoms derived from degenerative changes in his back. But when asked whether the examination in question undertaken by Dr Millons was consistent with what might be said to be an aggravation of degenerative change, Dr Hopcroft replied: "No, I can't agree with that at all. I mean, you have to ignore the history of the injury and the onset of the symptoms to give an affirmative answer to that question. This man had a significant, recorded injury with a [sic] immediate problems of back pain and left leg symptoms. If you ignore that and you ask would the general population produce this picture, well, in the general population you may get an occasional patient presenting like that. But in this particular patient, I don't think it is a sequitur." (T 708:15-22) 207Dr Hopcroft said that he was prepared to accept that symptoms in 2007 could have been due to an aggravation of a pre-existing degenerative change in the low back: T 708:25-32. 208When asked further questions as to the possibility of symptoms arising from pre-existing degenerative changes at T 712-715, Dr Hopcroft said: "What is important in this man, he developed a permanent motor deficit in the left leg which correlates with compromise in left L4/5 interforamen, and the only apparent explanation of that is an injury that immediately preceded the onset of the left leg symptoms which progressed to foot drop and have remained permanent and this is what prompted his neurosurgeon to intervene." (T 715:15-22)

Dr John M F Grant AO OBE, Consultant Neurosurgeon 209The plaintiff was examined by Dr John Grant on 2 June 2011 and 26 April 2012 at the request of Coal Mines Insurance. 210In his report dated 3 June 2011, Dr Grant stated that the plaintiff had suffered a disc prolapse at the L4/5 level as a result of the accident, which also resulted in nerve root damage. Dr Grant observed that the plaintiff continued to evidence a neuropathic pain which was the result of changes at both the L5 nerve root and the S1 nerve root. He was also of the opinion that the accident resulted in an aggravation of a pre-existing degenerative spondylitic state in the lumbar spine: Exhibit A, p 61. 211In respect of the plaintiff's work capacity, as noted above, Dr Grant stated that "Mr Campton is not fit for work. He is permanently disabled...In my opinion, Mr Campton will not be able to return to work": Exhibit A, p 62. 212Following his re-examination of the plaintiff on 26 April 2012 on behalf of the defendant, Dr Grant observed that the plaintiff "still evidences sensory loss in the left lower limb" and "marked weakness of dorsiflexion". 213He also stated: "At this stage Mr Campton is not fit for work of any nature": Exhibit A, p 67. 214In respect of re-exploration of the plaintiff's previous surgical proceedings, Dr Grant stated in his report dated 29 November 2012 that: "...if the L4/5 segment was stabilised in Mr Campton's state the fact that he has quite marked degenerative changes at the L5/S1 level would render him liable to the development of ongoing pain syndrome due to exacerbation of apophyseal joint changes at this level." (Exhibit A, p 70)

Dr Myles Coolican, Orthopaedic Surgeon 215The plaintiff was examined by Dr Coolican on 2 September 2013, at the request of the defendant. 216In his report dated 20 September 2013 (Exhibit 28(a)), Dr Coolican noted that the plaintiff said that he had no further symptoms from his right ankle. In Dr Coolican's opinion, the plaintiff's left knee, right knee and right ankle all have "minor wear and tear changes" that "would not at this time render him unfit for underground mining" p 5. Further, in his opinion, it was unlikely that the plaintiff would have suffered a major disability with his right ankle from ongoing underground mining work. 217Dr Coolican further stated: "It is difficult to make an accurate assessment of the rate of deterioration that one could expect in Mr Campton's left knee following his arthroscopy and meniscectomy by Dr Berton. However, I would estimate that if he had continued to work full time as an underground coal miner from Dr Berton's arthroscopy in August 2008, I would have anticipated that somewhere between five and eight years following the surgery he would be unable to work because of the left knee. There would be a compounding effect from the problems with the right knee and right ankle and as an estimate I would suggest that Mr Campton would have had to cease work because of his left knee somewhere in the vicinity of January 2014." (p 5) 218Dr Coolican additionally noted that this would have restricted the plaintiff's enjoyment of recreational activities. 219Importantly, in a further report dated 9 January 2014 (Exhibit 28(d)), Dr Coolican noted that having regard to recent imaging studies and radiographs, in his opinion, the plaintiff "would have been able to work underground as a miner until retirement at age sixty-five". Notwithstanding, Dr Coolican's opinion that it was unlikely that the plaintiff's knees would limit his working life, there was considerable cross-examination of the plaintiff and Dr Whittaker on past attendances for medical attention to his knee(s). 220In his report dated 4 February 2014 (Exhibit 28(e)), Dr Coolican again expressed his opinion that the plaintiff's "wear and tear changes in both knees are modest" and, as such, "are unlikely to prevent him from working as an underground miner". He additionally expressed an opinion that MRIs and radiographs of both knees demonstrated minor osteoarthritic changes.

Dr Ivan Thomas Lorentz, Consultant Neurologist 221Dr Ivan Lorentz reviewed the plaintiff's medical file at the request of the defendant's solicitors. In his report dated 16 September 2013 he set out his opinions on the plaintiff's condition. 222Dr Lorentz expressed the opinion that the plaintiff suffered from a mild generalised peripheral neuropathy, due to poorly controlled diabetes. In his opinion, he said this would prevent the plaintiff returning to his previous employment: "I believe that generalised peripheral neuropathy would be likely to prevent the Plaintiff from being fit for his previous employment as an underground coal miner." (Exhibit 27, p 6) 223However, he stated that the weakness in the plaintiff's left foot was unlikely to have been caused by diabetic neuropathy. 224As to the plaintiff's attendance on Dr Whittaker on 10 March 2009 regarding his left knee, Dr Lorentz addressed the issue of causation. He considered that the symptoms presented by the plaintiff on that occasion "most likely represented an L4/L5 radiculopathy on the left side. It is less likely that these symptoms and signs were due to a diabetic momoneuropathy or compression neuropathy" (emphasis added). 225As to the plaintiff's right hand symptoms and the nerve conduction study conducted in December 2005 by Dr Katekar, Dr Lorentz stated that although this could be due to compression of the medial nerve at the carpal tunnel, it was more likely to be due to natural causes or diabetes than positioning due the operation. 226Dr Katekar wrote a report dated 29 March 2012 which referred to an underlying generalised peripheral neuropathy as well as denervation in L5 distribution. In Dr Lorentz's opinion, the "numbness in both feet is likely due to a diabetic peripheral neuropathy", although an alternative and less likely explanation would be an L5 radiculopathy due to diabetes. 227In respect of the numbness to the lateral aspect of both the plaintiff's thighs, he considered this was due to irritation or compression of the lateral cutaneous nerve of both thighs, that is, meralgia paresthetica. He concluded it was possible that these symptoms were caused by one or both of the operations undertaken by Dr Ferch. 228On the question of the cause of the plaintiff's foot drop, Dr Lorentz expressed the opinion that it could be caused by a lesion of the L5 nerve root on the left hand side, a likely consequence of the accident and/or subsequent operations. 229In respect of the plaintiff's work capacity, Dr Lorentz stated: "I believe that generalised peripheral neuropathy would be likely to prevent the plaintiff from being fit for his previous employment as an underground coal miner. As far as his restrictions are concerned, in light of his generalised peripheral neuropathy and diabetes and the progression of such diseases, in my opinion, his progressive peripheral neuropathy could make him unfit to work eventually in the open as well as underground. I anticipate that there will be degeneration of his generalised peripheral neuropathy and/or the diabetic condition and this would result in the plaintiff becoming unfit for full duties as a coal miner at some time in the future. In my opinion, this condition has reached the stage when he would have to cease as a coal miner." (p 6) 230Dr Lorentz attended the conclave with Drs Whittaker and Hopcroft. In the report of the conclave dated 6 February 2014, it was recorded: "6. It was felt unanimously that on the balance of probabilities the patient's Type 2 diabetes will have no impact on his future employment to the patient's express desire to work until the age of 70 and has had no effect on his employment in the past. His General Practitioner, Dr Whittaker, stated that there was no likelihood of the patient's diabetes having an effect to cause early retirement but his life expectancy may be reduced by 10 to 15% after the age of 70 ..." (Exhibit B, p 9) 231In paragraph 20 of the conclave report it was stated: "It was unanimously accepted that this patient's diabetic status would not have been a cause of his inability to return to his previous employment as an underground coal miner as he had no constant symptoms of peripheral neuropathy before his back injury and controlled or suboptimally controlled diabetes mellitus does not prevent a patient from working in underground mining."

Dr Lee, Consultant Psychiatrist 232The defendant referred the plaintiff to Dr Leonard Lee for psychiatric assessment, which was conducted on 28 August 2013. 233In his report of the same date, Dr Lee considered that the plaintiff's prognosis was good and that he did not suffer from a psychiatric disorder. He noted: "[the plaintiff] tells me that he was previously quite depressed but that this has significantly improved with treatment and I would have seen this as a reaction to his physical state": Exhibit 28, p 3. Dr Lee was of the opinion that he did not require treatment.

PART J - DIAGNOSIS: DISPUTED ISSUE AS TO ACCIDENT - CAUSED PATHOLOGY 234The defendant's affirmative medical case in relation to the plaintiff's orthopaedic injuries/disabilities essentially consisted of the evidence of Dr FJ Harvey. 235This Part supplements the summary of Dr Harvey's report set out in Part F and concentrates upon the differences of opinion expressed by Dr Harvey and Dr Ferch and the underlying bases for such differences. 236Dr Harvey's first report of 30 October 2012 set out relevant matters of history, the plaintiff's complaints, past health and findings on examination together with the results of computerised imaging and nerve conduction studies. 237Reference was made at p 7 of that report to Dr Ferch's examination of the plaintiff on 5 August 2010 under the subheading in the report, 'Diagnosis'. Dr Ferch at that time reported "mild weakness at dorsiflexion of the left great toe" but that reflexes were brisk and symmetrical - Dr Harvey then stated: "The evidence that he had radiculopathy does not appear to have been very convincing." 238This represents the point of departure between the opinions of Dr Ferch and that of Dr Harvey on the plaintiff's neurological symptoms. The plaintiff's symptoms, clinical findings and radiological findings provide an important basis upon which the validity of either opinion is to be assessed. 239In his report of 26 November 2012, Dr Harvey again expressed doubts as to the opinion of the treating neurosurgeon, Dr Ferch, as to evidence he said existed of a radiculopathy or compression of the nerve root at L4 causing, inter alia, weakness in the left lower limb. In that respect Dr Harvey wrote: "I was unconvinced that Mr Campton had significant weakness in the left lower limb as has been claimed. I have given my reason for this in my report dated 30/10/12. I find it very difficult to accept that there can be very significant neural compression when there is a brisk left knee and ankle jerk." (Exhibit 25, p 1) 240Dr Harvey adhered to that view in his first report of 16 September 2013 (at p 6). He also challenged the proposition that there was evidence of peripheral neuropathy. This issue was again the subject of further comment by Dr Harvey in his report of 20 September 2013 (at p 3). 241The question as to whether the plaintiff suffered a compression of the L4 nerve due to the lumbar disc bulging at the L4/5 level is a significant one. It was Dr Ferch's opinion that such compression had occurred due to the jarring trauma, with its impact on the L4/5 disc level precipitating left lower limb symptoms, in particular, weakness and later the development of foot drop. The basis for his opinion is further discussed below. 242Whilst Dr Harvey said he was "unconvinced" that the plaintiff had any "significant weakness" in the left lower limb, Dr Ferch concluded that the history, clinical findings and nerve conduction studies provided support for his diagnostic conclusion of left L4/5 disc prolapse with L5 radiculopathy. That opinion was shared by Drs Whittaker, Grant, Hopcroft and Bracken. 243Following the accident, Dr Ferch, on his initial examination on 5 August 2010, obtained a history from the plaintiff of left leg pain which was consistent with L5 nerve root compression. There was no history of the plaintiff having symptoms of that kind preceding or leading up to the accident. 244Importantly, on his first examination, Dr Ferch identified specific symptoms and signs that supported his diagnosis of L4/5 disc prolapse and L5 radiculopathy. They included: (1) The plaintiff's history of ongoing pain radiating from his low back into his left buttock, down the posterior aspect of his thigh; (2) Numbness of his lateral toes and the dorum of his foot; (3) Flexion precipitating back pain and aggravation of his left leg pain; (4) Neurological examination revealed mild weakness of dorsiflexion of his left great toe. 245Dr Ferch concluded that having regard to all of these matters, including the prolapse of the L4/5 disc in association with radiological findings of joint hypertrophy narrowing the lateral access, these all indicated that the disc lesion to which he referred was likely to be irritating the existing L5 nerve root and that that was "consistent with Ian's left leg symptoms". 246Dr Ferch's confidence in his diagnosis in this respect was such that it was the basis for his decision to undertake surgery on the plaintiff on 13 September 2010 for the purpose of removing the compression on the L5 nerve root, that being in his view the cause of the L5 radiculopathy. 247It is to be noted at this point that Dr Harvey in concluding, contrary to Dr Ferch, that there was not, in his opinion, very convincing evidence of radiculopathy, specifically made reference to only one particular or discrete observation made by Dr Ferch in his report of 5 August 2010, namely, what he referred to as "mild weakness of dorsiflexion of the great toe". Dr Harvey, for reasons unexplained, made no reference to the significance of all of the clinical observations that had been recorded by Dr Ferch in his report (being those set out in [244] above) and relied upon as supporting his conclusion as to the radiculopathy and the causes of it. Dr Ferch's diagnosis was based upon all of the matters set out in sub-paras (1) to (4) in paragraph [244] above. 248In a case where a treating neurosurgeon makes such a diagnosis of compression of a nerve root, another specialist who disputes the diagnosis would be first expected to have identified all relevant symptoms, signs and findings. However, as noted above, Dr Harvey did not identify or refer to all the signs and symptoms identified by Dr Ferch as supporting his diagnosis and his decision to operate. 249Dr Harvey's opinion and challenge to Dr Ferch's diagnosis (which diagnosis was shared or supported by other examining specialists) in my assessment was not one that brought into account all the matters referred to in paragraph [244] above. For that reason, Dr Harvey has not demonstrated a consideration of the matters that were central to Dr Ferch's analysis. 250Prior to the surgery performed by Dr Ferch on 13 September 2010, as earlier noted, the plaintiff was seen for a second opinion the month before by Dr Michael J Edger, Neurosurgeon. In his report dated 23 August 2010, Dr Edger noted the plaintiff's medical history, symptoms, clinical findings and MRI scan results. He recorded: "He presents his symptoms of predominantly numbness in the left foot, together with pain, and weakness in the left foot and in difficulty in co-ordinating left foot movements. There is also discomfort through the posterolateral thigh and the calf of the left leg. The symptoms have been present since the injury. ... There are no right lower limb symptoms, there have been no previous episodes of lower back pain or sciatica in the left leg ... he walked with a slightly shuffling gait ... he does appear to be slightly high stepping with the left foot ..." 251After noting the MRI scan which, inter alia, showed L4/5 prolapse encroaching towards the foramen at that level, Dr Edger stated: "I explained to Ian that the treatment I would also recommend would be a lumbar nerve root decompression in the form of microdiscectomy ... I therefore fully concur with Richard Ferch." 252Dr Edger's opinion was entirely consistent with that of Dr Ferch and is inconsistent with that expressed by Dr Harvey.

Conclusion 253The defendant did not dispute that the plaintiff was permanently incapacitated and unable to return to work on pre-injury duties. It sought to argue that the plaintiff was partially, not totally, incapacitated for work. Given the unequivocal opinions to the contrary as expressed by Drs Whittaker, Ferch, Grant, Bracken and Hopcroft, that left the defendant with a challenge - to establish that Dr Harvey's assessment was the correct one. 254Dr Harvey's opinions (a) that the plaintiff did not sustain a disc prolapse at the L4/5 level due to the accident, (b) that the sensory loss said to have been suffered by the plaintiff did not correspond with peripheral neuropathy, and (c) that he was unconvinced that the plaintiff had significant weakness in the left lower limb, all conflicted with the findings and opinions of the specialist neurosurgeons, Dr Ferch and Dr Grant, and with the findings and opinions expressed by Dr Whittaker, Dr Hopcroft and Dr Bracken. 255For reasons earlier stated, the medical evidence in the plaintiff's case, which I accept, overwhelmingly established that the plaintiff sustained a prolapse of the L4/5 disc with associated compression of the nerve root affecting the left lower limb. 256I do not accept the evidence of Dr Harvey that the traumatic effects of the subject injury resulted merely in an aggravation of prior degenerative changes without causing the prolapsed L4/5 disc. 257The neurological symptoms in the left limb, including sensory loss and symptoms, arose from the compression of the L4/5 nerve root as a consequence of the prolapsed disc. 258Finally, I note in this respect, Dr Grant, neurosurgeon, retained by the defendant, was unequivocal in his two assessments of the plaintiff in that he concluded that he was and would remain totally incapacitated. 259I have therefore concluded: (1) Dr Harvey's opinion that the plaintiff's accident resulted in an aggravation of prior degenerative changes without causing the prolapse of the L4/5 disc is inconsistent with the history of the onset of low lumbar symptoms and the occurrence of neurological deficit associated with nerve root damage. (2) Dr Harvey's assessment of the extent of the plaintiff's symptoms, disability and incapacity is undermined by his conclusion referred to in (1) above as to the nature of the injury that was sustained by the plaintiff. His opinion as to the level or extent of the plaintiff's incapacity was advanced by way of assertion upon the basis that the plaintiff did not in fact sustain a discogenic lesion in the accident. (3) In addition, Dr Harvey's attribution of the plaintiff's symptoms, at least in part, to what he termed "non-organic" factors, is not supported by the evidence. A review of the treatment records and medical reports does not record any "non-organic" factors present as observed by any other medical examiner. No treating doctor, and no other medical examiner, expressed or suggested that non-organic factors have or do play a role in the plaintiff's clinical condition.

(a) Dr Whittaker 260Dr Whittaker in his report of 20 December 2011 set out in detail the history taken, findings on examination on the plaintiff's condition, details of treatment, including surgery and his opinion as to injury, pain and discomfort and restrictions arising from the subject injury. At page 8 he stated: "... Mr Campton continues to experience the following: a) Severe lower back pain, which is unremitting and significantly impairs his ability to sit, stand, move, walk and perform even light activities. b) Persistent sensory impairment in the left leg related to the L5 nerve root injury. c) Motor impairment of the left foot, causing a weakness of dorsiflexion of the left foot (ie a 'foot drop') which impairs his gait and causes his toes to catch on the ground when walking. d) A permanently altered gait with lumbar scoliosis and pelvic tilting due to the instability of the L4/5 region and the muscular changes that have occurred secondary to the lower back injury. e) A degree of psychological injury due to the long term effects of pain, disablement and the loss of his occupational abilities. Mr Campton has been unable to return to any form of employment. Despite the treatment outlined above, the degree of restriction imposed by his injury has rendered him unable to work in any capacity for which he is reasonably qualified by experience or training ..." 261In the same report, Dr Whittaker considered that the plaintiff had reached "... the maximal medical improvement that can be reasonably expected from this injury". He then specified five long term restrictions in relation to lifting capacity, sitting endurance, travelling by car, maximal walking distance and standing endurance. He stated the restrictions were permanent. The physical loss of capacity or function was additional to, though related to, what Dr Whittaker referred to as the plaintiff's "chronic severe pain from his lower back": p 8. 262Dr Whittaker completed a Claim for Total and Permanent Disablement Benefits (Medical Attendant's Statement) form dated 13 March 2012 (Exhibit 2). In it he stated: "... I don't believe that Mr Campton will ever be able to work in any capacity from today's date 13 March 2012. He has not been able to be retrained for alternative occupations". 263He also wrote: "Mr Campton has a permanent severe incapacity that renders him unable to work in any capacity for which he is reasonably qualified by education, training or experience." 264In cross-examination, Dr Whittaker said that he knew the plaintiff had sought some form of alternative employment following the subject injury. He said: "He did think he was fit for some work yes, but he failed to find work, which was the cause for my opinion that he was unlikely to find work." (T 461) 265Dr Whittaker during cross-examination stated: "Well, my opinion was that it was very unlikely that he would be able to achieve work in the open labour market, given the significant physical restrictions that were placed upon him. Coal Mines Insurance, I note, I spoke to them on 7 December 2011 and they - or, sorry Mr Campton spoke to them and they had seemed reluctant to arrange a vocational assessment." (T 462) 266Dr Whittaker specified the basis upon which he signed the claim form for Total and Permanent Disablement Benefits (Exhibit 2) as follows: "A. Well, my filling the certificate was on the basis of my assessment of his likelihood of being able to achieve work which is not based on a trial of work seeking in the community. Like, my assessment was made that he was not likely to be able to obtain work and he did have a permanent disability that rendered him unlikely to work in a position of which he was reasonably or suitably qualified." (T 466) 267Dr Whittaker said that he had issued certificates for restricted duties and hours (in particular on the basis of part-time work, 4 hours per day, 3 days per week) and whilst he said he was not an expert in occupational rehabilitation, he did not know what the job market was for 12 hour per week jobs: T 467. He said the plaintiff was unfit for any longer hours of work per week. 268Dr Whittaker recorded in his medical notes on Tuesday 20 November 2012, that the plaintiff: "Has had an assessment with vocational assessor in Sydney and they cannot identify any suitable work for him given deterioration over time and pending surgery." (Exhibit 42, p 427) 269He confirmed in cross-examination that in his view the plaintiff was totally unfit for work in the 12 months following the accident: T 470. As to the proposition put to him that the plaintiff was fit for full-time selected duties from about August 2010 until his second operation, Dr Whittaker responded "No I disagree": T 471. 270In his clinical notes it was recorded that on 28 November 2011, he reviewed the plaintiff's back condition and: "Discussed vocational assessment - given has reached max medical improvement. Will not return to any sort of physical work": Defendant's Tender Bundle, Vol 1 at p434. 271Following the plaintiff's second operation (8 April 2013) and a period of rehabilitation, Dr Whittaker was asked "Have you continued to consider the plaintiff restricted for duties or totally unfit?" He responded "... I've considered him completely unfit since the operation": T 473. 272Dr Whittaker added: "A. Yeah, I believe that he's unfit for work in his current state." (T 473) 273He said his condition was "fairly static": T 473. 274The proposition referred to in [269] above was put a second time to Dr Whittaker in cross-examination: "Q. Well I want to suggest to you, doctor, that in fact he has been fit for full-time suitable duties since about August - since about May 2013, do you agree? A. I disagree." (T 473) 275On the subject of the plaintiff's work capacity, Dr Whittaker completed a questionnaire provided by Coal Mines Insurance Pty Limited on 7 July 2011. In response to the question "Will the patient be able to return to work on pre-injury duties?" Dr Whittaker ticked "No". When asked to specify the "current issues impacting on the plaintiff's ability to return to work on suitable duties", Dr Whittaker responded: "Permanent incapacity due to chronic low back pain, neurological symptoms on left foot. Low level of physical capacity." (Exhibit A, p 4) 276In his report dated 20 December 2011, Dr Whittaker recorded the following observations and findings: "Mr Campton has been unable to return to any form of employment. Despite the treatment outlined above, the degree of restriction imposed by his injury has rendered him unable to work in any capacity for which he is reasonably qualified by experience or training." (Exhibit A, p 8) ... "His occupational prognosis is that he is unlikely to ever work again in any capacity for which he is reasonably suited by education, experience or training." (Exhibit A, p 9) 277Dr Whittaker wrote a report dated 12 August 2013 (Exhibit A, at pp 13-17). In it he observed that the plaintiff had been unable to return to work since the accident and that "he is unlikely in my opinion to be capable of any work in the future". He wrote: "...It is my further opinion that Mr Campton has been rendered permanently unable to work as an Underground Coalmining Deputy by the injuries that occurred on 1st July 2010. The inherent duties of his occupation required him to walk long distances over uneven rough ground on slopes in an underground coal mine. Despite extensive treatment including two surgical procedures, physical rehabilitation by physiotherapy and psychological rehabilitation, Mr Campton's capacity to perform the duties of his occupation has not been achieved, and in my opinion will never be achieved in the future." (Exhibit A, p 15) 278Additionally, in the same report at p 15, (Exhibit A) he stated "In my opinion, Mr Campton will continue to be permanently incapacitated by his injury". Dr Whittaker noted that although the plaintiff had been assessed by rehabilitation consultants and been provided with job seeking assistance by Coal Mines Insurance since his injury, no suitable work had been able to be identified.

(b) Dr Bracken 279As earlier noted, Dr Bracken concluded that as a direct result of the accident the plaintiff was suffering from permanent impairment of his back: Exhibit A at p 100. Dr Bracken examined the plaintiff on 27 July 2011. In his opinion, as expressed in his report dated 27 July 2011, the condition of the plaintiff's spine had appeared to have reached maximum medical improvement: p 100. Dr Bracken did not consider that the plaintiff would be fit to return to work. In this respect, he stated: "In my opinion Mr Campton is now permanently disabled and unfit to do the work of an underground miner and Deputy. In my opinion he will in future be unemployable because of his back condition." (p 101)

(c) Dr Hopcroft 280As earlier noted, Dr Hopcroft concluded on 1 September 2011: "This patient is totally unfit to contemplate a return to the underground mining industry and I believe is totally unfit to return to the workforce in any role". (Exhibit A, p 107)

(d) Dr Grant 281Dr Grant in his report, dated 26 April 2012, following his re-examination of the plaintiff on that date (his initial examination had taken place on 2 July 2011) addressed, inter alia, four questions put to him by Coal Mines Insurance Ltd. Question 4 related to "Fitness for work, either work or light duties". Dr Grant replied: "At this stage Mr Campton is not fit for work of any nature". (Exhibit A, p 67)

Consensus of Medical Opinion on Plaintiff's Work Capacity 282The evidence of Drs Whittaker and Ferch established that the plaintiff has suffered symptomatically and functionally from a progressive and disabling condition as a result of the disc prolapse to the L4/5 level with associated compression of the L5 nerve root. Treatment by way of surgery on 13 September 2010 was unsuccessful in ameliorating painful low back symptomatology and left leg pain. Dr Ferch established that prior to the second operation instability at the L4/5 level was progressive. 283The surgery that was performed on 8 April 2013 failed to eliminate on an ongoing basis the plaintiff's disabilities and symptoms. These include low back symptoms and permanent disabilities by way of loss of power of dorsiflexion of the left foot, loss of left ankle reflex and a continuing chronic pain syndrome associated with the injury to his lower lumbar spine sustained in the subject accident. These disabilities, in combination, on the evidence, for all practical purposes, in my assessment, have rendered the plaintiff permanently and totally disabled. 284The plaintiff has been treated over a lengthy period by Dr Whittaker and Dr Ferch. Both were impressive witnesses who clearly articulated the nature and reasons for treatment and the nature and implications of the plaintiff's underlying pathological condition. 285Their evidence, in particular their opinions, strongly support the conclusion that the plaintiff is permanently incapacitated for all forms of employment. 286The assessment and opinions of Dr Whittaker and Dr Ferch along with those of the specialists, Drs Grant, Hopcroft and Bracken, establish: (1) The plaintiff suffered a prolapse of the L4/5 disc with nerve root compression as a result of the trauma in the accident. (2) The plaintiff is permanently disabled as a result of injuries sustained in the subject accident. (3) The plaintiff's incapacity for work since July 2010 has been, and remains, total and permanent. 287Opposed to the five opinions expressed by the abovementioned five medical specialists that establish the plaintiff's total and permanent incapacity, is the opinion of Dr Harvey, the only medical evidence adduced by the defendant on that issue. 288For reasons discussed in Part J, I do not accept the opinion expressed by Dr Harvey as to the nature and cause of the plaintiff's injury or his opinion on the issue of the plaintiff's working capacity.

Plaintiff's Submissions 289Mr Dooley of Senior Counsel, who appeared on behalf of the plaintiff, relied upon the Plaintiff's Outline of Submissions ("Plaintiff's Written Submissions") dated 21 March 2014, supplemented by his oral submissions on 21 March 2014.

Liability 290Reliance was placed upon the evidence adduced at trial prior to the defendant's admission of breach of duty on the sixth day of the hearing (18 March 2014). The evidence, it was submitted, and I accept, was that the plaintiff on 1 July 2010 was subject to "a severe jarring incident": Plaintiff's Written Submissions at [6]. 291In relation to the nature of the injury sustained, the plaintiff's submissions refer to the diagnosis made by Dr Whittaker before referral to Dr Ferch and to the diagnosis of Dr Ferch which was in accordance with that made earlier by Dr Whittaker. As noted, Dr Whittaker's initial diagnosis was a prolapsed disc at the L4/5 level with L5/S1 nerve root compression: at [9] and [13]. 292The plaintiff's submissions refer to the opinion of Dr Grant and that his opinion accorded with that of Dr Whittaker and Dr Ferch, namely, that the plaintiff had suffered a disc prolapse at the L4/5 level as a result of the accident in July 2010 and that examination revealed marked weakness and significant neurological findings in relation thereto: at [15]. 293It is significant to observe, as noted in the plaintiff's submissions, that Dr Grant anticipated that the long-term prognosis for the plaintiff at the time he saw him was "bad": at [16]. The actual clinical history that unfolded in the years subsequent, as the plaintiff's submissions indicate, confirm Dr Grant's prognosis, a matter to be taken into account in assessing the likely level of symptoms, disability and incapacity of the plaintiff subsequent to the injury prior to and following two surgical interventions undertaken by him. 294The plaintiff's written submissions also refer to other orthopaedic examinations carried out by Drs Bracken and Hopcroft to which I have earlier referred. 295As the plaintiff's submissions observed, in the period between the first and second operation the evidence indicates that the plaintiff was deteriorating but that he had delayed before deciding upon further surgery, identified in the plaintiff's submissions at [27] as a "serious operation". 296The plaintiff's submissions at [28] catalogue a course of history and difficulties suffered by the plaintiff as recorded in Dr Whittaker's clinical notes. 297It was noted that the Joint Orthopaedic Conclave Report (Exhibit B at pp 58-65), concluded, inter alia, that the MRI revealed a very large L4/5 left-sided disc protrusion as well as pre-existing changes at the L2/3 level: at [29]. 298The plaintiff's submissions noted that Dr Ferch confirmed causation in terms of the L4/5 disc lesion and, in particular, the development of acute nerve compression syndrome involving nerve compromise: at [32]. Further, that Dr Ferch confirmed the assessment of neurological deficit and weakness in the left foot as clearly attributable to L5 nerve root irritation: at [33]. 299Finally, on the pathology of the injury it was noted that Dr Ferch established that the plaintiff suffers from a progressive collapse of the L4/5 level secondary to the disc rupture on which he operated: at [37]. 300In terms of disability, the submission was that the plaintiff had suffered significant ongoing disabilities, two operative procedures and continues on pain medication and hydrotherapy (approximately three times a week): at [38]-[40]. 301Most of his pre-injury activities, it was noted, had been significantly curtailed by his injuries. These included golf, fishing, overseas travel, surfing and cycling: at [41]. 302It was submitted that he had lost both his livelihood and the enjoyment that work had previously given to him. 303It was further submitted that it was appropriate to assess the plaintiff as being 60% of the worst case: at [43]. 304On the issue pursued by the defendant as to "credibility", the submissions for the plaintiff contained observations as to the length and nature of the cross-examination of the plaintiff over three days which contained within 333 pages of transcript. The cross-examination was described as "oppressive": at [47]-[48]. 305It was noted that at the end of the second day the plaintiff was manifesting discomfort which he described at T 251 following which the hearing was terminated at that time: at [49]. 306Related to the length and content of cross-examination, it was observed that a very large number of subpoenae had been issued and that documents produced were utilised in cross-examination to cross-examine the plaintiff's lifestyle and finances but that notwithstanding the extensive cross-examination the plaintiff's credit had remained, it was submitted, not only intact but enhanced: at [52]. It was noted that the evidence of the plaintiff's wife supported his evidence: at [53]. 307In respect of many of the shopping transactions about which the plaintiff was cross-examined, attention was drawn to the fact that the plaintiff's evidence was that his two sons had been living with him and that he provided his credit card for their use, a matter relevant to many of the purchases about which the plaintiff was cross-examined: at [55]-[56]. It was noted that the sons had a common interest in boating and fishing. Reference was made to the plaintiff's evidence, confirmed by his wife, that the plaintiff had only ever been on a Quintrex boat that was purchased on two occasions: at [59]-[60]. 308The plaintiff was cross-examined on fishing activities and reliance was placed upon his evidence that he had been on the boat no more than three times for no more than an hour. 309In relation to the other items purchased, it was submitted that, at best, the evidence merely established that the plaintiff had an interest in browsing at stores of interest to him, and buying small items from time to time. Certain other purchases referred to in evidence had been made by his wife or sons. The shopping activities, it was submitted, amounted to no more than a "social outlet" for the plaintiff and his wife: at [64]. 310The plaintiff was also cross-examined extensively on various driving holidays, including visits to sick relatives. It was noted that no suggestion had been made by the plaintiff or his wife that he could not drive distances, but that it was a question of the manner in which that was now undertaken. The evidence establishes that the plaintiff's wife drove much of the time and that there was a need to stop on regular occasions to permit the plaintiff to obtain relief from his back and leg pain: at [65]-[67]. 311It was submitted that the manner in which the plaintiff gave evidence in relation to matters associated with the purchase of items, and of holiday travel, had a ring of truth about it and that the plaintiff's own evidence was of ongoing treatment including medication, attendance for hydrotherapy and physiotherapy carried out in his home: at [73]-[74]. 312In relation to the DVD surveillance material, the plaintiff relied on written submissions at [112], [113], [116], and sqid that the evidence was consistent with the fact that the plaintiff, as Dr Ferch diagnosed, has foot drop. It was submitted that it was significant that the DVD film was not in fact shown to the plaintiff to permit him to comment upon it: at [75]-[77]. It was also submitted that the DVD film shows that the plaintiff was reliant upon his wife for undertaking shopping: at [78]. 313In terms of the plaintiff's presentation in court it was noted that the plaintiff was permitted to stand up and sit down and that it was to be observed that his condition deteriorated both in terms of the manner in which he moved and the difficulty he experienced in entering and exiting the witness box over several days.

Economic Loss Claim 314It was submitted for the plaintiff that all of the doctors, with the exception of Dr Harvey, believed that the plaintiff was totally incapacitated for all forms of work in a realistic sense: at [88]. 315His loss of earning capacity, it was submitted, is set out in Mr Ravagnani's report, Exhibit O, page 52 [7]-[8], and is extremely limited: at [89]. 316In the Joint Vocational Conclave Report (Exhibit B at p 46) Ms Ravagnani, it was noted, stated that the plaintiff will not secure or maintain full or part-time employment. 317The plaintiff's submissions addressed the issue of mitigation of loss. Following the termination of his employment on 6 December 2011 (Exhibit Q) it was observed that the plaintiff sought light work. 318He remained in the employment of the defendant until 23 December 2011 and returned seeking light duties from the defendant some three months following his first surgery. It was observed that the plaintiff's position was that, had light duties been available, he would have attempted it: at [93]. 319It was further observed that the plaintiff has been under the care of the defendant's rehabilitation providers and there was no suggestion that he had not complied with all their reasonable requests: at [94]. 320It was noted that in the period up to 28 September 2011, the plaintiff had been unfit for work (Exhibit J - WorkCover certificates) and thereafter fit for light duties on a part-time basis, that is, 4 days a week, 3 hours per day, lifting no more than 25 kgs, sitting for 20 minutes, standing for 10 minutes, walking for 200 m and travelling of 20 minutes: at [95]. 321It was noted that the plaintiff had made applications for work as referred to in his Evidentiary Statement (Exhibit F, at 31-33), and that he had done so until his second operation was carried out in April 2013: at [96]. 322Since that date it was submitted that the plaintiff had quite properly considered himself to be unemployable: at [97]. 323It was noted that the plaintiff had initially applied for work in March 2012 as revealed in cross-examination and that the plaintiff had kept an eye out on the newspaper for jobs: at [98]. 324It was noted that the plaintiff returned to his general practitioner on 4 January 2012 seeking an unrestricted light duties certificate to look for work. It was noted that it was only through his own intervention that the certificate that had been issued was changed from total incapacity to suitable duties: at [99]. 325It was noted that when he sought the suitable duties certificate, he was said to be "very excited" as to the prospect of getting work again: at [103]. 326In March 2012 he had attended on Whitworths Marine and was advised that there was a job likely to come up. It was noted that in this period the plaintiff had been offered further surgical treatment to deal with his pain and restrictions but that he was attempting to avoid that operation: at [102]. 327It was submitted that in respect of past economic loss the plaintiff was entitled to an award at the maximum figure prescribed by s 151L(2) of the Workers Compensation Act 1987. Reliance was placed upon the calculation in the Plaintiff's Damages Schedule.

Redundancy Payment 328The plaintiff's employment, it was noted, was terminated on 23 December 2011, apparently by reason of the Awaba Colliery Certified Agreement 2008 Termination Clause. It was submitted that Exhibit 51 established that he received an ETP benefit of $6,303.83 and that it was clear that it was not related to the accident: at [106]. 329It was submitted that there is insufficient evidence for the court to deduct the amount of the termination payment from any future economic loss award. The lack of information, it was submitted, was brought about by the defendant's position adopted at trial: at [108].

Future Economic Loss 330The plaintiff's claim was for loss of earnings until at least 70 years of age: at [110]. 331It was submitted that otherwise than for the injuries sustained in the subject accident, the plaintiff was fit and healthy to work until at least the age of 70: at [111]. 332The plaintiff, it was noted, had a strong history of supporting both of his adult sons and his brother and that his wife was no longer working but was looking for work (she has been in receipt of a carer's pension): at [112]. It was submitted that the plaintiff had an extended family who were all in part dependent upon him and his wife for financial support and for the support of their recreational activities. 333It was stated that the plaintiff's evidence was that he had no thoughts of retiring and had not considered himself retired: at [114]. 334Reference to the description of himself as retired on a claim form, it was submitted, was hardly indicative of his intentions as to retiring age. It was submitted that, as at the time of completing the form, it was difficult to conceive of how else he could have described himself as at that time: at [115]. 335It was noted that the DVD surveillance film was taken of the plaintiff before his surgery and that Dr Ferch had noted that it showed that the plaintiff did in fact suffer from foot drop and weakness and that that was clearly displayed in the footage available: at [116]. 336The fact that the plaintiff could bend, it was submitted, was consistent with Dr Ferch's evidence that he encouraged the plaintiff to be active. This was consistent with his attendance at physiotherapy. 337Whilst the Awaba Colliery closed on 23 December 2011, reliance was placed on the evidence of Mr Howe who, following the mine's closure, was transferred to Mannering Colliery and that Mr Fletcher, who was six years older than the plaintiff, had also obtained alternative employment at Mannering Colliery: at [119]-[120]. 338It was submitted that there was information available that Trevor Hines, the Under Manager, had advised that everyone who was a permanent employee would be transferred to the three other mines under the Centennial Group: at [123]. 339As at 23 December 2011 it was noted the plaintiff was 60.5 years of age, contrasted with Mr Fletcher who, at the time of transferring to Mannering, was 66.5 years. 340It was further noted in the plaintiff's submissions that the defendant was in the ideal position to adduce evidence of Mr Fletcher's employment when he ceased work: at [125]. 341It was submitted that the defendant was in an ideal position to produce evidence to refute the possibility of the plaintiff remaining in the workforce until approximately 70 years of age, but chose not to do so: at [126].

Future Work Capacity 342It was submitted that Dr Harvey's view as to partial incapacity ought to be rejected as it was clear from the DVD surveillance material that the plaintiff in fact had foot drop, as confirmed by Dr Ferch. Whilst there was variability in walking, it was submitted that the film demonstrated that the plaintiff displayed foot drop with the leg tending to slide and then flop. 343Dr Whittaker, it was submitted, was in the ideal position to assess the plaintiff in terms of his work capacity and he had come to the conclusion that the plaintiff had done his best to seek employment (before the operation) and, after the fusion operation, was effectively unemployable. 344It was noted that the plaintiff's work can be physical requiring him being on his feet supervising work and to ensure that work was done properly and safely and that, therefore the plaintiff had no realistic work capacity: at [130]-[131]. 345It was noted that Dr Whittaker had been of the opinion as early as 2011 that the plaintiff would be effectively totally unemployable as at the end of 2011: at [132]. 346In respect of the certificates for suitable duties that were given for the period March 2012 to August 2012, it was submitted that the certificates were only for work 4 hours a day and 3 days a week. 347Since the second operation, Dr Whittaker's opinion was that the plaintiff was unfit for work: at [132]-[134]. 348It was submitted that Dr Harvey's report should be viewed with care and that they were designed to minimise the plaintiff's disability, starting from a position of non-acceptance of the plaintiff's complaints as genuine: at [135]. 349Dr Harvey's evidence, it was submitted, was at odds in respect of the "heal and toe test" and that his findings were at odds with the findings of other examiners, including Dr Hopcroft, Dr Bracken, Dr Ferch and Dr Coolican: at [136]. 350It was submitted that the medical practitioners were overwhelmingly of the view that the plaintiff was totally incapacitated for work with references being given in the submissions to the evidence from Drs Whittaker, Grant, Bracken, Hopcroft and the conclave as well as Dr Ferch: at [137].

Use of the Plaintiff's Superannuation in 2012 and 2013 351It was submitted that spending of superannuation money by the plaintiff was consistent with a person who was in receipt of workers compensation benefits and whose wife was on a carer's pension. It was not, it was submitted, evidence of somebody who had sufficient financial resources to undertake retirement: at [140]. 352It was submitted that cross-examination of the plaintiff as to the two additional payments made into his superannuation fund up until the time of ceasing work supported the proposition that the superannuation fund was viewed as inadequate for retirement: at [141].

Cancer - Removal of Benign Cyst 353The plaintiff received treatment for the removal of a basal cell carcinoma from the right forehead performed by Dr Alastair Lilleman. The pathology date requested was 5 May 2011. He also had a basal cell carcinoma removed from the right upper arm on the same date: T 409:30-35. 354In the Supplementary Evidentiary Statement of Mrs Campton, the plaintiff's wife referred to her husband in July 2012 indicating some spots that appeared on the top of his head and that she recalls attending the skin clinic with him on or about 25 July 2012. She could not recall whether this was the first consultation about the problem. She recalled that some form of excision surgery was performed in relation to the spots and that some tests were conducted. She was aware, following the excision procedure, that the test came back negative much to her relief and to her husband. Mrs Campton recalled taking her husband back in about August 2012 for a further check-up. 355Mrs Campton stated that by about the end of August 2012, her recollection was that the wound on her husband's head had healed. 356In the submissions for the plaintiff it was stated that Dr Whittaker's evidence established there was a brief period of emotional upset with no psychological sequelae. 357The plaintiff in re-examination confirmed that he underwent an operative procedure in respect of the basal cell carcinoma on 5 May 2011: T 523. 358The plaintiff further stated that he was "quite happy" to find out that the basal cell carcinoma was benign: T 523. He said that it took three weeks to recover from the excision (T 524) and that he had a cosmetic skin revision carried out on 14 August 2012. 359In cross-examination, the plaintiff said between May 2011 and June 2012 he was not looking for work. It was put to him: "Q. Because of this cancer scare and operation? A. The two operations, yes." 360The submission for the plaintiff was that the appropriate conclusion is that the plaintiff was not incapacitated by the removal of the benign cyst for more than approximately three weeks on the first occasion and perhaps no more than three weeks on the second occasion: at [152].

Moving House 361The plaintiff's submissions referred to matters which, it was submitted, supported the claim for the costs associated with moving house. These included evidence as to his difficulty with stairs (his present house being a two-storey house), his concerns of slipping down the stairs, and his need for a prolonged period in the past to sleep downstairs. A further issue as to the expenditure by him of $16,000 on a Queenslander back room for the premises was said to have arisen out of a suggestion made by a real estate agent who came to the house in 2011 and 2012: at [165]. 362The claims for costs of moving were as set out in Exhibit P, including conveyancing costs ($1,515) and costs in respect of the new purchase ($13,880).

Other Injuries - Interference with Earning Capacity 363The submissions for the plaintiff responded to matters raised in the submissions of the defendant in respect of the left knee and the right ankle as well as the issue of diabetes.

(i) Left Knee 364The plaintiff's submissions addressed the original injury to the left knee in June 2008, the operation on 8 August 2008 and an incident on 6 December 2012 when it is said the plaintiff's left leg collapsed and the problems associated with the leg and not the knee: at [169]-[171]. 365It was observed that the nature of his duties had involved him walking for extended periods, between 40-50 hours per week: at [172]. 366Reliance was placed upon the medical evidence which, it was submitted, established that there was no likelihood of the left knee impacting upon the plaintiff's work life expectancy. In particular, reference was made in this respect to the opinion of Dr Hopcroft as at 24 October 2013 (Exhibit A at p 162) as well as to the two reports of Dr Coolican to which I have earlier referred, namely his reports of 9 January 2014 and 4 February 2014 in which it is stated that the left knee is unlikely to prevent him from working as an underground miner. 367The submission was that there was no evidence that the plaintiff's left knee would have interfered with his capacity to work as an underground miner until the age of 70 or later: at [176].

(ii) Right Ankle 368The plaintiff submitted it was clear that there was nothing wrong with the plaintiff's right ankle: at [177]. In this respect it was observed that the plaintiff's evidence was that he was able to carry out all his work on rough ground without experiencing any problem with his right ankle. He had returned on light duties after the right ankle problem for a short period and then back on full duties. 369I have earlier referred to medical evidence relevant to the defendant's contention concerning the right ankle.

(iii) Diabetes 370On this aspect, the submissions for the plaintiff were, inter alia, that: (i) The unanimous finding of the conclave was that the symptoms that the plaintiff suffers arise from the spine and not "sub-optimally" controlled diabetes: at [186]. (ii) The plaintiff's Type II diabetes will have no impact on his future employment, or to his express desire to work to 70, and has had no effect on his employment in the past. (iii) The foot drop did not result from the diabetic condition but, rather, from the subject injury: at [186]-[187]. 371Dr Whittaker confirmed that the asymptomatic peripheral neuropathy, on testing, was related to impairment or loss of sensation in the left foot consistent with sensation at the L5 dermatome: at [189]. 372Dr Ferch's evidence was that the source of the left foot drop is more typically L5: at [192].

(iv) Prior Injury to the Back 373It was observed in the plaintiff's submissions that although the defendant relies upon the report of Dr Millons dated 24 May 2007, the defendant ignored the fact that Dr Millons participated in the Conclave and at no point suggested that the injury reported on by him on 24 May 2007 had any impact upon the injuries arising from the subject accident: at [196]. 374It was observed that the plaintiff's evidence about the incident in 2007 was that he experienced a mild twist to the back. He described himself as not having any back problems before 2007: at [198]. 375In March 2009, Dr Whittaker investigated the plaintiff for compression neuropathy or possibly diabetic mono-neuritis. There was no further attendance upon him in that regard. Dr Whittaker did not believe that those problems were related to a lumbar disc disease: at [199]-[200]. 376Finally, Dr Ferch, in respect of details in Dr Whittaker's notes, accepted that the findings on 10 March 2009 were most likely due to compression neuropathy and not a pre-existing back condition: at [202].

Life Expectancy 377The plaintiff's submissions noted that Dr Lorentz, in his report of 16 September 2013, advised that uncontrolled diabetes can reduce life expectancy by 15%. The Joint Diabetic Conclave Report (Exhibit B at p 112) suggested a range of 10%-15% reduction in life expectancy after age 70: at [203]. That, however, was dependent upon inadequate control of diabetes. 378It was submitted that the evidence was that the plaintiff regularly attended on his doctor for the control of his diabetes and that he remains under control. It was submitted therefore that there should be no deduction made in respect of any reduced life expectancy above the normal vicissitudes: at [204]-[205].

Personal/Domestic Care and Other Items 379I have separately dealt with these issues and submissions in relation to considering the claim for personal/domestic care and other items.

Medical Issues 380A number of specific matters were raised in the plaintiff's submissions including: (i) Until September 2013, the only expert reports served by the defendant were those of Dr Grant, Dr Millons (2007) and Dr Harvey: at [258]. (ii) Thereafter the defendant set upon a course which could only be driven by its legal representatives to develop an approach to reduce the plaintiff's damages. It was submitted that there was no such case: at [259]. (iii) The defendant had qualified Dr Carter, endocrinologist, on 5 September 2013. His report was not served. It was submitted that it could be inferred that Dr Carter would not have assisted the defendant on the issue of the plaintiff's diabetes having interfered with the plaintiff's earning capacity: at [260]. (iv) The evidence of Dr Harvey was negative from the defendant's point of view on the issues of the likelihood of pre-existing degenerative changes reducing the plaintiff's work life expectancy: at [261]. (v) Dr Coolican had addressed issues in relation to the knees and ankles. Again it was submitted that his reports were negative and provided no support for the proposition that the plaintiff had problems with his knees or ankles that would have affected his working life: at [262]. 381In addition to the above, it was submitted that the report of Dr Lorentz dated 16 September 2013 (Exhibit 27) provided assistance to the defendant on the issue of whether uncontrolled diabetes could reduce the plaintiff's life expectancy by 15%: at [263]. 382It was submitted that the Joint Conclave Reports in relation to the issues of diabetes and orthopaedic issues all were unanimous, apart from one small aspect - that being the description of the onset of the plaintiff's back and leg complaints as being an aggravation of pre-existing degenerative condition or whether it was due to traumatic prolapse and/or spondylolisthesis. It was submitted that for the assessment of damages it made no practical difference: at [264]. 383It was additionally submitted that the issues raised in relation to the right ankle, the left knee, the diabetes and the likelihood of pre-existing changes affecting the plaintiff's work capacity "... were all inventions of lawyers and found no medical support. Having received reports of this nature, this course should have properly been abandoned by the defendant by the end of 2013": at [265]. 384It was argued that the proper course would have been for the Joint Conclave Reports to have been tendered without the need for any cross-examination: at [266]. 385It was further submitted that the extensive cross-examination of the plaintiff was, though lengthy, to little point. It was submitted that it was "... a situation of the defendant looking for a defence where there was none": at [270]. 386A number of other submissions were made in respect of the defendant's conduct of the case in the plaintiff's submissions at [267]-[289] and matters raised therein were relied upon in support of the contention that the court should order the defendant to pay the plaintiff's costs on an indemnity basis after the third day of trial: at [287].

Defendant's Submissions 387The defendant's written submissions dated 23 March 2014 ("Defendant's Written Submissions") were supplemented by oral submissions on 20 and 21 March 2014. 388The written submissions were structured by topic as follows:

• Overview [1]-[11]
• 'Significant' Medical Issues [12]-[13]
• The Negligent "Event" [14]-[22]
• Medical Issues [23]-[25]
• Pre-Existing Back Complaints/Pathology [26]-[52]
• Non-Economic Loss Damages [53]-[83]
• Economic Loss [84]-[119]
• Moving House? Seemingly not now [120]-[132]
• Credibility Issues [133]-[152]
• Film [153]-[156]
• Medication [157]-[170]
• Other Medical Conditions [171]-[197]
• Domestic Assistance and Appliances [198]-[238]
• Various Activities [239]-[288] (including General Demeanour)
• Judgment - (Updating Payments) 389Whilst liability was in issue until admitted during the course of the hearing, the issue for determination raised by the defendant in these proceedings are to be seen in light of the issues that were conceded by the defendant. They are: Liability Duty of care, breach of duty and causation were, during the hearing, all admitted in favour of the plaintiff. The pleaded issue of contributory negligence was not pursued by the defendant. Damages The following matters were conceded by the defendant: (1) The plaintiff sustained injury in the accident on 1 July 2010, namely injury to his low lumbar spine. There was an issue as to whether the injury was an aggravation of a pre-existing condition in the plaintiff's spine or whether the plaintiff sustained a disc prolapse to the L4/5 spine. (2) The plaintiff sustained impairment and disability as a result of the injury. (3) The plaintiff, following consultation with his general practitioner, ceased work approximately two weeks after the accident and has remained off work since that time. (4) The plaintiff underwent two operations performed by Dr Ferch, neurosurgeon, respectively on 13 September 2010 and 8 April 2013. Both operations were undertaken by reason of the injury the plaintiff sustained in the accident. (5) The plaintiff has been incapacitated since the accident. The defendant has maintained that he has been, and is partially, incapacitated for work although concedes periods of total incapacity following each operation. (6) The treatment received by the plaintiff in respect of the injury to the lumbar spine, including surgical operations, injections, pain management sessions, physiotherapy and medications, has been treatment reasonably required for the effects of the injury. 390It was submitted that the plaintiff had a "pre-existing back condition" which placed him "at a level of extreme vulnerability". That condition was "aggravated" by the accident: at [1]. 391It was further submitted that "as a result of the operative treatment" the plaintiff has an incapacity for work and "some disability". The plaintiff's evidence on these matters should not be accepted: at [3]. This submission, it is noted, focussed on his evidence and did not make mention of the medical evidence. 392In addition, the following submissions were made:
• The plaintiff has "significant and multiple" skills that are transferable and he has "chosen" not to exercise. The defendant should not be liable for economic loss caused by this failure, that is, his "choice to retire at least by the time the mine closed in late 2011".
• If there was any continuing economic loss it should not extend beyond 65 years of age: at [5].
• The discount for vicissitudes should be higher than 15% "by reason of the possibilities of early retirement (or the mine closing) or due to existing medical conditions and/or pre-existing degenerative back condition": at [6].
• The claim for domestic care should be limited to short periods following the plaintiff's back operations: at [7].
• No allowance should be made for mechanical, electrical or domestic devices: at [8].
• The plaintiff and his wife should be found to be unreliable: at [9]-[10]. 393The defendant pursued a number of issues detailed in its written and oral submissions. To that end, a range of matters were pursued including: (1) Pre-existing degenerative changes. (2) The plaintiff's "credibility". (3) Prior history of injuries, in particular, to the plaintiff's back, left knee, right ankle, as well as his diabetic condition. 394Dr Whittaker was cross-examined as to the left knee and right ankle injuries. Whilst the defendant relied upon Dr Coolican in respect of the plaintiff's pre-existing injuries, there is no evidence that establishes that the plaintiff would have developed any significant disabling condition with either his left knee or right ankle. 395Further, the evidence of Dr Harvey did not establish that the plaintiff's working life would have been reduced by degenerative changes. Whilst degenerative changes could possibly have become symptomatic/disabling, there was also no evidence that in the plaintiff's case this was likely. 396On the issues related to the plaintiff's diabetes, the defendant relied upon Dr Lorentz. That issue is separately discussed below. 397The plaintiff was vigorously cross-examined at length on a number of matters concerning activities engaged in by him at various times since his spinal injury. These included issues relating to:
• Shopping
• Driving/holiday excursions
• Alleged fishing, boating
• Camping
• Lunches/golf 398The plaintiff was cross-examined at some length in relation to a DVD of his activities on 23 November 2012. 399The issues pursued by the defendant at length, namely, the "pre-existing" condition of the plaintiff and his credibility have required close attention to the medical evidence and that of the plaintiff and his wife. 400As to the former, the following submission was made on behalf of the defendant: "As a result of that pre-existing condition any bump, even a slight bump, was likely to cause significant symptoms and caused [sic] the necessity for operative treatment. There was a high chance of this occurring to the plaintiff whilst remaining employed ..." (Defendant's Written Submissions at [2]) 401Given the evidence in the proceedings, this is a submission that requires specific comment. The medical evidence not only does not support the submission, it is contrary to the evidence. 402Dr Harvey was requested by the defendant's solicitors, in a letter dated 27 August 2013, to address specific issues. Dr Harvey addressed the issue as to whether the plaintiff could have developed symptoms as a result of a degenerative back disease. Dr Harvey replied: "4.1 I do not believe that it is possible to make any prediction as to when a person would have developed symptoms as a result of degenerative back disease. It is well known that there is no good correlation between the presence of radiological changes of degenerative changes in the lumbar spine and the person's symptoms. Some individuals with quite marked evidence of degenerative back disease on radiological examination make very little complaint at all. Therefore, I do not think it would be possible to state that Mr Campton would have developed symptoms if the incident on 01/07/10 had not occurred." (Dr Harvey's report, 16 September 2013 at p 6) 403The defendant's solicitors again wrote to Dr Harvey on 19 September 2013. Dr Harvey in his subsequent report dated 20 September 2013, wrote: "You are requesting me to predict what could have happened in this man because of pre-existing degenerative changes in the lumbar spine. As I have indicated at the bottom of page 6 of my report of 16/09/13, this is quite impossible. Degenerative changes in the lumbar spine are a universal occurrence in the population and it has been shown that there is no good correlation between the presence of such radiological changes and symptoms. Occasionally these degenerative changes or degenerative changes in the disc do produce pressure on the nerve roots and then the person develops radiating pain down the limbs. If such an event occurs after any injury it would seem reasonable to presume that this injury may have caused the onset of such a painful episode. I have been unconvinced that Mr Campton's pain was due to pressure on nerves ..." See also the evidence of Dr Ferch at T 489.

The Negligent Event 404The plaintiff on and after the date of accident (1 July 2010) had notified the defendant of the subject back injury said to have been caused by the driving on uneven road conditions in the relevant mine roadway. The defendant investigated the accident. The driver was reprimanded. The plaintiff ceased work and workers compensation payments commenced. 405The defendant, as noted above, actively disputed all liability until the sixth day of the hearing. The submissions for the defendant on damages notwithstanding sought to engage the evidence on liability as evidence of damages. At [14] of the defendant's written submissions it was stated: "These submissions were prepared before the admission of liability. Rather than withdrawing them, they remain, not on the issue of liability, but rather as evidence of the unreliability of the Plaintiff as a witness. In particular comparison should be drawn between; 1. The claim form. 2. The statement on the issue of negligence. 3. The Plaintiff's oral and conflicting evidence. 4. The evidence of Mr Howell and obvious concessions he made which the Plaintiff was not prepared to do." 406The submissions proceeded at [15] to [22] to refer to a number of factual matters and aspects of the plaintiff's case on liability. 407Notwithstanding the defendant's delayed admission on all aspects of liability - duty, breach and causation - the defendant submitted at [17], in part, that "it is for the Court to be satisfied of 'their negligence' giving rise to this event" and specific matters are then referred to. 408It is sufficient to say that having closely observed the plaintiff in evidence and considered all the evidence on liability, I accept without reservation the plaintiff's evidence as to the speed of driving, the conditions of the relevant roadway, and the otherwise reckless manner of driving of Mr Fletcher. On his evidence and the medical evidence to which I will later refer, significant trauma to the plaintiff's L4/5 lumbar spine resulted from him being subjected to the force generated by the driving of the subject vehicle. I note that the defendant called no evidence to dispute the discrete and material events associated with the driving of the vehicle in which the plaintiff was a passenger, as implicit by the defendant's ultimate acceptance and admission of liability. 409As to past medical history, there was said to be evidence of radiculopathy at the L4/5 level in March 2009. If so, the defendant's contention was it would have increased the likelihood of symptoms and operative treatment "at some time". The defendant cited Dr Lorentz to support this contention. Dr Lorentz is a consultant neurologist. There is otherwise no support from orthopaedic or neurosurgical specialists or any other medical witness. 410It was noted that in March 2009 Dr Hopcroft thought this condition may be related to damage from the facet joint. 411As noted in the defendant's submissions, Dr Ferch, neurosurgeon, considered the symptoms in March 2009 were consistent with L4 pathology and thought there had been some progressive change in the nerve root over time. 412The defendant's written submissions proceeded with the question, accepting the plaintiff's incapacity for underground work, "What is the plaintiff's residual 'capacity'...": at 12. 413The defendant's submissions then discussed periods of incapacity by reference to "Post-accident and after joint operation" and "Post second operation and the future": at 12. 414The defendant's contention was that there were "significant" medical issues. The defendant admitted "injury by way of aggravation to the L4/5 disc": at p3, [1]. It did not admit injury to L2/3, as suggested by Dr Hopcroft and Dr Bracken. There is an issue as to whether any symptoms at that level are related to the accident or surgery. 415The primary position taken in the submissions for the defendant is that though the plaintiff suffered injury, this was "an aggravation of pre-existing conditions": at [23], [24]. 416The defendant's submissions listed what was termed "medical issues" that "remain alive" for determination at [11], (i)-(xvi).

Pre-Existing Back Complaints/Pathology 417These matters were addressed at [26]-[52] of the defendant's written submissions. 418Reference was made to the plaintiff's previous attendances for medical attention, namely: (1) In 1994 his back was x-rayed; (2) In "about 2003" he attended for physiotherapy for his back; and (3) In 2006 he attended for an x-ray of his back. 419There is no reference in the submissions as to whether any of these attendances related to the lumbar spine, or if they did, whether they concerned the L4/5 level of the plaintiff's spine. There is no reference to whether any back problems were transient conditions in terms of days, events or any longer periods. 420The defendant's submissions then focussed upon two attendances by the plaintiff: 23 May 2007 This related to an attendance by the plaintiff on Dr Millons with "aching in the lower back". On examination Dr Millons noted tenderness at the lumbosacral level and light sacroiliac joint. A "possible diagnosis of an aggravation of degenerative change or musculoligmentation injury to the lower back" is referred to in the submissions.

March 2009 The plaintiff attended Dr Whittaker with a complaint of weakness down the left leg medial aspect. He had normal reflex with reduced vibration sense and light touch in the L4 region and also at the base of the forefoot. The submission was that Dr Whittaker opined that the symptoms could occur in the spinal cord or more distally. The defendant emphasised that Dr Whittaker, however, accepted that the presentation was consistent with lumbar disc disease at [31], and that Dr Ferch considered it as being some incidence of either L4 pathology or consistent with progressive change in that nerve: at [32]. 421There then followed the defendant's submission: "There is no doubt that the Plaintiff had extensive degenerative changes throughout his lumbar spine, which often cause back pain especially when physically stressed." 422The defendant's submission was that the plaintiff clearly had pre-existing back "problems": at [27]. Reference was made to the significance of the evidence of Drs Bracken and Hopcroft as to the presence or absence of back complaints: at [26]. A number of observations were made to the evidence of Drs Millons, Whittaker, Hopcroft, Bracken and Ferch, including references to pre-existing change at L2/3 and L4/5 levels: at [29]-[53]. 423In particular, the defendant's submissions considered the evidence in the case given by Drs Ferch, Bracken and Hopcroft to support its proposition that the plaintiff had pre-existing changes in his spine. The foundational point relied upon by the defendant to that end in its written submissions noted at [36] that Dr Ferch acknowledged:

• In relation to an MRI scan taken shortly after the accident, that at L2/3 there was a scoliosis which can affect the L3/4 and L5 levels. That consisted of "secondary curves" that can cause pain. Progressive deformity can result in nerve compression. He did not consider the plaintiff's symptoms were related to L2/3.
• A pre-existing disc bulge at L4/5 was there before the trauma which precipitated symptoms.
• Degenerative changes at L5/S1 pre-existed the trauma. This meant the plaintiff was vulnerable to recurrent nerve compression and could progress naturally, or progress due to failure of the disc at L4/5.
• Neural symptoms or nerve compression may develop without an event at all.
• Repeated lifting and jarring of the spine aggravates and accelerates degenerative change. Which of these occurred, Dr Ferch did not know. 424The submissions at [38] noted that in evidence Dr Hopcroft "backed away" from the level of concern he had expressed in his report regarding L2/3. Further, that Dr Ferch found a broad based annular disc bulge at L4/5 similar to L2/3. He believed it was possible that there had been some disc bulging before the accident and that the work trauma did not change the pathology in that there was no acute progression of the deformity: at [39]. 425The submissions again emphasised the matter of pre-existing changes upon which it heavily relied (including a reference to degeneration spondylitis and the possibility of a pre-existing L4/5 disc bulge): at [41] and [42]. See also [43]-[44] regarding the issues of the plaintiff's asserted vulnerability and back pain caused by degenerative changes or neural symptoms or nerve compression developing. 426Whilst the defendant's submission was that the history associated with the accident "is evidence of minimal trauma..." (at [48]) (emphasis in original), the submission does not refer to any medical evidence that supports that proposition. It was not, in particular, put as a proposition or an assertion to the treating surgeon, Dr Ferch. The submission went beyond the above assertion and stated: "..This evidence of trauma is not consistent with a high level of trauma, which all doctors have assumed. Further, they have assumed multiples traumas." (at [48]) 427If, as the defendant contended, "all doctors" had made an erroneous assumption as to the trauma having caused spinal disc injury at the L4/5 level, it was incumbent upon the defendant to put that to each of the treating and examining specialists and the treating general practitioner, Dr Whittaker. The obligation to do so arises, of course, from the procedural fairness requirements but equally importantly in order for the tribunal of fact to have the benefit of the evidence of each medical practitioner in deciding the actual issues between the parties. 428The defendant's submissions at [48]-[52] were directed to the proposition, firstly, that the trauma suffered by the plaintiff in the accident on 1 July 2010 was "minimal" (at [48]) or was "... not one of major injury from major trauma ..." at [50]. Second, that the "minimal trauma" was "... not consistent with a high level of trauma" (at [48]) and that, accordingly, such low level trauma purports the proposition that the plaintiff suffered from a number of pre-existing degenerative conditions or changes that contributed to what was referred to as "a vulnerable back" (at 52). 429On the issue of the trauma, its nature and extent, and the impact upon the plaintiff, it is noted that in the Report of Accident/Incident Investigation Form signed by the Shift Supervisor, the details of the accident record, inter alia, that the plaintiff had reported that he was a passenger in the rear of a PJB which was travelling too fast for the conditions and when travelling into a detour and "... it hit a hole jarring Mr Campton's back": Exhibit C. The accident investigation form attaches a statement by the Under Manager, Mr Phillips, in which it is stated that the driver of the PJB, Mr Fletcher "... was warned that his actions were unacceptable ...": Exhibit C. 430As to the subject accident and the onset of symptoms, the defendant submitted: "The plaintiff states that it was a result of one bump that his back became painful ..." (at [47]) 431That submission does not accord with a proper reading of the plaintiff's evidence. In his first Evidentiary Statement (Exhibit E), the plaintiff referred to a number of "bumps" in the PJB vehicle whilst it was travelling at a fair speed over a potholed roadway. 432The plaintiff gave an account of the PJB vehicle being driven by Mr Fletcher at approximately double the normal speed, that is, it was being driven at approximately 40km/h (at [28]) and that the seat that the plaintiff was seated on was made of steel and there were no safety belts available for use (at [27]). The plaintiff described the roadway as rough with quite large potholes causing the vehicle to bounce around (at [39]). He stated that the vehicle struck a large hole in the ground or some other object and was thrown about and jarred quite violently. He stated "I hit my head into the roof and I felt pain in my low back": at [33]. 433The plaintiff's evidence on this point was as follows: "33. When it became obvious that he was not going to stop and attempt to take the corner at what I viewed as very high speed in the circumstances, I yelled out at him just prior to him entering the bypass road to slow down. This appeared to have no effect on him and he entered the bypass road and shortly thereafter had struck a large hole in the ground or some other object and [I] was thrown about and jarred quite violently. I hit my head into the roof and I felt a pain in my low back. ... 39. Travelling on the alternate road, I noticed that the road was extremely rough indeed. It is not uncommon for bypass or alternate roads to be in a worse state of repair than the main travelling road. However, the condition of this roadway was as bad as any I have ever seen in my whole time in the mines. As soon as we entered the roadway there were quite large potholes and [we?] commenced bouncing around. The condition of the roadway remained poor for the entire journey. ... 41. When we got to the diesel bay the pain in my back had worsen [sic] and it was quite severe." 434The Under Manager's report, part of Exhibit C, noted that in interviewing each witness separately they all gave the same story of events as Mr Campton. It stated "On interviewing each witness separately they all gave the same story of events as Mr Campton". The report later stated that the Mr Fletcher had been "...warned that his actions were unacceptable ..." and he was put on notice that any future complaints or incidents would lead to his immediate suspension as well as disciplinary action. 435Dr Whittaker, in his first report dated 6 August 2010 (Exhibit A at p 1), recorded: "... Ian injured his back at work on 1/7/10 when the transporter he was riding in down the pit was travelling fast over rough ground, causing a severe compression through his lower back as he sat on the seat ..." 436Dr Ferch's report of 5 August 2010 (Exhibit A at p 28) contained a history of the vehicle travelling over rough ground. He recorded: "... The vehicle struck a hole causing him to bounce heavily on his back which precipitated back and left leg pain. He had 2 more jars to his spine in the same trip which aggravated his symptoms. Ian has been limited by ongoing pain radiating from his back into his left buttock, down the posterior aspect of his thigh to his posterolateral calf." 437It was submitted that this was not the history given by the plaintiff in evidence and that Dr Hopcroft relies upon a wrong history to consider the level of vulnerability: at [40]. 438The plaintiff's evidence as to the trauma was referred to in the defendant's submissions at [47]. It is noted that Dr Ferch was not cross-examined to establish any variation in the plaintiff's account of what happened to him in the accident made any difference to Dr Ferch's opinion or diagnosis or causation. 439In cross-examination the plaintiff stated that he was seated approximately over the left rear wheel of the vehicle. It was put to him: "Q. Which of course would you agree makes the jarring more pronounced being over the wheel? A. It's where I had to sit. Q. I'm not saying you didn't, Mr Campton, but do you agree it makes the jarring more pronounced if you are sitting over a wheel? A. Yes." (T 70) 440It was then put to the plaintiff that he had, in effect, been wedged into the vehicle with his helmet touching the canopy, with which he agreed. It was put that there was therefore little body movement, perhaps an inch or two, with which the plaintiff also agreed: T 71-2. 441Dr Whittaker, whilst accepting that it is likely that the plaintiff had pre-existing disease at the time of the injury, rejected the proposition that as a result of the trauma the disease manifested itself at the L5/S1 level. Dr Whittaker stated: "A. I believe the trauma caused disc prolapse which is where there's bulging of the disc causing effacement of the nerve roots which is -" (T 455: 42-46) 442It was then put to him: "Q. So just because there is a prolapse doesn't mean that it was caused by an injury? A. It's highly likely that an injury causes a disc prolapse as opposed to disc disease. Disc disease implies dehydration of the discs causing them to become flatter and thinner which usually not cause a - would not cause lateralposterior spreading of the disc to pressure a nerve." (T 456:15-20) 443Dr Ferch accepted that somebody with the plaintiff's radiological picture would be vulnerable to developing neural symptoms which may or may not develop and, in the plaintiff's case, he developed them after the "specific event" in question: T 490:10-20. 444Dr Ferch was asked to assume a history of the plaintiff having suffered injury whilst a passenger in the PJB vehicle when it hit a large pothole travelling at speed with the plaintiff's head up into the steel canopy resulting in bouncing heavily as described in his report. He was asked whether such an incident was capable of causing injury to the plaintiff. Dr Ferch answered in the affirmative: T 511:1-20. He stated that whether or not the trauma caused a disc to acutely bulge: "... a bit more as a result of the compressive injury or whether the nerve was simply pinched in the space and swell I couldn't tell for certain but, yes your hypothesis that the disc could have bulged some more as a result of the accident is reasonable". (T 511:45-50) 445Accordingly, it is clear on the plaintiff's evidence on the facts of the accident, which I entirely accept, that his low back was subjected to significant trauma through being "bounced" in the vehicle as it travelled at an excessive speed over a potholed roadway precipitating severe back pain by the time the vehicle stopped, or at least by the time the plaintiff and others went to the diesel bay. 446Contrary to the defendant's submissions, I am satisfied that Dr Ferch, in particular, obtained and proceeded upon a correct history of the plaintiff's accident. 447The defendant also submitted that the history of the plaintiff's accident referred to in [48] of its written submissions was evidence of "minimal trauma". 448In my assessment of the plaintiff's evidence and that of the medical practitioners called in the plaintiff's case, that submission is incorrect. The submission in my respectful opinion is contrary to the evidence. 449The defendant did not call evidence to contradict in any respect the plaintiff's account as to the circumstances leading to injury sustained in the accident on 1 July 2010. An examination of the evidence does not support the defendant's proposition that the trauma suffered by the plaintiff was either minor or not significant. It clearly was significant trauma and, on the medical evidence, including in particular that of Drs Whittaker and Ferch, the evidence establishes, in my assessment, on the balance of probabilities, the plaintiff did sustain an L4/5 disc lesion involving a prolapse of the disc which shortly thereafter manifested itself in neurological symptoms in the lower limbs.

Non-Economic Loss Damages 450The defendant's written submissions addressed a number of matters including relevant legislative provisions: [53]-[60]. Reference was also made to the decision of the Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427 (s 79 Motor Accidents Act 1988) and other decisions that have considered the issue of "a most extreme case" and the approach to be taken in making an assessment: at [63]-[65]. 451The defendant referred to "other medical conditions" that have and/or may have restricted the plaintiff. References were made to the plaintiff's diabetes, what was referred to as his "degenerative knees", and history as to his right ankle and left knee: at [67]. 452The further submission was that "... the plaintiff is an unreliable witness": at [70]. There then follows matters 1-9 set out in the submissions. 453The submission was that there should be a high level of discount "given that the injury to the back is an aggravation and given the widespread degenerative changes at all levels ...": at [72]. Other matters were relied upon at [73]-[81].

Economic Loss 454The court, it was submitted, should not make a "global" assessment of past economic loss but there should be an assessment along the lines referred to in 84-(v). I refer to a number of the matters raised in the defendant's submissions below in the discussion of past economic loss. I accept that a "global" approach to assessment should not be made but that a differentiation needs to be made to events occurring since the accident to the date of assessment with due attention to the impact of the same upon the plaintiff's past earning capacity.

Future Economic Loss 455The defendant's submission was that the plaintiff had "transferable skills": at [110]. Reference was made to him having computer skills. It was then submitted that "In a self-serving fashion the Plaintiff in his statement sought to deny them": at [110]. 456The defendant's submission omits reference to evidence that establishes that the plaintiff has only basic or low level computer skills. (1) Mr Mark Ravagnani, Psychologist, in his report dated 15 February 2012, dealt with the impact of the plaintiff's injury on his vocational capacity. He recorded: "He can use a computer to access internet although other skills are limited": at p 4. (2) Mr Ravagnani concluded: "... overall Mr Campton lacks specific skills or training which could be easily transferred into more sedentary occupations ...": at p 7. (3) The plaintiff said he used the computer, in particular, he had looked up internet sites for work with the help of his wife: T 284. In his Supplementary Evidentiary Statement (Exhibit F), at [36] and in oral evidence, he said he had no computer skills: T 285. He there stated he had never had computer lessons and had not had internet training: T 282. 457The submission that the plaintiff has "computer skills" is not, in my assessment, one that finds support in the evidence. The plaintiff's evidence was that he had "very limited" research skills on the internet: T 282. There is no evidence contrary to his account that he has had no training or capacity in utilising computers in the sense of having a "transferable skill". The defendant's submission to the contrary is contrary to the evidence. 458The general principles concerning future economic loss stated in Rabay v Bristow [2005] NSWCA 199 were set out in the defendant's written submissions at [113], quoting paragraphs [73], [74] and [79] of the decision in that case. 459In paragraph [73] McColl JA stated: "... it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person ..." 460The defendant's written submissions do not address the plaintiff's claim for residual or partial earning capacity in terms of evidence as to what it is said that the plaintiff is capable of doing or what particular jobs are open to him. 461The defendant referred to a number of vicissitudes which it said needs to be considered in this case. Without here repeating all of them, reference is made to the fact that the plaintiff may suffer "further injury" involving the back, left knee, right ankle, his age and health scares such as cancer, his wife's desire to retire, his availability of age pension/superannuation, reduced life expectancy due to diabetes and hypertension, close down of coal mine. 462The defendant submitted that there should be no award of future economic loss past 65 years of age: at [116]. 463In calculating past wage loss it was contended that account must be taken of: (i) The plaintiff's receipt of his superannuation entitlements. (ii) That had the plaintiff sought suitable work he would have become entitled to superannuation from any new employer and the court must deduct such "notional superannuation payment": at [117]. 464The defendant submitted that "... it would be not inappropriate to consider a figure of 50% discount on working to 65 years on the state of the evidence": at [119]. 465It was further submitted for the defendant that the claim for costs of moving home should be rejected. In particular, reliance was placed upon the fact that the plaintiff had made no effort to move house. Additionally, reliance was placed upon the fact that the plaintiff and his wife had expended $16,000 adding on a "Queenslander room" to their current home. It was submitted that the explanation given by the plaintiff's wife at T 647 should be rejected. 466As to future medical treatment, it was submitted that no allowance should be made for treatment by Dr Whittaker as he only attends Dr Whittaker for "medical certification": at [131]. It was noted that the conclave reported that the plaintiff should be treated conservatively. 467It was submitted that no future allowance should be made for remedial therapies such as hydrotherapy and physiotherapy: at [132].

Credibility Issues 468It was submitted that: "The core of the Defendant's case affecting all claims made by the Plaintiff is his reliability as a witness of truth ..." (at [134]) 469It was submitted that the plaintiff had "... demonstrated a keen forensic eye and much of his evidence is tailored to support and extend his claims for damages": at [136]. 470The defendant relied upon what it claimed was "contradictory evidence of complaints": at [138]. 471A number of matters said to establish the plaintiff's unreliability were addressed at [135] to [143]. The defendant then proceeded to argue that Mrs Campton's credibility was also questionable. In her case, reliance was placed upon particular points arising in evidence at [144]-[151]. 472In relation to the plaintiff, matters said to go to reliability include the following:

• The plaintiff's contention that doctors had confused "left" and "right": at [137].
• The plaintiff's contradictory evidence of complaints. Specific reference in this regard was made to the following: (a) "diabetes" and "right ankle"; (b) entries by Dr Harvey of having examined his "right" hand and not his "left": at [138] and [140]. 473References were then made to particular matters arising in the course of the evidence of the plaintiff's wife: at [144]. It was submitted that her Supplementary Evidentiary Statement (Exhibit M), was a "forensically driven document". Examples included reference to the use of boat, changing the date they camped at Seal Rocks to February 2012, reference as to entry as to staying at Seal Rocks for "a week", contrary to her evidence that the stay was in fact only for three days: at [145]-[146]. 474The above matters were said to be important to the reliability of Mrs Campton as a witness: at [148]. Reference was made to four other items at [149] that were said to support the submission. 475Finally it was submitted that the failure to call the plaintiff's sons gives rise to a Jones v Dunkel (1959) 101 CLR 298 inference at least as to purchases made by one or other or both of them using the plaintiff's credit card. Additionally, it was submitted that such an inference could be drawn through failure to call the brother-in-law concerning certain work that the defendant alleged had been undertaken on boats.

Film 476It was submitted that the DVD film of the plaintiff's activities "... would create great doubt as to the veracity of the plaintiff to the court and in particular Mr Hughes": at [156]. 477A number of matters were set out concerning the film which showed the plaintiff in a shopping centre which it was acknowledged demonstrated a "slight" limp, but no suggestion of stumbling or falling. 478A number of matters concerning the film are detailed in paragraphs [153]-[155]. 479The DVD film shown in evidence, (not to the plaintiff but to Dr Ferch), does not demonstrate the plaintiff undertaking any activity inconsistent with his level of impairment. As discussed below, Dr Ferch's evidence is confirmatory of his diagnosis of radiculopathy affecting the left lower limb. 480A number of submissions were made about the medication or lack thereof in the earlier period of the plaintiff's impairment following the accident, including in particular, the year 2011. The plaintiff had undergone surgery in September 2010 and remained under active medical review both before and after surgery. 481The plaintiff's medication has been varied from time to time. The details are contained within the clinical notes of Dr Whittaker and referred to in other reports. Particular matters are developed in the defendant's submissions on the question of medication which are not reproduced here.

Other Medical Conditions 482The plaintiff again addressed what it was contended were medical conditions relevant to the assessment of the plaintiff's claim including, in particular, the assessment of past and future economic loss. Those conditions, as discussed above, were said to be: (i) Left knee injury (notwithstanding the opinion of the defendant's examining specialist, Dr Coolican - see [219]-[220] above); (ii) Right ankle injury (again, notwithstanding Dr Coolican's opinion); (iii) Diabetes (notwithstanding the conclave joint report). 483The submissions refer to the decision of the Court of Appeal in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208: at [173]-[176]. 484In Seltsam Pty Ltd, supra, Ipp JA observed, inter alia: "Without intending to give an exhaustive list of possibilities, it may be that, had the Defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the Plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the Defendant's negligent act might have contributed to the Plaintiff's ultimate condition. Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the Defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the Plaintiff, even without any negligent conduct on the part of the Defendant, cannot be disregarded in arriving at proper compensation." (at [106]-[107]) 485The submission made for the defendant was: "... the Plaintiff has not discharged his legal onus of proof as to the interference with the Plaintiff's capacities from these non-tortious conditions." (at [175]) 486The principles as discussed at [104]-[107] by Ipp JA in that case, were relied upon, in particular, in support of the submission: "This issue of course is relevant to the Plaintiffs' pre-existing back degenerative condition as identified above ..." 487These submissions do not refer to the opinion expressed by the defendant's qualified orthopaedic surgeon, Dr Harvey, to which reference has been made above. 488In the present case, the plaintiff's pre-existing condition as revealed by the scans performed in July 2010, reveal changes at a number of levels of the lumbar spine. The L3/4 level was within normal limits, but the L4/5 level demonstrated a disc bulge which was considered by Dr Ferch and Dr Grant and others as consistent with the diagnosed disc prolapse at the L4/5 level. A pre-existing degenerative spondylitic state was also identified. 489The relevant consideration as to future possibilities requires an assessment bringing into account medical opinion as to the possible future symptoms and/or disability resulting from degenerative back disease. In this respect Dr Harvey was specifically asked to address that issue in which, as earlier noted, he stated that he did not believe that it was possible to make any prediction as to when a person would have developed symptoms as a result of degenerative back disease. In the plaintiff's case he said: "... Therefore, I do not think it would be possible to state that Mr Campton would have developed symptoms if the incident on 01/07/10 had not occurred". (Report, 16 September 2013 at p 6) 490Notwithstanding this opinion, however, there is a need to give consideration, in determining proper compensation, to the possibility that the plaintiff's degenerative back disease may have produced symptoms or other harmful consequences at some time in his ordinary working life and thereafter. That said, as observed by Ipp JA at [107] in Seltsam Pty Ltd, supra, the pre-existing condition proved to have possible ongoing harmful consequences must be "capable of reasonable definition". In other words, the degenerative changes in the plaintiff's condition as at the date of the subject accident cannot be disregarded and I take them into account in determining proper compensation in the present proceedings.

Left Knee 491The defendant's submissions referred to the plaintiff having undergone, in respect of his left knee, a retro patella chondroplasty medial meniscestomy by Dr Berton who the plaintiff subsequently saw on 16 June 2009. In October 2009, he told Dr Berton that his knee was "not too bad at the moment". It was submitted that the plaintiff "sought to downplay this condition". 492Reference was then made an incident that occurred in a café in September 2012 which possibly occurred when his left knee gave way. 493Reference was also made to evidence given by Dr Whittaker in respect of an MRI scan taken in December 2013 to the effect that a degree of cartilage wear behind the kneecap could be expected in a man of the plaintiff's age. 494The defendant retained Dr Myles Coolican, orthopaedic surgeon. Dr Coolican provided reports dated 20 September 2013, 11 October 2013 and 4 February 2014. However, the defendant did not refer to the opinion of Dr Coolican in its submission on this aspect. 495In his report of 9 January 2014, Dr Coolican reported on radiographs of the plaintiff's knees dated 20 November 2013. 496Dr Coolican noted that in his prior report at [4.2] he observed that the plaintiff's left knee, right knee and right ankle all had minor wear and tear changes and on present assessment would not render him unfit for underground mining. He said that his opinion remained the same based on current imaging studies. Based on those studies, and having regard to previous comments he had made about the left knee, he said that the current imaging studies showed very minor wear and tear changes. He said that based on the new imaging studies, "... Mr Campton would have been able to work underground as a miner until retirement at age sixty-five": at p 2. 497He added by way of further comment: "... given the current images demonstrating very little deterioration of the knees over time, I would anticipate that it is probable that Mr Campton's knees will last many years before knee replacement and he may possibly never require a knee replacement." (at p 2) 498The defendant's solicitors wrote again seeking a further opinion from Dr Coolican. Dr Coolican, in a report dated 4 February 2014, confirmed his earlier observations in his previous report. He included in that report: "As indicated in prior correspondence dated 9 January 2014, my opinion remains that Mr Campton's wear and tear changes in both knees are modest and are unlikely to prevent him from working as an underground miner". (at p 2) 499The complete absence of any reference to Dr Coolican's opinions as to the plaintiff's knees (favourable to the plaintiff) is, as I have earlier noted, surprising.

Right Ankle 500The submission was that there was no doubt the plaintiff had a significant right ankle injury. It was contended, based upon the letter written by Dr Whittaker to Dr Young, that he had had persistent ankle pain: at [185]. The problem required attention by Dr Young. 501Reference was made to Dr Whittaker's opinion that the plaintiff had had a significant strain to the right ankle and that he should have a right ankle brace. The injury in question occurred in April 2007. 502I do not here repeat all of the matters referred to in the defendant's written submissions at [187]-[195]. 503It is to be noted that Dr Coolican in his report of 20 September 2013 (Exhibit 28) noted that the plaintiff had injured his right ankle in 2007 and reference was made to a report of Dr Young as to the injury that was reported as having occurred on 18 April 2007 when an underground transport took off before the plaintiff was fully inside. 504Examination by Dr Coolican revealed that the right ankle showed plantar-flexion and dorsiflexion was full. Dr Coolican noted that the right ankle was stable with no real increase in translocation on anterior drawer and there was no local tenderness around the ankle: at p 3. 505Dr Coolican referred to a letter from the defendant's solicitor's dated 5 September 2013 in respect of the plaintiff's right ankle. Dr Coolican referred to the re-sprain of the plaintiff's right ankle in December 2007 and noted it does occur commonly after an ankle sprain. However, Dr Coolican noted that the plaintiff had had no further symptoms from his right ankle and insisted that it gave him no pain and that he had required no significant treatment. 506Dr Coolican, further stated: "In answer to your Question 3, it is unlikely that Mr Campton would have suffered a major disability with his right ankle from ongoing underground mining work as well as social and recreational activities. The usual outcome following a lateral ankle sprain is healing of the ligament with an occasional episode of instability but the onset of osteoarthritis is uncommon and I would not have expected the degenerative changes to progress." (at p 6) 507In the discussion of the right ankle in the defendant's submissions at [185]-[195] there is no reference to the recent examinations and opinions expressed by Dr Coolican who had been retained by the defendant to examine, inter alia, the plaintiff's right ankle. 508There is no explanation given in the submissions for the defendant as to why Dr Coolican's examination and opinion on the right ankle was not discussed or referred to in those submissions.

Diabetes 509The defendant's written submissions catalogue a number of matters in subparagraphs 1-16 on pages 61-67. 510In subparagraph 2 the statement is made that "footdrop can be a complication of diabetes ..." (emphasis in original). 511In subparagraph 10, the statement is made "Dr Grant clearly considers that the diabetes is contributing to the plaintiff's neuropathic state ...". The basis for the latter statement is said to be found in Dr Grant's report dated 3 June 2011 contained in Exhibit A at page 61. The relevant paragraph in Dr Grant's report is in the following terms: "1. Diagnosis I believe Mr Campton suffered a disc prolapse at the L4/5 level as the result of the episode described in July 2010. I would also suggest that the action resulted in an aggravation of a pre-existing degenerative spondylitic state in the lumbar spine. The disc lesion at the L4/5 level has resulted in nerve root damage and he continues to evidence a neuropathic pain which is the result of changes at both the L5 nerve root and now S1 nerve root. This neuropathic state is probably aggravated by his diabetic state." 512The defendant's written submissions contain a number of references to the "histories" provided by the plaintiff to various doctors concerning symptoms such as numbness in the foot and toes and weakness in the left foot: pp 64-66. It is unnecessary here to set out the detail concerning the same, which I have read. 513 At [197], following reference to the alleged conflicts in the plaintiff's evidence and recollection it was submitted that the issue for the court was whether or not the plaintiff can satisfy the court that he is "a reliable witness as to his complaints of pain": at [197].

Domestic Assistance and Appliances 514The written submissions for the defendant contain a number of submissions in relation to the claim for domestic assistance and various support items detailed in Ms Ravagnani's report. Specific items and issues concerning the same are discussed later in this judgment.

Various Activities 515Extensive cross-examination, as the summary of the cross-examination set out in Schedule A to this judgment reveals, was devoted to determining what activities, if any, the plaintiff had been engaged in both before and after the two surgical procedures performed on his lumbar spine. In particular, the issues concerned, as earlier noted, fishing, boating, painting, camping, shopping. It is unnecessary here to set out the detail of the submissions made in respect of all of these items. I have, of course, had regard to the matters upon which the defendant relies in terms of the alleged impact that the plaintiff's evidence is said to have on his credibility and his claim generally. I have, of course, had full regard to the contentions made by the defendant in relation to each and every activity the subject of the submissions: at [245]-[288]. 516Separate submissions were made in relation to holiday excursions which the plaintiff has taken over the years under the heading "Travel" in the defendant's written submissions: at pp 87-88. 517In relation to the issue of "general demeanour", addressed in the defendant's submissions at pp 88-92, specific matters were relied upon in the defendant's attempt to challenge the plaintiff and establish him as an unreliable witness. In particular, matters have been identified in paragraph 14 on p 89 of the submissions, subparagraphs (a)-(w) to support the submission overall that "... the Plaintiff was argumentative, evasive, devious, forensic, self-contradictory": at [14]. 518I note subparagraphs (a) to (e) at paragraph [14] relate to specific matters and circumstances concerning the accident of 1 July 2010 (for example, the "thin padding" on the steel seat, the inability to see the surface of the roadway, memory as to symptoms, whether he had referred to the left leg and seen by a general practitioner). 519The matters the subject of paragraphs (f)-(i) were directed to the proposition that the plaintiff was, in effect, argumentative. I do not consider that any of the matters referred to, in my assessment, have any impact upon the plaintiff's honesty. Those matters make no allowance for the lengthy and detailed cross-examination of the plaintiff on a myriad of issues which at times produced signs of exasperation in the plaintiff. 520In relation to the matters set out in subparagraphs (j)-(m) many of the contentions are in the nature of assertion to support the general proposition of alleged argumentativeness, evasiveness etc. 521Subparagraph (n) (whether the road was bogged or not bogged) again relates to a detail concerning the driving conditions and does not, in my assessment, impact at all upon the plaintiff's credibility. 522Subparagraphs (o)-(w) are in the nature of assertions and argumentative propositions to support the general proposition as to the plaintiff's alleged lack of credibility. Each are to be assessed in light of the evidence and in that respect I have had close regard to the evidence given by the plaintiff, in particular, in cross-examination on the matters relied upon.

(1) Assessment of the Plaintiff's Evidence 523The plaintiff's evidence in chief was principally contained in his Evidentiary Statements, Exhibits E, F and G. 524In his first statement, Exhibit E, the plaintiff provided a comprehensive account of the events and circumstances surrounding and relating to the accident at [22]-[46], including details as to the shift briefing before his crew entered the PJB vehicle, details as to the "drift road", the circumstances in which the PJB vehicle proceeded, the travelled on the bypass roads, the PJB vehicle itself, its direction, the speed of travel, his calling out to the driver prior to the accident, the features associated with the vehicle itself, his position in the vehicle as a passenger, the condition of the bypass road, the description of the vehicle as it bounced during the course of travel, the onset of low back pain, his subsequent attendance at the diesel bay, his verbal report to the Under Manager, Mr Phillips about the accident and details concerning a range of post-accident facts. 525Although the plaintiff was cross-examined at length and tested on a great number of matters, his evidence was consistent with contemporaneous reports, and statements concerning the accident. 526The cross-examination failed to undermine his evidence as to the material facts subjacent to the issues concerning the defendant's liability. In my assessment, the cross-examination served to demonstrate that the plaintiff was a credible witness both in terms of his honesty and reliability as to the accident and the circumstances in which it occurred, and his symptoms and medical history on key facts. 527Whether the plaintiff's evidence on liability in cross-examination was instrumental or not in the defendant's belated admission of liability on the sixth day of the hearing matters not. Suffice to say, as earlier indicated, Mr Campton's evidence on liability was impressive. The prolonged cross-examination failed to expose any reason to doubt him as to the accuracy of his account, corroborated as it was by the evidence of his co-worker Mr Howell and the defendant's own records 528Mr Campton's account of his post-accident injuries and disabilities, as recorded in his Evidentiary Statements, was also consistent with both the oral evidence given by Drs Whittaker and Ferch and their clinical notes and reports. 529In his first Evidentiary Statement, Exhibit E (at [59]), the plaintiff set out a list of his current symptoms: at sub-paras (a) to (o). He was not cross-examined to suggest that any of the listed symptoms were not true, or had not, or did not, exist. 530In paragraph [66] of Exhibit E, he stated: "My condition has continued to worsen". Insofar as there was a suggestion in cross-examination that the plaintiff was and had been exaggerating his symptoms, the evidence of Drs Whittaker and Ferch was very much to the contrary. The evidence establishes that throughout the period from 1 July 2010 to the time he gave evidence, he has suffered severe chronic and unremitting back pain as well as the impairment of his left leg related to the L5 nerve root compression or injury. That evidence includes:

• Dr Whittaker's observation that he continued to experience: (a) "severe lower back pain which is unremitting and significantly impairs his ability to sit, stand, move, walk and perform even light duties ...": Dr Whittaker's report, 20 December 2011, Exhibit A at p 8.
• "... Ian has chronic lumbar pain and sciatica with neural impairment and causing weakness of the left leg, related to an acute prolapse of discs L4/5 and L5/S1 in 2010 ...": Dr Whittaker's report to Ms Key, 16 May 2012, Exhibit A at p 12.
• "... Mr Campton continued to experience weakness of the left leg, weakness of the left ankle dorsiflexion, an abnormal high-stepping gait due to left foot drop, persistent pain in the lower back, and numbness down the left leg. His symptoms were exacerbated by activities ...": Report Dr Whittaker, 12 August 2013, Exhibit A at p 13.
• "... Mr Campton's ongoing condition includes:

• Chronic persistent lower back pain, related to the disc prolapse as sustained at the time of the injury ... He continues to experience chronic pain in the region of the lumbar spine ...": Dr Whittaker's report, 12 August 2013, Exhibit A at p 14.
  • "... he has subsequently experienced the development of a chronic pain syndrome involving the lower back, along with permanent abnormalities of gait and posture due to the injury to the nerves to the left leg that were sustained": Dr Whittaker's report, 12 August 2013, Exhibit A at p 15. 531The fact that the plaintiff, after some delay in considering his options, underwent a spinal fusion operation on 8 April 2013 evidences the fact that he had been seriously disabled by pain and loss of function on a continuing basis between the accident and the second operation. 532In 2011, Mr Campton had demonstrated his bona fides to attempt to return to work. In his second Evidentiary Statement, Exhibit F, he stated: "8. I wanted to try and get back to work so I attended my general practitioner and asked him if he would provide me with a certificate for light duties so that I could at least attempt to return to work; this was done on about 28 September 2011. I returned to work seeking light duties, however, I was thereafter assessed by an occupational therapist there and I was advised, 'you are not fit to return to work even on light duties'. 9. Over a period of time the pain in my back and leg have worsened. I was having trouble with left foot drop." 533There was no attack upon the plaintiff in cross-examination suggesting that his account at [532] above, specifically, at [8], was in any respect erroneous or exaggerated. No evidence was called by the defendant to dispute the fact that he did in fact attend on Dr Whittaker or about 28 September 2011 as recorded in paragraph [8] of Exhibit F. There was no evidence disputing the fact that on that occasion he did in fact ask Dr Whittaker to provide him with a light duties certificate. There was no evidence called by the defendant to dispute that he sought light duties or evidence to refute the statement which he attributed to the occupational therapist set out in the extract above. 534The cross-examination of the plaintiff traversed a multitude of topics. There is no need to refer to them in detail here as an analysis of the cross-examination is set out in the Schedule attached to this judgment. The cross-examination not infrequently switched back and forth on particular topics, returning, more than once, on some topics for the purpose of further cross-examination. 535The plaintiff during the course of his evidence, in particular, as it proceeded into a second and third day, was exhibiting signs of increasing discomfort. He frequently stood and moved about and at times was offered the opportunity to rest before continuing. It was not suggested, nor in my assessment could it have been suggested, that the plaintiff was not genuinely experiencing significant levels of pain and discomfort throughout most of the cross-examination. It was plainly evident that as the cross-examination continued on successive days in East Maitland he was suffering increasing pain and discomfort. 536The following submission was made on behalf of the defendant in its written submissions at p 94 at [14]: "... It is submitted overall the plaintiff was argumentative, evasive, devious, forensic, self-contradictory." There is then set out facts in sub-paras (a) to (w) in support of that submission. 537I have referred earlier to the consistency in the plaintiff's accounts to treating and other examining specialists as to his accident, immediate onset of symptoms and medical history given in the period 1 July 2010 to the date of hearing, together with the uniformity of specialist opinion on the issues of injury, causation, symptoms, clinical signs, disability and incapacity all of which supported the plaintiff (except for Dr Harvey). There was no attack upon the plaintiff as to his accounts of post-accident symptoms as conveyed to those specialists. All medical examiners, with the exception of Dr Harvey, have accepted his symptoms as consistent with clinical and radiological findings. Dr Whittaker expressly stated that the plaintiff was a reliable historian. There is no evidence, in my assessment, given by any of the doctors (including Dr Harvey) to suggest that the plaintiff was, as the defendant contended: "... devious, forensic, self-contradictory". 538Having closely examined the medical and lay evidence, including that of the plaintiff and his wife, I have no hesitation in finding him to have been a reliable and truthful witness. I have concluded that the matters set out at p 89 of the defendant's written submissions, [14], several of which are in the nature of assertions, are baseless and do not provide a ground for undermining the accepting of him by all medical examiners (with the exception of Dr Harvey) as genuine.

(2) The Issue of Diabetes 539The defendant raised the issue of the plaintiff's diabetes as an adverse contingency facing the plaintiff. The issue is a false one. 540On the subject of Mr Campton's diabetes, I note that Dr Whittaker in his report of 5 September 2013 observed: "... In my opinion Mr Campton's diabetes does not render him unable to continue his role of employment as an Underground Coalmining Deputy. 3. Whether the diabetes would in any event prevent Mr Campton being able to continue to work as an Underground Coalmining Deputy until the age of 65-70 years: In my opinion diabetes would not be likely in any way to prevent Mr Campton being able to continue to work as an Underground Coalmining Deputy until the age of 65-70 years." (Exhibit A at p 24) 541Dr Whittaker reaffirmed his opinion that the plaintiff's diabetes does not render him unable to perform work as an underground coalmining Deputy in his report of 16 February 2014: Exhibit A at p 25. In that report, Dr Whittaker observed: "Mr Campton is diagnosed with Type 2 Diabetes, which was first diagnosed in 2006, following the diagnosis of impaired glucose tolerance in 2005. He has never experienced any complications of diabetes that have had or would be likely to render him unable to continue his employment. Diabetes can cause complications that include disease of the large and small blood vessels ... In Mr Campton's case he does not have clinical evidence of any symptomatic diseases related to diabetes." 542Dr Whittaker then referred to the joint report arising from the conclave. In that it recorded: "... In reference to that report, it has been agreed that diabetes is not the most likely cause of Mr Campton's neurological symptoms ... In my opinion, Mr Campton may have an underlying asymptomatic generalised peripheral neuropathy due to diabetes. He does not have any symptoms or consistent clinical examination findings that support any possibility that diabetic peripheral neuropathy has or currently has any bearing on his ability to perform his employment as Coal Mining Deputy." (Exhibit A, p 26) (emphasis in original) 543Finally, Dr Whittaker explained what he referred to as "The medical reasoning" for his opinion that diabetes would not be likely in any way to prevent the plaintiff from being able to continue working as an underground coal mining deputy until the age of 65-70 years in his report 16 February 2014: Exhibit A at p 26. Dr Whittaker noted his opinion was agreed with at the conclave involving himself, Dr Hopcroft and Dr Lorentz: Exhibit A at p 27.

(3) Non-Economic Loss 544The assessment of non-economic loss damages is to be undertaken in accordance with the relevant provisions of the Workers' Compensation Act 1987. 545I note that pursuant to Schedule 3, Part 18 of that Act, amendments to the Act in 2001 are not applicable to coalminers. Accordingly, the Act is to be applied as though the 2001 amendments had not been enacted. 546Section 149(1) of that Act defines non-economic loss as follows: "Non-economic loss means: (a) Pain and suffering, and (b) Loss of amenities of life, and (c) Loss of expectation of life, and (d) Disfigurement." 547In accordance with the provisions of s 151G(2) of that Act, the plaintiff is to be compensated as a proportion of the maximum prescribed amount according to the severity of the non-economic loss. 548Section 151G(2) is in the following terms: "The amount of damages to be awarded for non-economic loss is to be a proportion determined according to the severity of the non-economic loss, of the maximum amount which may be awarded." 549The maximum amount for the purposes of the present case, for the purposes of s 151G(2), is the amount of $350,600. 550The legal test to be applied in the assessment of non-economic loss under the provisions of s 151G(2) have been the subject of consideration by the Court of Appeal on a number of occasions. In that respect, the following propositions have been established by the relevant caselaw: (i) Section 151G(2) involves an exercise in evaluative judgment, the parameters of which cannot be defined with precision: Southgate v Waterford (1990) 21 NSWLR 427 at 442; Dell v Dalton (1991) 23 NSWLR 528 at 532 (per Handley JA) referring to Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71-72 and Rabay v Bristow [2005] NSWCA 199 at [62]-[67]. (ii) The exercise required to be undertaken in determining the severity of a plaintiff's non-economic loss is neither scientific nor normative. Whilst it is not wholly at large, it nevertheless involves an exercise of discretion: Rabay v Bristow, supra, at [62]. (iii) The assessment of non-economic loss being an evaluative in nature is one in respect of which minds may reasonably differ: Woolworths Limited v Lawlor [2004] NSWCA 209 at [14]. (iv) The nature of the evaluative task involves, inter alia, matters of fact and degree. In Rabay v Bristow, McColl JA at [64] referred to the proposition as expressed by Handley JA (with whom Kirby P and Priestley JA agreed) in Dell v Dalton, supra, where his Honour observed in respect of a trial judge's conclusion for the purposes of assessing non-economic loss pursuant to s 79 of the Motor Accidents Act 1988: "... the ultimate finding that a particular case is or is not 'a most extreme case' will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common-sense and judgment." 551It is necessary for the relevant matters established in evidence to be reviewed and considered in reaching a determination of non-economic loss. The meaning, impact or significance of those matters are to be considered in the exercise of the statutory discretion: see, for example, Franklins Limited v Burns [2005] NSWCA 54 at [54]-[60]. 552In accordance with the approach discussed in the lastmentioned case, the plaintiff's position prior to the accident is to be considered including his health, lifestyle and activities in which he engaged as well as his participation in the workforce up to that time. 553The evaluation is also to take account of the plaintiff's position following the accident, in particular, his disabilities and restrictions consequent upon the injuries sustained, and the impact that has had, including in particular, how the injury and its consequences has interfered with the injured person's social or recreational and vocational activities to date and into the future. In the light of such matters, appropriate findings of fact and conclusions concerning the extent of the plaintiff's disabilities may be made. 554Prior to the accident on 1 July 2010, the plaintiff had been an active person in both recreational activities and in the workforce. He had previously over many years enjoyed fishing and he had been an A-grade golfer, although his work commitments had curtailed that pursuit prior to the accident. He had been an active person enjoying family life, social life, and I accept his evidence that he enjoyed his work as a Mine Deputy. 555He had worked in the mining industry for approximately thirty years, first taking up employment in 1980 with the Centennial Mining Group. He obtained his qualifications of a Mine Deputy in 1995 and thereafter worked as such at the Southands Colliery, the Newstan Mine, the Mandalong Mine and thereafter at the Awaba Mine. 556Although he had had a number of incidents requiring medical attention, as discussed earlier in this judgment (including in particular injury to the low back, neck and ankle in April 2007, twisted ankle and left knee in December 2007 and a left knee condition in June 2008) he pursued his role as Mine Deputy up until 1 July 2010, performing shift work and overtime. 557The plaintiff's personal life has been severely impacted by his injury, his chronic pain and disabilities, including the need for treatment and two operations. The low back pain suffered before and after those operations and the associated left leg symptoms including numbness and foot drop has, on findings I have earlier made, prevented him from returning to work. In consequence of the injuries and disabilities sustained in the accident he has lost his career as Mine Deputy and has been permanently incapacitated for the last four years. He will, in accordance with findings earlier made, remain permanently and totally incapacitated. That loss has been a significant one. His restrictions, chronic pain and associated disabilities have greatly altered his life experience and this will continue indefinitely. His disabilities, of course, will permanently prevent him from engaging in many of the social and all of the recreational activities he enjoyed prior to the accident. 558In applying the legal test required in determining the plaintiff's non-economic loss for the purpose of s 151G, I take into account the findings to which I have referred and the significance of those findings to the plaintiff having regard to his pre-injury position, which was that he was an active participant in the community and the workforce holding a trusted and responsible position as a Mine Deputy and derived considerable enjoyment from the same. He, before the injury, had a satisfying close relationship with his wife and family. 559I have, of course, had regard to the submissions that have been made on behalf of both the plaintiff and the defendant. Mr Dooley, on behalf of the plaintiff, submitted that the proper assessment of non-economic loss would be on the basis of a proportion of 60% of the maximum amount which may be awarded under s 151G(2). Mr Joseph of Senior Counsel, for the defendant, submitted that the proportion should be 25% of the maximum amount. 560Upon a consideration of the matters to which I have referred, I have concluded that a proper entitlement of non-economic loss under s 151G(2) in this case, is a proportion of 55% to the maximum amount that may be awarded, namely, $192,830.

(3) Impairment of Earning Capacity 561The plaintiff claims loss of past earnings on the basis of total incapacity from 1 July 2010 to date of judgment and future loss of earnings on the basis of total incapacity to age 70. 562The question of whether damages for future loss of earning capacity should be calculated to age 65 or to age 70 (or to an intermediate age) will be considered separately: see [668] to [691]. 563The defendant's submission was that for past and future loss of earnings the plaintiff's claim should be assessed upon the basis of partial incapacity (apart from closed periods following the two operations). 564I have earlier referred to the medical evidence relevant to the issue of the plaintiff's earning capacity and I will deal with specific parts of that evidence below. Before doing so, I turn to relevant principles that apply to such an assessment.

(a) Principles: Determination of Residual or Partial Capacity 565The onus of course lies upon a plaintiff to adduce evidence to establish, for example by medical and other evidence, that he/she suffered injury that has resulted in physical incapacity for all or some work (leaving aside cases involving psychological injury in whole or in part). The medical evidence, as I have earlier discussed, indisputably establishes that the plaintiff in this case is, and has been since 1 July 2010, physically incapable of performing his pre-injury work as a Mine Deputy. The evidence accordingly establishes the basis for a finding of economic as well as physical incapacity. 566The defendant, in its submissions, relied, inter alia, upon the issue from time to time of certificates in the years 2011 to 2012 which certified the plaintiff as fit for selected or restricted duties or for attempting the same. The plaintiff in turn gave evidence of his unsuccessful attempt to return to the defendant on a restricted work basis: at T 77; 97-105; 288-289. 567He also gave evidence of unsuccessful applications for restricted work elsewhere: at T 275-278; 283-303; 311-315; 322-327. 568On Dr Whittaker's evidence, in 2011 to 2012 any residual capacity the plaintiff had had since the accident had been very limited, in particular, to part-time work and then subject to limitations and restrictions. 569The assessment of residual capacity is to be approached in the way discussed in Nominal Defendant v Livaja [2011] NSWCA 121 where it was observed at [65]: "There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation. Thus, Dr Ting stated in his report: 'The functional capacity evaluation results indicate that Mr Livaja has the physical capacity to perform sedentary work 3 hours per day, 5 days per week in a supportive work environment. He does not demonstrate a capacity to work as a Gyprocker or a Formwork labourer. The vocational assessment results suggest that Mr Livaja is not suitable for vocational retraining. Mr Livaja's residual work capacity and limited transferable skills have severely limited his vocational choices to non-skilled sedentary work. Suitable occupations under this category are highly competitive, and Mr Livaja is non-competitive for employment in this job category in the open labour market. At this stage, though he has a physical capacity to perform light to sedentary work on reduced hours, Mr Livaja is on a disability pension and is medically unfit to work. He does not demonstrate an earning potential. Should he ever be certified fit to work, Mr Livaja demonstrates an earning potential of $111.90 gross per week (average weekly wage $708.50; 15 hours/38 hours per week; 40% chance in gaining employment). ... Due to the severe nature of his injuries and the multitude of his disabilities, I envisage that Mr Livaja would have difficulty securing and maintaining any employment.'" 570Where a defendant seeks to establish that an injured plaintiff has a residual capacity, it is subject to an evidential onus. In Mead v Kerney [2012] NSWCA 215, the Court referred to the onus upon a defendant to show that the plaintiff has a residual earning capacity that he is practically capable of exercising. 571In Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, Barwick CJ observed that the lost earning capacity "ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate", a remark, it has been noted, interpreted by Malcolm CJ (Murray and Wheeler J agreeing) in Morgan v Costello [2004] WASCA 260 at [99] as supporting the proposition that: "... The defendant who contends the plaintiff has a residual earning capacity has the evidential burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity" (emphasis added): (see also Kallouf v Middis [2008] NSWCA 61 at [52]; Mead v Kerney, ante, at [25]-[27].) 572There was no evidence adduced by the defendant to satisfy the evidential onus that rested upon it. Dr Harvey did not examine the plaintiff until 30 October 2012. He did not identify any work or jobs that were open to the plaintiff. He simply referred to his assessment of him as being fit for lighter work. There was no attempt by the defendant to adduce evidence that identify what work or jobs were available and/or open to the plaintiff after 1 July 2010. There was no attempt by the defendant to adduce evidence for the purpose of identifying after 1 July 2010 what "practical (as distinct from theoretical) opportunities" were available to him. 573The evidence of Dr Harvey could not, in my opinion, in itself establish a discharge of the evidentiary onus on the defendant to prove, by calling appropriate evidence, what occupations were available and what conditions for the performance of suggested occupations would need to be observed to meet the plaintiff's pain and other disability. The defendant's insurer did not, on the evidence, identify any practical assessments that had been made, if any, of any theoretical residual earning capacity in the plaintiff. 574Finally, the defendant's written submissions and oral submissions did not address the requirements for assessing residual capacity in terms of the tests or approach enunciated in Nominal Defendant v Livaja, supra, or Arthur Robinson, supra. The defendant's submissions made no reference to case law principles that are to be applied in assessing residual work capacity or to the evidentiary matters that such principles require to be established.

(b) Vocational Assessment 575On 7 February 2014, a joint conference was convened between Mr Mark Ravagnani and Mr Sebastian Bass (Exhibit O). There were no differences of opinion between them as to the injuries, symptomatology and disabilities of the plaintiff. Both agreed that Mr Campton demonstrated a highly consistent employment history in the mining industry: Exhibit O at p 45. Both agreed that a limited subset of sales and service employment options provided by Mr Bass may be potentially suitable occupational alternatives for the plaintiff. However, they disagreed "... on Mr Campton's realistic changes of gaining such employment": Exhibit O at p 56. 576In his report dated 15 February 2012, Mr Ravagnani provided a detailed analysis of the plaintiff's background and the factors that faced him, at his age, in exercising any theoretical capacity. These included: (i) Mr Campton lacks specific skills or training which could be easily transferred into more sedentary occupations. Given his exclusively manual work orientation it was unlikely that he would be suited to occupations such as sales. (ii) Mr Campton had not worked, due to disability, since July 2011. He now falls into the category of long-term unemployed. Any extended period of inactivity operates as a barrier to employment in the future: Exhibit O at p 49. (iii) Mr Campton had been assessed as permanently unfit for pre-injury work and would have difficulty with any work in his current state as assessed by the occupational therapist (Ms Ravagnani): Exhibit O at p 449. His assessed potential for re-training and/or redevelopment for more suitable workplace was assessed by the occupational therapist as "negligible" given his ongoing pain, physical limitations, his age and his employment and educational background: Exhibit O at pp 49-50. (iv) Mr Campton lacks the skills or background to re-deploy into more functionally suitable work and he would not be competitive with younger and more skilled jobseekers: Exhibit O at p 50. (v) Mr Campton has been assessed as not being suitable to a clerical role due to his lack of training, qualifications and experience and that "... an analysis of his potential access to the labour market reveals significant and ongoing barriers to employment of any type. His experience of pain with exertion, compromised mobility and lack of endurance will effectively preclude him from regular employment ...": Exhibit O at p 52. (vi) The plaintiff lacks transferable skills, training and experience to re-deploy into more sedentary roles which might otherwise be functionally appropriate: Exhibit O at p 52. 577In the Joint Conclave Report of Mr Ravagnani and Mr Bass, Mr Ravagnani observed that it was the plaintiff's persistent physical symptoms that have had a severe and ongoing impact on his capacity for employment: Exhibit B at p 46. 578Mr Bass provided a report dated 11 October 2012. In the Joint Conclave Report, Exhibit B at p 47, he stated that the vocations listed in that report were "entry-level jobs". He stated: "... Mr Campton's solid work history and overall presentation is likely to satisfy potential employer concerns regarding reliability, and in this regard he may actually be a preferred candidate to younger job applicants ... Mr Campton presents as a man who is 'as good as his word'. If he were to present, every Monday morning, to petrol stations (for example) in his local area and ask for a job start I have little doubt that an employer would 'give him a go'. It may take several iterations to convey his keenness for work; it may also take a job trial or unpaid work experience. However, given an employer's need for staff to turn up on each and every rostered shift, Mr Campton would undoubtedly find appropriate work." 579Mr Bass concluded by suggesting that employers of 'Delivery Drivers' would require reliable employees and Mr Campton would be able to fulfil the requirements of those jobs: Exhibit B at p 47. 580In relation to the opinion expressed by Mr Bass, it is noted: (i) Mr Bass assessed the plaintiff on 11 October 2012. The assessment made in his report accordingly pre-dates the plaintiff's spinal fusion performed on 8 April 2013. (ii) The medical evidence (other than that of Dr Harvey) is strongly against Mr Bass' assertions as to any residual earning capacity in the plaintiff. (iii) In Exhibit F, Mr Campton made a number of observations about his capacity to undertake the various forms of work suggested by Mr Bass: (a) Delivery Driver. The plaintiff observed that the most he could lift on a regular basis would be 5kg. That is in accordance with medical restrictions assessed by examining specialists. Further, he noted that he could not get in and out of a car on a regular basis and was limited to the period of time in which he could drive before exacerbation of back and leg pain. (b) Check-Out Operator and Cashier. He said that standing for long periods of time would be beyond his capacity. That assessment is also in accordance with medical restrictions assessed by examining specialists. (c) Sales Assistant or Sales Person. Mr Campton observed that he would be limited to performing such work for 20 minutes at a time and there would be a need to rest regularly. He considered he would be restricted to bending low to obtain items as a sales assistant. (d) Sales Support Worker. Mr Campton pointed to the restrictions on his ability to walk for long periods of time and to stand for long periods. These restrictions fall within the medical assessments made of him both before and subsequent to the second operation. 581As Mr Bass stated in the Joint Conclave Report, the vocations referred to in his report of 11 October 2012 were what he described as "entry-level jobs", the only basis upon which he identifies the plaintiff's capacity to obtain work from prospective employers was what was said to be his reliability based on his "solid work history". That assessment does not bring into account the ongoing medical assessments of the plaintiff's condition, in particular, the assessments made following the unsuccessful surgery performed on 8 April 2013. 582Finally, I note that Mr Bass' statements in the Joint Conclave Report are in the nature of assertions and not based upon medical and occupational therapeutic analysis. 583Mr Bass' difference of opinion expressed in the Joint Conclave Report, in my opinion, carries little weight. It is not expert opinion based upon subjacent analysis and relevant factual data.

(c) The Evidence and Findings as to Past Incapacity 584The evidence on the plaintiff's disabilities and employability may be summarised as follows:

(i) The Plaintiff's Impairment and Incapacity 2010-2011 585The plaintiff went off work approximately one week after the date of the accident. In the three month period from 1 July 2010 to 1 October 2010 he was attending on Dr Whittaker who noted that he had continuing symptoms including, in particular, low back pain which worsened when lifting anything: Dr Whittaker's report, 20 December 2011. 586Whilst Dr Whittaker in July 2010 certified the plaintiff for restricted duties, it is clear that his symptoms continued and increased leading to Dr Ferch recommending surgery (undertaken on 13 September 2010). Up to that time the plaintiff was receiving treatment by way of medication including Endone and Mobic. Accordingly, although in July 2010 Dr Whittaker envisaged that he could undertake restricted duties, the continuing lumbar pain and left leg pain, from a practical viewpoint, rendered him fit only for very restricted part-time work and then subject to limitations and restrictions on standing, bending, lifting etc. 587In the six week period following surgery the plaintiff was severely restricted: Dr Whittaker's report, 20 December 2011 (Exhibit A at p 7). He continued thereafter with "persistent severe low back pain". It was for that reason that he was referred to Dr Tame at the Hunter Pain Clinic for pain management including diagnostic injections into his lumbar spine. 588The evidence establishes that the plaintiff's continuing pain in the lumbar spine, and his left leg symptoms, remained at significant levels as a consequence of the prolapse of the L4/5 disc and its progression in the manner Dr Ferch explained in evidence. 589Throughout the first half of 2011 the plaintiff remained under Dr Whittaker's care. He also attended in that period approximately eight exercise physiology sessions at Workplace Physiotherapy and six sessions of psychological pain management therapy. 590In April 2011 the plaintiff had a further MRI and a number of consultations with Dr Ferch. 591In November 2011, he had further assessments and treatment at Macquarie Physiotherapy. Dr Whittaker had reported on the plaintiff's: "Severe lower back pain which is unremitting and significantly impairs his ability to sit, stand, move, walk and perform even light activities": Report 20 December 2011 (Exhbit A at p 8). 592Dr Whittaker also there stated that his condition was unlikely to improve to a significant degree in the future. 593In February 2012, Dr Whittaker prescribed Mobic for pain relief. 594It is clear that following surgery the plaintiff remained severely disabled and for all practical purposes totally unfit for work.

(ii) The Plaintiff's Impairment and Incapacity 2012-2014 595In his report dated 12 August 2013, Dr Whittaker observed in relation to the plaintiff that there had, since December 2011, been a progressive decline in function. Persistent left lower limb radiculopathy was noted in early 2012 before a further consultation took place with Dr Ferch in March 2012. 596Following a further MRI and a nerve condition study, discussions between Mr Campton and Dr Ferch turned to the possibility of further surgery, in particular, a spinal fusion. 597In cross-examination, Dr Whittaker was asked about a certificate he had signed for the plaintiff on 13 March 2012 in which Dr Whittaker expressed his opinion that the plaintiff was total and permanently disabled. It was put to him that the terms of the certificate were "totally inappropriate": T 462:40. 598Dr Whittaker responded: "Well, my opinion was that it was very unlikely that he would be able to achieve work in the open labour market, given the significant physical restrictions that were placed upon him ..." 599He again stated at T 463:1-10 that: "My opinion was that he would not be likely to find work in the open labour market." 600Dr Whittaker was asked about Medical Certificates he had given, in particular, in the period March 2012 to August 2012 in which his certificates had stated that the plaintiff should only work four hours a day, three days a week: T 466:40-45. 601It was put to Dr Whittaker: "Q. ...I want to suggest to you that the plaintiff was fit for full-time selected duties from about August 2010 ... right up until the time of at least his second operation. Do you agree with that or not? A. No, I disagree." (T 471:5-10) 602Dr Whittaker accepted that in assessing the plaintiff's capacity to work, and in determining the restrictions that applied to it, he accepted the plaintiff as a "genuine historian": T 472. 603In May 2012, the plaintiff sought further physiotherapy with Ms Key to assist in managing his condition. 604On 28 June 2012, Dr Ferch saw the plaintiff and recommended further surgery. In his report of 5 July 2012, Dr Ferch noted: "... he developed increasing left lower limb symptoms with foot weakness developing. Imaging confirmed progressive collapse of the L4/5 level. The collapse was secondary to the disc rupture ..." 605Mr Campton was cross-examined on his fitness for work. Questions were directed to the period after July 2012 to August 2012. He said he received certificates from Dr Whittaker and accepted that he was fit for suitable work after July 2012. He gave evidence of his job inquiries with Repco. He said he was required to disclose to Repco the restrictions on his capacity. He was told that the company had no positions for him: T 322:30-35. A couple of weeks later he attended Bias Boating "on spec" to see if there was work available but there were no positions. He had inquired with that outlet for counter sales work and work in a storeroom: T 324-5. 606He said he had attended upon BAS Rehabilitation at the request of Coal Mines Insurances in October 2012. 607He said many of the jobs he referred to in paragraph [35] of his Statement required computer skills which he said he did not possess. 608It is clear on the evidence that the plaintiff's condition, so far as his low lumbar/left leg conditions were concerned, had deteriorated in 2012, culminating in Dr Ferch's recommendation for further surgery and the plaintiff's ultimate decision to undergo it. 609Dr Ferch stated that before embarking upon further surgery he discussed the option of surgery with the plaintiff on a number of occasions: T 510:15-17. He said he discussed the risks with him, some of which were "really quite significant" risks: T 510:20-25. 610Dr Grant, Consultant Neurosurgeon, saw Mr Campton for Coal Mines Insurance approximately nine months before the first operation, following which he stated that "Mr Campton will not be able to return to work 'and is' permanently disabled" (Report of 3 June 2011, Exhibit A at p 61). 611An assessment of the evidence, including that of Drs Whittaker and Ferch, establishes that for all practical purposes, the plaintiff was totally incapacitated for work from the date of the accident to the date of the second operation performed on 8 April 2013.

(iii) The Plaintiff's Condition Following Surgery, 8 April 2013 612Dr Whittaker continued the management of the plaintiff's condition following his second operation. In his report dated 12 August 2013, at p 2, he stated that: "Mr Campton's condition in the post operative period has included persistence of left leg numbness, left foot weakness of dorsiflexion and lower back pain." 613He noted that the plaintiff had been referred for physiotherapy treatment. He was also placed upon strong analgesic medications following the surgery undertaken on 8 April 2012. However, he was later taken off them as they led to the development of gastric inflammation. He continued to experience chronic back pain. 614Dr Whittaker also reported on Mr Campton's reduced mobility associated with his abnormal gait and weakness of the left lower limb, both of which were attributed to the disc lesion. Dr Whittaker noted the existence of psychological sequelae due to chronic pain and persistent disability for which he was receiving psychological therapy. 615Dr Whittaker addressed the issue of the plaintiff's "loss of occupation capacity" in his report of 12 August 2013 (Exhibit A at p 15). He stated: "Mr Campton has been unable to return to work since his injury. He was employed as a Coal Mine Deputy at the time of his injury. He is unlikely in my opinion to be capable of any work in the future. Mr Campton has been assessed by Rehabilitation Consultants and has been provided with job seeking assistance by Coal Mine's [sic] Insurance since his injury, but no suitable work has been able to be identified." 616In the same report, Dr Whittaker concluded: "In my opinion, Mr Campton's current diagnoses, current disabilities and restrictions are permanent. They have persisted despite extensive treatment over a period of time that now extends to over 3 years. In my opinion there is little prospect of any future improvement in his condition." 617In cross-examination, Dr Whittaker was asked at T 473: "Q. And indeed, what I want to suggest to you as well, doctor, that after the second operation, right, after a period of rehabilitation, right, after a period of, the second operation being in about March 2013, right? A. Yes. Q. Have you continued to consider the plaintiff restricted for duties or totally unfit? A. I will refer to the certificates and your question, yes I've considered him completely unfit since the operation -- Q. So I see, so he's in fact worse since the second operation in terms of fitness for work? A. Yeah. I take your point that I've put down that he's unfit for work, yes." 618Dr Whittaker went on to state he was "unfit for work in his current state". He disagreed that the plaintiff has been fit for full-time suitable duties since about May 2013: T 473:40-45. 619Dr Ferch provided post-operative reports dated 21 May 2013, 9 July 2013 and 20 August 2013 (Exhibit A at pp 55-57). In the latter report he stated that the plaintiff continued to be limited by numbness of the lateral aspect of his thigh as well as weakness of his left foot. He considered that there was deterioration in his left foot, weakness possibly related to the effects of nerve root compression. 620Dr Ferch gave oral evidence on 27 February 2014. He said that he always had attributed the weakness in the plaintiff's left foot to the L5 nerve problems: T 499:25-30. 621In his Supplementary Evidentiary Statement dated 23 April 2013, at [31]-[36], Mr Campton referred to his attempts to secure light part-time work. He said he had looked on the internet for work but that at that time he could only stand up for short periods of time and could not walk long distances and could not go up and down stairs. For those reasons he said it was difficult to find work that he could do: at [31]. 622As at the date of his evidence (26 February 2014) he said he had not looked on the internet for work advertisements for 12 months or more: T 326:40-45. 623Dr Ferch was taken in cross-examination to a certificate in which he had referred to the plaintiff's fitness as being for "suitable duties" with some prospect for possible improvement. Dr Ferch replied: "When this was discussed with Ian he felt uncomfortable being in terrain with uneven ground because he felt his foot was too weak and that he was prone to falling and there was some difficulty in finding work that was suitable for him. That being said, I encouraged him to return to work if he could and my advice would be the same, I think it better for Ian to be at work if he can, but he is 62 years of age and you know, I suppose pragmatically I'm not sure whether he will return to work." (T 508) 624He was asked further questions on the subject: "Q. As what you've written in that, as it was in May 2013? A. So that was written quite early after his surgery, that was only six weeks after his surgery. Q. Right? A. As we've discussed he had those concerns about a delayed deterioration as he tried to increase his level of activity. I think at the time that was an early post-operative finding. I was somewhat optimistic about the potential for him to get back to work. I suppose over time, my feeling would be that it's less likely that he'll be able to tolerate a return to work. That being said, I would still encourage him to be active. Q. But has he presented as any worse to you? A. Your question is is he the same or is he worse and I think he's not substantially improved post surgery." (T 508-9)

(d) Improvement in the Plaintiff's Condition? 625Dr Ferch addressed the question of possible improvement in the plaintiff at T 501. "Q. --can you expect or anticipate there might be some further improvement from your first, from the last surgery? A. It is possible that there could be further improvement in the L5 nerve. Most of the improvement typically occurs in the first six months, and if you get a good improvement in that time then it often goes on to continue to get better. For symptoms that are exactly the same one year after initial surgery, there's often a degree of permanent impairment, but you really have to wait three years before you can be certain that there'll be absolutely no further improvement. And generally by that point that's it." 626Dr Ferch was asked about a number of certificates he had sent to Coal Mines Insurance, the defendant's insurer. He said as at 22 November 2010 he certified him fit for selected duties: T 501:40-45. See also Exhibit 14. 627He gave the additional following evidence: "Q. And when you expressed that opinion in November 2010 did you understand that to be full-time, 40 hours a week, suitable duties? A. So what I suggested was beginning a graduated return to work, and that would be lifting less than five kilograms, and generally a graduated return to work means four hours a day every second day, so it ends up being three days a week, it's an arbitrary sort of recommendation but it's one that we usually use. Q. For how long? A. The advice is as tolerated, with the intention that the person will increase their level of activity over a period of weeks, so that by the time they get to a couple of months following the treatment, that they're back to suitable duties with a lifting restriction of less than ten kilograms and then once three months has passed, less than 20 kilograms. Q. So what you've said in the report about less than 20 kilograms long-term-- A. That refers to post three months." (T 501:45-T 502:11) 628He provided a further certificate on 16 June 2011 in similar terms (Exhibit 15). He stated: "A. Yes, I think by that time we recognised that progress was slow and hence I was making comments about what else could be helpful to help as a treatment. Q. You say "He may not tolerate a gradual return to normal duties", but you thought he'd be fit for suitable duties? Paragraph - sorry. A. So which paragraph, sorry-- Q. That's 3 I'm trying to-- A. Yes. I've said "he may best tolerate a graduated return to normal duties". I still thought at that point the goal should be a return to normal duties. Q. But you certainly thought he was fit for fulltime suitable duties with restrictions? A. Yes. I considered his work capacity that he be fit for suitable duties, that's right. Q. That's fulltime, not the graduated hourly couple of hours? A. Well, I think at that stage he was struggling and so I don't know that I was specifically asked about what exact timeframe but I think really it's what people tolerate. It's all right for me to say they can work eight hours a day but if they're in severe pain they often won't do that and therefore the graduated time is really just to try and help people be at work as much as they can." (T502:29-T 503:1) 629Dr Ferch was asked: "Q. I'll just ask you this question, doctor. Would it help you in terms of certification to know the various activities the plaintiff has been capable of performing from time to time? A. So certification with regards to what a person is capable of, capacity, the majority of cases when I recommend a return to work programme is not because I believe that person is incapable of doing more than what I recommend. It's simply that I think they're unwilling to tolerate the pain they may experience when they do more. So there is a difference between those and overall people who experience a lot of pain are often better being more active. So I encourage them to be active even if they're in pain." (T 504:26-36) 630He said he had always encouraged the plaintiff to increase movement about his back and encouraged him to bend his back. He had discussed with him stretching exercises for his back in an effort to improve his back pain: T 507:25-30. He said he would encourage him to be in the garden and doing something if he could: T 507:30-35. 631He said that stiffness in the plaintiff's back has been variable and that he certainly had been troubled with stiffness and restricted movement about his back and for that he had been encouraged to increase movement: T 507:40-45. 632Dr Ferch was then cross-examined in relation to the DVD taken of the plaintiff at T 505-507. He said that, if anything, it corroborated the plaintiff's disabilities, in particular, his left foot drop. 633Dr Ferch stated at T 506:39-507:4: "A. Sure. Ian's concerns when I met him related to progressive weakness in his leg and a pain in his leg and the video is limited in the amount of time it actually shows him walking but the most instructive times were when it shows his legs walking and there is some variability but the vast majority of those occasions do show a degree of foot drop where he, with his right leg he's able to lift the foot up, on his left leg he tends to slide it and it tends to flop and that's variably expressed but is consistent with a foot drop which you would see in the presence of something like an L5 radiculopathy, which is what I thought was the case for him and I said to him when I met him that in the absence of surgery his weakness in his foot was likely to at least persist and potentially get worse and his pain would remain persistent and surgery carried some change of improving he weakness and I estimated that to be as low as 50 per cent. I think I've written in my report there and 70 per cent chance of improving the leg pain which was the rationale for considering the surgery and based on his symptoms, the imaging findings and looking at him and the surveillance imaging, I would still offer the same treatment if I saw him now." (emphasis added) 634Dr Ferch in re-examination stated he was aware that the DVD was taken at about the time the plaintiff was giving consideration to further surgery: T 510:10-12. 635Dr Ferch was questioned in cross-examination on the plaintiff's fitness as at the time of him giving evidence: T 508. He was asked if the plaintiff was fit for selected duties with some prospect of improvement. He responded: "Q. And that is fit for selected duties with some prospect possible the possibility of improvement, still to come? A. When this was discussed with Ian he felt uncomfortable being in terrain with uneven ground because he felt his foot was too weak and that he was prone to falling and there was some difficulty in finding work that was suitable for him. That being said, I encouraged him to return to work if he could and my advice would be the same, I think it better for Ian to be at work if he can, but he is 62 years of age and you know, I suppose pragmatically I'm not sure whether he will return to work." 636He said he would encourage him to do full-time work "if he could manage it": T 508:35-40. He considered the plaintiff's condition was probably "pretty stable" and perhaps marginally improved: T 508:40-45. He referred to his report of May 2013 and said: "A. As we've discussed he had those concerns about a delayed deterioration as he tried to increase his level of activity. I think at the time that was an early post-operative finding. I was somewhat optimistic about the potential for him to get back to work. I suppose over time, my feeling would be that it's less likely that he'll be able to tolerate a return to work. That being said, I would still encourage him to be active. Q. But has he presented as any worse to you? A. Your question is is he the same or is he worse and I think he's not substantially improved post surgery." 637An examination of the medical evidence as to the plaintiff's physical condition from 1 July 2010 to the hearing of the proceedings in 2014, establishes: (1) That the plaintiff has since that date been physically impaired by the prolapse of his L4/5 disc brought about by the accident. (2) That although he has been under continuing medical treatment, including two operations on his lumbar spine, he has remained with a significant level of pain and disability which has impaired both his working capacity and personal life at many levels. The medical treatment has failed to produce either significant or continuing relief or any increase in his functional capacity. (3) It is plain that the plaintiff's disabilities, including his symptoms of pain, loss of function and impairment of earning capacity, are permanent and in those respects are unlikely to change. (4) The plaintiff, although at times certified as fit for restricted (part-time) duties, his age, his training and experience and the restrictions on his ability to undertake any part-time work together establish that he has been and remains unemployable on the open employment market. (5) The medical evidence, which I accept, in particular that of Dr Whittaker and Drs Grant, Hopcroft and Bracken, establishes that he was, for all practical purposes, totally incapacitated for work both before and after the operation performed on 13 September 2010 and remains totally incapacitated.

(a) Preliminary Observations on Past Economic Loss 638I have previously referred to the medical evidence that establishes that for a period between the first and second operations and at other times, the medical and other evidence (apart from that of Dr Harvey) supports the proposition that the plaintiff had at best a theoretical capacity for limited part-time light duty work (with restrictions) but that a practical assessment indicates that the nature and severity of his ongoing disabilities and symptoms were such that his prospects of obtaining and keeping such work were limited indeed. 639The assessment in this respect requires an examination of the whole of the evidence, including medical certificates issued by treating doctors and the medical opinions expressed in evidence. 640The fact of a limited number of inquiries for light work by the plaintiff in the years 2011 and 2012 is not, as the defendant's submissions suggest, in my opinion, to be taken as evidence of the plaintiff having engaged in "a charade of looking for work": Defendant's Written Submissions at [100]. The evidence plainly establishes that the plaintiff was continuously and seriously disabled up to and following the second operation. In those circumstances, the "charade" submission is a baseless one. The evidence establishes the plaintiff co-operated and participated in rehabilitation, physiotherapy and pain management assessments, some of which at least were arranged by the defendant's insurer, Coal Mines Insurance. There was no suggestion that the plaintiff was other than co-operative and bona fide in relation to his participation in such matters. 641The defendant's lastmentioned submission suggesting a lack of bona fides does not sit well with observations made of him by examiners who have assessed him. Dr Millons in his report of 24 May 2007 to Coal Mines Insurance in relation to earlier injuries (Exhibit 45 at p 1643) observed: "Mr Campton presents as a co-operative man ... He tends to downplay his complaints". Mr Bass, Psychologist, in the Joint Vocational Conclave Report (Exhibit B at p 47) observed: "Mr Campton presents as a man who is 'as good as his word' ...". Ms Hughes, Consultant Occupational Therapist, observed in her report of 1 October 2012: "He [Mr Campton] was friendly and co-operative throughout the assessment and presented as genuine and straightforward in manner. There was no evidence of embellishment of symptoms": Exhibit 54 at p 6. Ms Ravagnani reported: "Mr Campton presented as genuine, stoic and determined but somewhat overwhelmed by his inability to recover fully and return to his pre-injury lifestyle": Report of 10 October 2011, Exhibit O at p 1. 642The medical evidence establishes that, in addition to his pain and loss of function, the plaintiff's psychological wellbeing had also deteriorated. It was noted in evidence that there had been a "Marked psychological effect" from his injury including "depressive symptoms" and a fear of "further aggravation of his symptoms": Dr Whittaker's report of 20 December 2011: (Exhibit A at p 8). See also Dr Whittaker's report of 12 August 2013: (Exhibit A at p 15). 643The defendant's lastmentioned "charade" submission fails to avert to the established interplay or the combination of the ongoing effects of the plaintiff's prolapsed disc, "failed" surgery on both operations, and his associated psychological dysfunction. The submission for the defendant as to the plaintiff's alleged "rather lazy and limited approach to seeking work": (Defendant's Written Submissions at [104]), is unsupported and is contrary to any fair and proper assessment of the evidence.

(b) The Claim for Past Loss of Earnings 644The claim for past economic loss, of course, is to be considered in accordance with the evidence and abovementioned findings as to the plaintiff's physical disabilities and his incapacity due to the injuries sustained in the accident: (i) The period from July 2010 to 13 September 2010 (the date of the plaintiff's first operation). (ii) The period from September 2010 to 8 April 2013 (the date of the plaintiff's second operation); and (iii) The period from April 2013 to date of judgment (December 2014). 645The medical opinions to which I have referred, apart from those expressed by Dr Harvey, strongly support the plaintiff's economic loss claim in respect of past and future loss of earnings. 646In calculating past economic loss, I note allowance is to be made for the following matters: (1) The plaintiff has received payment of wages and compensation. It appears from submissions that he was paid wages over a period of 78 weeks. Whether such payment of wages made provision for shift allowances, bonus or other payments (if properly payable) is not disclosed in the submissions. Whether such matters are recoverable is a matter to be considered by the parties in relation to calculation issues. (2) In the period from 1 April 2012 to 30 September 2012 the plaintiff underwent the skin cancer treatment. The plaintiff would have been prevented from working in that period regardless of the injuries sustained in the subject accident. 647It was noted in the submissions for the plaintiff that at the time of injury he was earning wages at $2,018 net per week, but that economic loss awards are limited by the statutory ceiling prescribed by the provisions of the Workers' Compensation Act. 648Calculations of past economic loss are made in accordance with the provisions of Part 3 Subdivision 2E of the Workers Compensation Act. 649On the basis of the above findings, the plaintiff was totally incapacitated from 2 July 2010 to date. In accordance with the prescribed maximum weekly wage rates, I calculate past loss of earning as follows, making a deduction of 10 weeks in the period 1 April 2012 to 30 September 2012 in respect of the plaintiff's incapacity as a result of the skin cancer treatment: 02.07.10-30.09.10: 13 weeks x $1716.40 npw $22,313.00 01.10.10-31.03.11: 26 weeks x $1739.30 npw $45,222.00 01.04.11-30.09.11: 26 weeks x 1714.50 npw $47,851.50 01.10.11-31.03.12: 26 weeks x $1805.00 npw $46,930.00 01.04.12-30.09.12: 16 weeks x $1838.70 npw $29,419.20 01.10.12-31.03.13: 26 weeks x $1868.50 npw $48,581.00 01.04.13-30.09.13: 26 weeks x $1903.70 npw $49,496.00 01.10.13-31.03.14: 26 weeks x $1924.30 npw $40,410.00 01.04.14-30.09.14: 26 weeks x $1948.80 npw $50,668.80 01.10.14-17.12.14: 11 weeks x $1974.00 npw $21,714.00 $402,605.50 650The lastmentioned total figure will require appropriate adjustments in respect of set-offs or deductions in respect of prior payments of wages or compensation in final calculations.

(c) Redundancy Payment 651The plaintiff's employment at the Awaba Colliery was terminated when the mine closed on 23 December 2011 (Exhibit Q - letter dated 6 December 2011 from Awaba Colliery to the plaintiff). His employment was apparently terminated under the Awaba Colliery Certified Agreement 2008, Termination clause. 652In accordance with Exhibit 51 he received a "ETP" (payment) of $6,303.33. It was contended for the plaintiff that there was no detail in relation to this payment but that it was not related to the accident. It was submitted that there was no evidence sufficient to provide a basis for deducting that amount from future economic loss. The payment was referred to in submissions as a "redundancy" payment. It was submitted for the plaintiff that it was not a payment causally related to the subject accident and therefore should not be deducted from damages that are awarded: Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [51]-[63]. 653Whether or not payments in the nature of a redundancy payment may be offset against an award of damages was the subject of observations by Macfarlan JA (with whom Giles JA and Hammerschlag J agreed) in Jandson Pty Ltd v Welsh, supra. His Honour, in that case, noted that the termination was brought about by restructure of the employer company and that the test was whether or not the payment was causally related to the accident for which damages were sought. In that respect his Honour stated: "62 My conclusion is therefore that the redundancy payment was not causally related to the respondent's accident. The resulting is that the redundancy payment should not be deducted from the respondent's damages. (See H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths at 444). 63 The reason why it is not deductible in these circumstances is that on the evidence it would have been received in any event ..." 654I have concluded that insofar as the payment is accepted as having been paid by way of redundancy on the basis of what was referred to as a "voluntary redundancy" in the defendant's written submissions (at [85]), that the defendant is not entitled to the credit of $6,303.83. 655Whilst there was a lack of specificity as to the nature of the payment made on the termination of the plaintiff's employment, on the evidence, the "ETP" payment of $6,303.33, was a lump sum paid upon closure of the mine, all employees either having their employment terminated or being offered employment at a different mine. There was no affirmative submission made that the payment was not, or could not, be regarded as a redundancy payment. Accordingly, the plaintiff's employment, having been accepted as related to redundancy occasioned by the mine closure, on the authority of Jandson Pty Ltd v Welsh, supra, it is not to be characterised as a payment made by reason of injury sustained in the course of employment and is therefore not a deductible component from an award of damages for the plaintiff's economic loss.

(d) Past Loss of Superannuation 656The plaintiff has made a claim for past loss of superannuation in the amount of $38,158.45. 657The defendant, however, submitted that the plaintiff should not receive an award for past loss of superannuation on the basis that he suffered no loss of superannuation. 658Section 15C of the Civil Liability Act 2002 is in the following terms: "15C Damages for loss of superannuation entitlements (1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based. (2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions." 659The plaintiff's claim for a payment of $38,158.45 in respect of past loss of superannuation was calculated on the basis that that figure represents 11% of $346,895 (being the amount the plaintiff claims in respect of past loss of earnings): Plaintiff's Damages Schedule at p 2. 660Although no authorities were cited by the plaintiff in support of his claim, this calculation does accord with the reasoning of the Court of Appeal in Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728. In that case, Basten JA (with whom Allsop P agreed), considered that the purpose of s 15C was to "simplify calculations and not to impose an arbitrary cap on the amount allowed by way of superannuation entitlements": at [57]. The Court of Appeal determined an allowance for past loss of superannuation should be calculated at 11% (that is, the "relevant percentage" of 9% per s 15C, on the basis of net earnings) of the total net loss of earnings. This approach has since been adopted in this Court: see, for example, De Beer v The State of New South Wales [2009] NSWSC 364 at [235]-[236]; Strike v Fiji Resorts Limited [2012] NSWSC 1271 at [81]. 661The defendant submitted that because the plaintiff was paid his normal wages to 23 December 2011 he suffered no loss of superannuation until that time: Defendant's Synopsis of Damages at p 2. As noted above, the defendant submitted that the plaintiff would not have returned to work after the mine closed on 23 December 2011. It was noted that when the mine closed, the plaintiff accepted a voluntary redundancy payment in the amount of $33,051: Defendant's Written Submissions at [85]. 662In the defendant's written submissions it was argued at [117]: "The Plaintiff received his wages for 78 weeks and superannuation until redundancy/terminated. Thus any claim dates from then. The Plaintiff, as he was entitled to, immediately got access to his superannuation entitlements. He has had access since January 2012 to over $300,000. He has been able to invest this, and earn interest on it. Any loss post must take this into account. Further had the Plaintiff sought suitable work, he would have become entitled to superannuation from that employer. The Court must deduct this notional superannuation payment from any claimed loss." 663The defendant did not cite any authority in support of its argument that prior access by an employee to some superannuation entitlements is a factor to be considered when assessing past economic loss for lost superannuation during the period from the date of the accident to the date of judgment. 664I do not consider that loss of a superannuation entitlement should be reduced as a result of the plaintiff's prior access to his superannuation entitlements. 665Having indicatively determined that the plaintiff should receive an award of $402,605.50 in respect of past economic loss, I consider that, based on those calculations, the plaintiff is entitled to $44,286.61 in respect of past loss of superannuation, representing 11% of the plaintiff's award for past economic loss. However, I will provide the parties with the opportunity of making submissions, limited to the calculations for past loss of superannuation benefits.

(5) Future Economic Loss 666In the Plaintiff's Damages Schedule, a claim is made for future economic loss on the basis of the statutory maximum weekly earnings. As noted above, that maximum amount is currently $1,924.30. 667The defendant's Synopsis of Damages document submitted that $50,000 should be awarded to the plaintiff in respect of future economic loss, including a buffer for superannuation loss. 668It is necessary to first address the issue as to the plaintiff's likely retirement age but for the accident.

(a) The Issue of Retirement Age 669There was evidence that Mine Deputies are in high demand throughout New South Wales: Letter dated 17 July 2011 from Ted Botham, Exhibit N at p 1. Mr Botham stated that he has had extensive experience in the coal mining industry and he holds a NSW Mine Deputies Certificate. Exhibit N indicates that prospective employers include both mining contracting companies as well as mining companies. 670Mr Botham's evidence was that average annual earnings for Mine Deputies range from $150,000 to $220,000. (I assume these are gross earnings.) 671Mr Botham stated that in his experience Mine Deputies have continued to work beyond 60 years of age in that role. However, he noted, they would be subject to a full functional medical examination to ensure suitability. 672The plaintiff's case is that, but for the injuries sustained in the subject accident, he would have worked beyond the date upon which Awaba Colliery closed (23 December 2011) and until age 70. 673Mr Howell gave evidence that he was employed by the defendant when the colliery closed and he was transferred to Mannering Colliery: T 407. 674The plaintiff gave evidence that he spoke to Mr Fletcher (who had been the driver of the PJB at the time of the plaintiff's accident) who told him he had been transferred to Mannering Coal Mine: T 47. He also gave evidence that the Under Manager, Mr Trevor Hines, told him that everybody who had been a permanent employee was to be transferred to one of the three mines operated by the Centennial Group: T 47-48. 675As at 23 December 2011, the plaintiff was 60.5 years of age. On the evidence, Mr Fletcher is 6 years older than him. Accordingly, Mr Fletcher was 66.5 years when he moved to Mannering Coal Mine. 676In submissions for the plaintiff it was observed that the defendant was in a position to adduce any evidence that could contradict the above evidence, as well as evidence to refute the possibility that the plaintiff could work to age 70 if he had chosen to. 677In the plaintiff's Evidentiary Statement, Exhibit E, at [21], Mr Campton recorded: "I had intended to work until at least I was entitled to the age pension; if not, until age 70 if I was otherwise fit and healthy." 678Ms Ravagnani noted in her report of 10 October 2011 at p 2, he enjoyed his senior position as a Mine Deputy: "... Mr Campton enjoyed the work and the camaraderie that existed with the underground crew. He stated that he usually worked 44 to 60 hours per week - 'lots of overtime'. Mr Campton clearly stated that he 'wants to go back' underground." (at para 1.3) 679Recognition has been given, in a number of cases, to circumstances in which a basis may exist to assess impairment of earning capacity beyond the age of 65. 680In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 24, McHugh J stated: "There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at the age of 65. However, the financial loss, which flows from that impairment in respect of the period beyond age 65, is of a different measure from the loss for the period up to age 65. It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom." 681In Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342, Mason P identified at least three reasons for discounting the weight of a plaintiff's answer to the question "how long would you have worked if uninjured?". First, it is necessarily a hypothetical question. Secondly, the question is usually posed at a time well in advance of the date on which the plaintiff would be faced with the reality of a retiring on a pension or continuing to work. Thirdly, capacity to work is as relevant as intention to do so: at [4], [5] and [6]. 682In Bridge Printery, his Honour observed at [2], that a court may assume without specific evidence that a plaintiff would, in the ordinary course, probably have continued to work in the pattern exhibited before injury until reaching the age at which the age pension became payable: Dykstra v Head (1989) Aust Torts Rep 80-280. However, Mason P also observed that there was no fixed rule. In a particular case there may be a basis for finding that early retirement was likely or that the plaintiff might have continued to work beyond the ordinarily accepted age of retirement. His Honour referred to the observations of McHugh J in Medlin set out above at [680]. 683In Government Insurance Office v Lazar [1991] NSWCA 123 future economic loss had been assessed by the trial judge upon the basis that the plaintiff'/respondent would have worked until age 62½. Priestley JA stated: "...In my opinion the proper rule is that in deciding on an age to be used in calculating loss of future earnings, and age to which in the trial judge's opinion, a plaintiff should be considered as having been likely to work, the court is bound to act upon the material before it and is bound to draw a reasonable conclusion from the material before it. The material before the court, however, need not be as precise as the submission before the appellants in the present case would require." (at 1-2) 684In that case, it was held that, on the basis of the materials referred to, it was well open to the trial judge to treat the case as a proper one in which to take the figure of 62.5 for the purposes of calculations of future economic loss. See also Knight v Anderson (1997) 26 MVR 105 at 13 per Heenan J. 685Mr Ravagnani in his report of 15 February 2012, Exhibit O at p 51, observed that a recent search of internet-based job vacancies for mine deputies revealed several mine-orientated recruitment firms advertising for positions across Australia. One such database, he recorded, was currently advertising for 143 vacancies of mine deputies with salary packages up to $220,000 per annum. The evidence accordingly suggested that mine deputies were in short supply and could command substantial salaries. Mr Ravagnani observed that employers facing such shortages often have to look overseas for skilled labour. He added: "... Clearly, Mr Campton's skills as a Mine Deputy would have been highly regarded in a labour market where there was a high demand for skilled workers and high levels of compensation." (at p 51) 686The high demand for mine deputies throughout New South Wales and Queensland is also confirmed in Exhibit N, Ted's Solutions and Services Pty Ltd statement dated 17 July 2011 at p 1. 687Exhibit N indicates that opportunities within the industry for persons with qualifications of Mine Deputy are not confined to that particular occupation but extend within the industry to persons employed as "Project Manager" and/or Production Co-Ordinator": Exhibit N at p 1. 688Mr Botham, in Exhibit N, stated that the plaintiff had a skill set applicable to all functions of an underground coal mine deputy with traditional skills as set out in page 2 of his report. 689On the subject of working beyond 60 years of age, Mr Botham's evidence was: "I am aware of Mine Deputies working beyond 60 years (as Mine Deputies) and during the past have engaged many ..." 690Mr Botham further observed: "All of the companies would require the person to complete a full functional medical prior to employment to ensure the person's suitability; thus ensuring their duty of care by not exposing one to further risk. If Mr Campton had not been injured, he would be able to work well beyond his 60 years." (Exhibit N at p 3) 691On the basis of Mr Campton's evidence and the other materials in evidence bearing upon the plaintiff's employment prospects beyond the age of 60 years, I consider that there was a realistic prospect that the plaintiff would have worked beyond the age of 65 at a comparatively senior level. Amongst the factors taken into account in this respect include Mr Campton's enjoyment and high level of satisfaction derived from his work as a Mine Deputy, his health pre-injury, his preparedness to cease A-grade golf so he could apply himself to his occupation, the strong demand for skilled personnel in the mining industry and the very high levels of remuneration potentially on offer. Also to be taken into account, however, is the fact that with increasing age and a relatively secure financial position, the incentive and will to work to age 70 are likely to diminish rather than to remain at previous levels. There is, as the above authorities indicate, a need to balance all of the relevant factors to which attention has been drawn in order to arrive at a reasonable conclusion based on the materials in evidence. 692I should add that the plaintiff did not endeavour to overstate the prospects of him continuing work beyond the age of 65. His evidence on the subject I found to be balanced, sensible and moderated, consistent with his overall impression of being an honest and straight-forward witness with a good career record. 693I have concluded in all the circumstances that the plaintiff has lost a real prospect of maintaining his earning capacity beyond the age of 65. I have determined that his lost opportunity in that respect should be valued upon the basis that he would have continued to work for a further 18 months, that is to say to the age of 66.5 years. I proceed to assess future economic loss upon that basis.

(b) Calculation of Future Loss of Earnings 694On my calculations, if the plaintiff were to work until the age of 67, he would be entitled to $364,847.28 in respect of future economic loss. This is calculated on the basis of the 5% multiplier of 189.6 for a period of four years (the plaintiff is presently 63 years of age). 695I consider that an allowance of 20% should be made in respect of contingencies, even though the future loss to age 67 years is limited to a relatively short period of approximately four years. 696I assess the plaintiff's damages for future loss of earning capacity on the basis that he will remain totally incapacitated for work and on the basis that he would have worked until age 67 but for the accident. Accordingly, he is entitled to an award of $297,877.82 (being $364,847.28 less 20%) in respect of same.

(c) Future Loss of Superannuation 697The plaintiff claimed future loss of superannuation in the amount of $69,589. This was calculated as being 13.36% of the plaintiff's claim for future economic loss on the sum of $520,847: Plaintiff's Damages Schedule at p 2. The plaintiff did not, however, cite any authority to support its calculation at the rate of 13.36%. 698The defendant, as earlier noted, submitted the plaintiff should have total future economic loss calculated at $50,000 including a buffer for superannuation loss: Defendant's Synopsis of Damages at p 2. The defendant did not otherwise make a submission on the plaintiff's entitlement to a payment in respect of future loss of superannuation. 699For the reasons outlined above at [665], I do not consider it appropriate that the plaintiff's entitlement to damages for loss of superannuation should be reduced as a consequence of his previous access to his superannuation funds. 700In De Beer v The State of New South Wales [2009] NSWSC 364, the Court awarded the plaintiff an amount for future loss of superannuation, calculated as being 11% of the total net loss of future earnings: at [237]. The Court noted this calculation was in accordance with s 15C of the Civil Liability Act and the reasoning of the Court of Appeal in Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728. 701I am therefore satisfied that the plaintiff should receive an award for future loss of superannuation. However, I consider that such an award should be calculated at a rate of 11% of the plaintiff's total net loss of future earnings, rather than at the rate of 13.36%, as contended for by the plaintiff. 702Accordingly, having determined above at [696] that the plaintiff should receive an award of $297,877.82 in respect of future economic loss, I consider that the plaintiff is entitled to $32,766.56 in respect of future loss of superannuation, representing 11% of the plaintiff's award for future economic loss.

(a) Past Out of Pocket Expenses 703The plaintiff claims $103,275.00 in respect of past out of pocket expenses made up of $71,776.30 paid by the insurer and $31,499.16 in respect of second operation costs. 704The defendant does not provide a figure in respect of past out of pocket expenses, and states in its Synopsis of Damages that a figure will be advised on judgment. 705In respect of this head of damage, I direct the parties to provide within 7 days to my associate a final sum of past out of pocket expenses.

(a) General Comments 706The plaintiff claims damages for personal care (s 151K, Workers Compensation Act). 707The starting point for the claim is that the plaintiff before the accident was fully independent in all aspects of personal care. 708Further, between the date of accident and the first operation he remained independent in relation to personal care.

(b) Evidence on Past Care 709A joint conference was convened on 17 February 2014 between Suzanne Ravagnani and Claire Hughes. The joint report set out matters of agreement and matters upon which there were differences of opinion. 710Both Ms Ravagnani and Ms Hughes agreed that the plaintiff had injuries and had undergone surgery as follows:

• Multi-level disc prolapse at L2/3, L4/5 and L5/S1 with compression of the left L5 nerve root.
• L4/5 microdisectomy on 13 September 2010.
• Spinal fusion at L4/5 and L5/S1 on 8 April 2013. 711The joint expert report set out the residual symptoms and disabilities upon which they were both agreed. 712In relation to past personal care both Ms Ravagnani and Ms Hughes agreed that Mr Campton had a requirement following surgery for assistance with his personal care consequent to the injury sustained in the accident of 1 July 2010, but disagreed on the extent of assistance and duration required. Details of their assessments are set out below. 713On the subject of domestic assistance (considered below), both also agreed that the plaintiff had a requirement for assistance with internal domestic activities following the accident and after each surgical intervention, but disagreed on the extent of such assistance and duration required. The detail of their opinions in this respect is discussed below. 714In respect of external domestic tasks, both Ms Ravagnani and Ms Hughes agreed that the plaintiff is likely to continue to require assistance with heavy internal domestic tasks and all external domestic tasks, but disagreed on the extent of assistance required. Their opinions in this respect are discussed below.

(c) The Evidence of Mrs Campton 715The plaintiff's wife, Narelle Patrice Campton made two evidentiary statements respectively dated 10 July 2013 (Exhibit L) and 10 March 2014 (Exhibit M). 716Mrs Campton stated that before his accident her husband did all the gardening and tasks outside the house as described at [14], [15] and [16] of Exhibit L. 717She described in detail the activities with which he would assist inside the house: Exhibit L at [18]. 718Since the accident, Mrs Campton said she has had to carry out all of the tasks referred to in Exhibit L with occasional assistance from her son, Lucas, aged 15 years at the time of the statement dated 10 July 2013. 719She said that she has had professional window cleaners engaged on three occasions since the accident and has done it herself on several occasions. She also said that she did the outside lawn maintenance and she has paid people to come in and trim the hedges on two occasions: Exhibit L at [20]. She said that she has also engaged Jim's Mowing to do lawn mowing work on occasions: Exhibit L at [23]. 720Mrs Campton stated that following the plaintiff's operation on 13 September 2010 she looked after her husband virtually on a full-time basis, including in particular, assisting with showering, dressing, bringing him meals, drinks and taking him to and from medical appointments and attend the chemist to obtain scripts/medication: Exhibit L at [26]. 721She was also engaged in taking her husband to and from attendances at the Innervate Pain Program: Exhibit L at [26]. 722Following the operation on 8 April 2013 she said that for a period of approximately six weeks she had to carry out the tasks referred to in her statement. She said that a bed was placed on the ground floor during the six weeks because of the difficulty he experienced getting up and down stairs. He seemed to be in a great deal of pain after the operation and became depressed. He complained in particular, she said, of pain in the back and numbness in both legs: Exhibit L at [28]. 723In her Further Evidentiary Statement, Exhibit M, Mrs Campton elaborated on her career as a school teacher at [4]-[6]. 724In about September 2012, Mrs Campton said she registered with Centrelink and commenced receiving a Job Search Allowance: Exhibit M at [9]. Following the second operation she applied and obtained a Carer's Pension: Exhibit M at [10]. 725Mrs Campton provided details of the extra tasks/duties she says she has been required to undertake both inside and outside the home and to render care and support for her husband: Exhibit M at [11]-[13]. 726In Exhibit M, Mrs Campton referred to activities outside the home in which she has taken her husband to local shops or to lunch or to visit relatives or friends. She said that she attended shops where merchandise of interest to him was sold, in particular, at Bunnings and various bait and tackle shops: Exhibit M at [14]. 727Mrs Campton referred to the purchase of a Quintrex boat in 2012. This, she said, was purchased by her husband following an incident involving one of their sons and his fiancé at Swansea. She said that from her recollection her husband had only been in the new boat on about two occasions, shortly after the boat was purchased: Exhibit M at [17]. 728Mrs Campton referred to and described a number of trips that had been taken to visit her brother and family members on the NSW south coast in which she drove the car, on most of the trips, with them being broken up into stages: Exhibit M at [18]. 729She also provided details as to the circumstances and purposes of other trips: Exhibit M at [19]-[22]. 730In relation to her husband's skin cancer, she recalled that in July 2012 she first became aware of the spots on her husband's head which resulted in his attendance to a skin clinic on or about 25 July 2012. She could not recall whether this was the first consultation, but she recalls that there was some form of excision surgery performed in relation to the spots and tests were conducted: Exhibit M at [23]. 731She said that she and her husband were very relieved after the test had come back negative. She took him back to the clinic in about August 2012 for a further check-up. She said that for about three weeks from July 2012 her husband had an unsightly wound on his head which took about one month to clear up. From her memory by the end of August 2012 the wound had healed: Exhibit M [24]-[27]. 732In relation to their present home, Mrs Campton said they had resided there for 13 years and enjoyed doing so. However, she noticed her husband has had difficulty coping with the slope of the block upon which the house is built and going up and down the internal stairs. She stated that on a number of occasions following his back operation she has discussed with him whether they should sell the house. She said they had spoken about moving houses during which conversations her husband would say things like "we need to move to a one-storey house" or "we need a level block". He also had expressed concern about the amount of work that she was doing around the house: Exhibit M at [25]-[28]. 733Mrs Campton was subjected to a very lengthy cross-examination on 17 March 2014, at T 537-591, and further cross-examination at T 650-658 (re-examination at T 646-650). 734She was cross-examined on a wide range of issues, including family finances, the family use of credit cards (including her own), attendances and purchases made at boating shops and camping shops, various country trips undertaken by her and her husband (including in particular in 2013), the purchase of the Quintrex boat for her elder son, the performance of external domestic work by her, the performance of maintenance work, quotes obtained from contractors (Jim's Mowing and Waratah Professional Tree Care), Mrs Campton's employment as a casual teacher, her retirement from that employment (Exhibit 20), difficulties encountered by the plaintiff in relation to his disabilities, his withdrawal and use of superannuation monies, the purchase of a motor vehicle, her second evidentiary statement, her husband's enquiries for work, discussions between her and her husband concerning the sale of the house, her carer's pension and other matters. 735Mrs Campton was an impressive witness. I carefully observed her whilst giving evidence in cross-examination over an extended period of time. I considered that she answered questions sensibly, at times seeking clarification, but not, in my assessment, in any way being obstructive or evasive. Mrs Campton impressed me as an intelligent and truthful witness and no submissions in those respects have been made to the contrary. 736It was observed in the defendant's written submissions at [144], that Mrs Campton had been called to corroborate her husband's evidence. There was a submission that her second statement was "a forensically driven document" (at [144]) and suggested examples were provided. A further submission was made that "the wife clearly demonstrated a forensic capacity". Whatever that submission was intended to encompass, there was no suggestion that Mrs Campton had knowingly given false evidence. 737I have concluded that her evidence does provide reliable corroborative evidence both as to the nature and the extent of the plaintiff's disabilities and as to the devastating impact that it has had upon him and, consequently, upon his enjoyment and participation in life previously enjoyed prior to the accident.

(d) The First Operation: 13 September 2010 738For a period of six weeks it is claimed the plaintiff, by reason of pain and post-operation recovery, was in need of substantial personal care and assistance. Mrs Campton, it is claimed, rendered most of this care post-operatively. The claim for this six weeks is for care on the basis of eight hours per day: Exhibit L at [26]. 739The claim must be assessed having regard to the assessments undertaken by the occupational therapists, Ms Ravagnani for the plaintiff, and Ms Hughes for the defendant.

(i) Ms Ravagnani's Assessment 740Ms Ravagnani's assessments of past and ongoing care requirements are detailed in her report dated 10 October 2011. At paragraph [6] of that report, Ms Ravagnani sets out the assistance provided by the plaintiff's wife and family. In the 24-week period from the accident, 1 July 2010, to 13 December 2010 (after surgery), assistance provided in respect of domestic assistance (all aspects including transport), was assessed at 14 hours per week. 741Mrs Campton in her statement, Exhibit L, stated: "My husband underwent operation on 13 September 2010. After the operation, for a period of nine weeks, I had to look after him virtually on a full-time basis. I would assist him to and from the showering. I would assist him dressing. I would have to bring him his meals. I would bring him cups of tea and water. I had to take him to and from his medical appointments. I had to go to the Chemist and obtain the scripts; I would obtain the medication. I would take him to and from his attendances at the Innovate [sic] Pain Program. When I was working Lucas would take over and would drive him to and from his various appointments. I would also help him in and out of bed and help him with [h]is showering. During this period, this would take about eight hours per day." (at [25]-[26]) 742Ms Ravagnani, in her report dated 10 October 2011, noted the history of surgical treatment on 13 September 2010 in which she recorded: "... Mr Campton explained that he was 'in agony' after the procedure and was 'bad for a couple of weeks'. His wife took time off work to care for him." (at p 3) 743On 21 September 2010, Dr Whittaker noted in his clinical notes: "Pain in RUQ - worse since surgery (1 week), intermittent - can be very severe for a whole day, then subsides." (Exhibit 42 at p 23) 744On 28 September 2010, Dr Whittaker noted that he was "troubled by tingling in left leg, numbness". He was certified unfit for work: Exhibit 42 at p 23. 745On 12 October 2010, Dr Whittaker noted: "pain in RUQ review - starting to improve from surgery": Exhibit 42 at p 23. 746Dr Ferch saw the plaintiff on 26 October 2010, six weeks following his decompressive surgery. He noted substantial improvement in his left lower limb but that "he remains troubled by aching across his back and finds it difficult to lift because of diffuse back pain": Report 26 October 2010 (Exhibit A at p 34). 747On 28 October 2010, Dr Whittaker recommended hydrotherapy and physiotherapy and possibly transforaminal injections. 748On 26 November 2010, Dr Whittaker noted that the plaintiff was taking "Mobic alone - no benefit from panadeine forte", that he could not do his gym program, and that walking made the pain worse. Swimming had helped: Exhibit 42 at p 24. 749These estimates, in the plaintiff's submissions, are substantially inadequate and do not reflect Mrs Campton's evidence which was at a level in excess of 40 hours per week - the statutory maximum.

(ii) Ms Hughes' Assessment 750Ms Hughes in her report of 1 October 2012 (Exhibit 54), noted that following the first operation the plaintiff told her that the surgical intervention relieved the pressure from the back of his leg but did not relieve his lower back pain (at p 8). By reason of ongoing pain, Dr Ferch referred him to the Hunter Pain Clinic towards the end of 2010 where he came under the care of pain specialists, Dr Tame and Dr Russo. 751Ms Hughes noted that there was no evidence of embellishment of symptoms by Mr Campton and that he was a good historian (at p 6) in her very detailed report upon matters of history of limitation and functional capacity and related matters. Whilst there is no detailed assessment of the personal care tasks undertaken by Mrs Campton, and/or family members in the weeks following the first operation, in her report Ms Hughes noted that the surgery, whilst giving relief in the plaintiff's left leg, left him in the position where lower back pain continued requiring referral for pain management in late 2010. Ms Hughes, on the issue of attendant care needs, assessed the plaintiff's personal care over a three week period after the surgical intervention on 13 September 2010. She stated: "... I believe it is reasonable that Mr Campton required an estimated one hour daily of assistance with personal care activities, including assistance with washing and dressing and also with transferring on and off his bed, chair, toilet and in and out of the shower." Thereafter and continuing Mr Campton stated he has not required any assistance with person care activities." (at pp 45-46) 752Ms Hughes provided a second report dated 8 October 2012 (Exhibit 55), in which, inter alia, she commented upon Ms Ravagnani's attendant care recommendations, in particular, assistance with domestic activities on an ongoing basis. She did not specifically deal with past post-operative care assessments made by Ms Ravagnani.

(e) The Second Operation: 8 April 2013 753Reliance was placed upon the evidence of the plaintiff which described his severe and disabling symptoms following the second operation. 754Mrs Campton's evidence was that she had to provide prolonged care over a period of nine weeks: Exhibit L at [28]; Exhibit M at [12]-[16]. 755In cross-examination, she said she was required to provide substantial care for her husband over a period of six weeks following the first operation and nine weeks after the second: T 583. 756Ms Ravagnani and Ms Hughes agreed that following the second operation on 8 April 2013, the plaintiff required assistance for his personal care consequent upon the injuries sustained in the subject accident and associated disabilities but disagreed on the extent and duration required: Exhibit B at p 22. 757It was noted that the plaintiff was in severe pain and required considerable assistance for the first three months. Because of a lack of tolerance to Oxycontin and Endone, he was weaned off the same after two months. Ms Ravagnani assessed a total of 129.5 hours of care and assistance (as of 14 August 2013). 758Ms Hughes considered the plaintiff was in significant pain and required considerable personal care for the first two months following surgery, as follows:

• One hour daily assistance for the first month (4.3 weeks) following surgery on 8 April 2013;
• 0.5 hours of assistance with personal care for a further month (4.3 weeks) thereafter
• Total: 45 hours 759Dr Whittaker's notes subsequent to 8 April 2013 contain entries for 23 April 2013 recording that he was "confined to bed at home in downstairs lounge", "can mobilise with help around flat area of house, needs assistance with ADLs from Narelle ...". He was prescribed Endone, six tablets per day. 760As at 3 June 2013 the plaintiff was recorded as mobilising well using a stick for uneven ground, but that he still had pain in lower back, and his left leg remained numb. 761As at 3 July 2013, he was recorded as having "complete numbness down both lateral thighs". He was noted as unfit for work. Dr Ferch was then considering a further nerve block injection. 762In the Further Supplementary Evidentiary Statement filed for the plaintiff on 12 September 2013 (Exhibit G), he stated that following his discharge from hospital he was in agonising pain for about two weeks, which tended to reduce over a period of approximately two months. During that time he was on Oxycontin and Endone. 763Mrs Campton in her Evidentiary Statement filed 11 July 2013, Exhibit L, stated: "For a period of approximately 6 weeks after that operation, I had to carry out the same tasks as I have set out above. This time we had to put a bed on the ground floor as he could not get up and down the stairs. He seemed to be in a great deal of pain after this operation and became very depressed. He was complaining of a worst pain in the back and numbness in both legs. This meant I had to be more attentive with him and spend far more time with him; I was with him about 12 hours per day attending to his needs. After that whilst his condition is indeed worse rather than better since the operation, the domestic assistance that I have had to provide has not altered; this was because even without the operation he was not doing anything at all in the house." (at [28]-[29]) 764Mrs Campton's reference to the tasks carried out as stated in paragraphs [26] of her statement, Exhibit L, included assistance with showering and dressing and taking her husband to and from medical appointments, attending to obtain medical scripts and attendances upon the chemist to obtain medications. 765As noted above, in cross-examination, Mrs Campton said she provided post-operative care over nine weeks following the operation on 8 April 2013: T 583. She said her husband started sleeping downstairs after the second operation: T 610. He continued to do so for about six months. In cross-examination, Mrs Campton said she spent 12 hours a day caring for her husband. She was asked: "Q. But clearly I assume nine weeks was intense, but what about during that time you had to do what for him, that is, the nine weeks? A. Lots - just about everything. I found it hard to move/help him out of bed; help him with his exercises that he was supposed to do; help him into the shower, toilet. So most of the physical-type things. Putting his shoes and socks on." (T 615) 766Dr Whittaker assessed Mr Campton's progress following the surgery performed on 13 September 2010.

(i) Care Following First Operation 767I have considered the evidence given by the plaintiff and his wife, along with the medical evidence and occupational therapy evidence. The plaintiff, on the evidence, had a significant level of pain over a period of several weeks following surgery and required daily assistance from his wife. I consider a reasonable period to allow for care in the post-recovery period to be a period of three hours per day over a period of six weeks. 768I calculate care given following the first operation on the following basis: 3 hours per day x 6 weeks x $24.91 per hour = $3,138.66

(ii) Care Following Second Operation 769The evidence establishes that for at least eight weeks the plaintiff's wife was required to provide "considerable assistance" as Ms Hughes observed. The plaintiff was plainly initially in severe pain for two weeks requiring extensive personal assistance. I do not consider Ms Hughes' allowance of one hour per day for the first three weeks, post-operatively, provides an adequate basis for assessment having regard to all the evidence to which I have referred. 770I propose to allow for post-operative care following the second operation as set out below: (i) In the first two weeks I propose to allow care at six hours per day as an assessment at the conservative end of the range. (ii) I consider that thereafter, for the next three weeks the level of pain began to reduce, although the plaintiff was still taking prescribed pain medication, Oxycontin and Endone. I propose to allow personal care at four hours per day for that three week period. 771Accordingly, I consider, on the evidence, a reasonable assessment for personal care rendered to the plaintiff to be six hours per day for the first two weeks and thereafter four hours per day for a further four weeks. 772In summary, I calculate care after the second operation as follows: (i) Post-operative care from 8 April 2013 -two weeks at six hours per day at $27.50 per hour: (6 x 7 x 2 x 27.50 = $2,310). (ii) Thereafter a further four weeks at four hours per day at $27.50 per hour: (4 x 7 x 4 x 27.50 = $3,080).

(iii) Calculation - Total Care Total Post-Operative Care = (i) 2010 $3,138.66 (ii) 2013 $5,390 Total $8,528.66

773I note that subsequent to the second operation Mrs Campton applied for and received a Carer's Pension: Exhibit M at [10]. I have determined that the award received by Mrs Campton by way of Carer's Pension should be deducted from the plaintiff's award for past personal care, in accordance with the principles discussed by Simpson J in Gordon v Truong [2014] NSWCA 97 at [130]. 774Accordingly, I direct the plaintiff to provide to my Associate evidence of the total payments received by Mrs Campton by way of carers pension to date.

(a) Plaintiff's Claim: Section 151K Workers Compensation Act 775The claim for past domestic care is related to three periods as follows: (i) 27 October 10 to 13 March 2013 - 123 weeks, 8.5 hours per week at $25.65 per hour = $26,817.08. (ii) 17 May 2013 to 21 March 2014 - 44 weeks, 8.5 hours per week at $27.70 per hour = $10,359.80. (iii) 22 March 2014 to date of judgment - 40.5 weeks, 8.5 hours per week at $27.70 per hour = $9,535.73.

(b) Past Domestic Assistance 776The plaintiff's case is that before the accident he assisted with domestic tasks including:

• Regularly loading / unloading the dishwasher
• Regularly preparing meals
• Sweeping floors
• Cleaning toilets
• Vacuuming
• Regularly cleaning windows inside and outside
• Regularly doing the shopping as required 777The outdoor tasks he claims were done by him before the accident included:
• Gardening
• Mowing lawns
• Cleaning yard
• Attending to the guttering
• Trimming lawn
• Weeding garden 778He also cleaned and maintained two family vehicles. 779The claim is based upon the premise that Mrs Campton, in large part, had taken over the few internal domestic tasks previously undertaken by the plaintiff and some of the external domestic tasks previously done by her husband. To some extent, these tasks have been performed by their younger son: Exhibit F at [41]-[44]; Exhibit L at [19]-[24], Exhibit M at [11]. 780Exhibit L relates to Mrs Campton's estimate of the additional hours (8.5 hours) she has performed in undertaking internal domestic tasks that her husband had previously performed: Exhibit L at [18]. 781Mrs Campton's evidence was that these external tasks have been undertaken by her with the assistance of her younger son, with contract labour occasionally utilised. 782It was submitted for the plaintiff that her evidence is largely consistent with Ms Ravagnani's opinion: Exhibit O at pp 12 and 32. 783The occupational therapists agree that the plaintiff has needed and continues to need some weekly domestic assistance to perform the tasks he previously undertook. The disagreement relates to the extent of the assistance. 784The plaintiff's submission was that it would be appropriate to assess domestic assistance at 8.75 hours per week from the time of the accident and continuing. 785Mrs Campton was cross-examined on the claim for domestic assistance at T 571-3 (mowing lawns), T 580 (mowing, washing outside of house, washing windows, washing cars, trimming); T 580-581 (shopping); T 581; (servicing cars); (meal preparation, sweeping floors, cleaning toilets/windows, lawns and edges, washing clothes, cleaning bathroom); (washing up, making beds); (other matters) 786Mrs Campton gave evidence as follows: "Q. You had always done the inside domestic, household duties before the accident? A. Yes. Q. And you continued to do those? A. Yes. Q. Your husband's activities before the accident essentially involved those things that were required to do outside the home? A. Mostly, yes. Q. Which included the lawn? A. Yes. Q. The lawn is not a large lawn is it? A. Oh, when I am mowing it, yes. Q. It's essentially flat, is it not? A. It's flat at the front, plantation down the front part's a little bit steep, and the back is sort of. Q. Flat? A. Goes uphill a little bit." (T 571:22-45) 787Additionally: "Q. You are not suggesting it takes two hours to mow the lawn, are you? A. For me? Q. Yes? A. If I mow the whole lawn, and I have a breather in between, yes it does. Q. Two hours? A. Yes. Q. I suggest to you that is an exaggeration given the size of the lawn, do you agree or disagree? A. No, I don't disagree I don't agree. Q. You take a breather because? A. I am tired. Q. The glass, the front of the house needs to be washed with a hose, does it, in respect of the salt air? A. It needs to be washed with more than a hose actually, it needs to get the salt and so forth off, it needs to be washed down, and brushed down as well." (T 576) 788Mrs Campton also gave evidence on the subject of the domestic work she has and does perform as follows: "Q. I think we've agreed that you basically did most of the activities inside the house? A. Em hmm. Q. Right? A. Yes. Q. What you've gone about there, for example, the preparation of meals: Cut up vegetables and peel potatoes. You are not suggesting he can't do that now, are you? A. Oh, he doesn't. Q. You are not suggesting he can't do that now, are you? A. When you say suggesting, what does that mean? Q. You are not suggesting he mightn't do it now but you are not suggesting he cannot do it, that is, cut up vegetables and peel potatoes? A. Put it this way, he doesn't do it. Q. I understand that. What you have suggested is that you have, throughout 2011 this is in your second statement, paragraph 6 you say, "Throughout 2011 I have taken over doing these things" you have described in paragraphs 19-24? A. That's right. Q. But you had always done those things that are involved in paragraph 18, had you not? You had done them? A. No. Q. That is doing the meals, sweeping the floors inside the house, doing the toilets, cleaning the windows? A. No, he used to do those. Q. You say the tasks that have been done since you say you have taken over A. So instead of doing them sometimes, I do them all the time. Q. In terms of those items that you have taken over since 2011, that is, 19-24, that's the next page? A. Hmm. Q. You say, "It takes me the same time, perhaps a little longer than my husband. It takes me three hours to do the lawns and the edges". You have even told us that it's two hours for the lawns? A. And the edges. Q. You say an hour for the edges? A. The whipper snipper is really heavy and it really does hurt me to lift the whipper snipper all around the edges, and sometimes I will stop and I will have a rest and I will start it again, so I don't know, if you want to include me stopping and having a rest, yes, it would take me that long. Q. That's something you had always done - house cleaning, cook meals, washing the clothes and cleaning the bathrooms? A. Yes, he sometimes-- Q. You had always done that yourself in the house before the accident? A. Yes, and so did he, sometimes. When I was working he would sometimes do those things. Q. More often you did them, did you not? A. That's right. More often I did. Q. You were present, as I've said before, when Miss Hughes was speaking to your husband about these activities? A. Hmm. Q. You were responsible for the majority of internal domestic activities before the accident; is that right? A. Most of them, yes. Q. Majority? A. That's true, as most women are, I guess, with exception." (T581:21-582:42) 789Both Ms Ravagnani and Ms Hughes accepted the plaintiff's limitations arising from painful low back, left leg symptoms and loss of function as having reduced his functional capacities. 790Ms Hughes' report of 1 October 2012 provides a detailed review of the plaintiff's occupational/functional status following injury with reference to the division of functional roles performed by the plaintiff and his wife both before the subject accident and since. 791In the part of her report entitled "Conclusion", Ms Hughes wrote: "Mr Campton is currently independent in all areas of self care. He has maintained his independence in some areas of internal domestic activities for which he was previously responsible however his wife is now completing the majority of these tasks. Mr Campton's wife is also responsible for the majority of the external domestic activities for which Mr Campton was previously responsible however some of these tasks have been neglected. In view of the injuries sustained in the accident it appears that Mr Campton has significant functional limitations which prevent him from participating in activities which require prolonged sitting, standing, walking, bending, pushing, pulling and lifting greater than five kilograms. As a result Mr Campton has been unable to return to his much loved job as a deputy in the mines. He has also been unable to engage in external domestic activities and leisure pursuits which he did prior to the accident. At his current level of function I believe Mr Campton requires assistance with the external domestic activities for which he was previously responsible. It is hoped that following (probable) surgical intervention Mr Campton's functional capacity and pain levels will improve such that he may be able to return to some of his previously enjoyed external domestic activities and leisure pursuits." (Ms Hughes' report at p 45) 792I now turn to the evaluation/quantification of the claim for future domestic care.

(c) Conclusion: Past Domestic Care 793The evidence, in my opinion, supports the following findings: (1) The plaintiff, before the accident, assisted his wife by performing some internal domestic chores himself. These, in particular, included cleaning tasks and some food preparation. These were done by him only on a limited basis. This I assess on the evidence, at three hours per week. Since the accident he has not been capable of assisting with or undertaking such tasks. (2) Prior to the accident, Mrs Campton undertook the majority of internal domestic tasks. (3) Prior to the accident, the plaintiff performed external domestic tasks. These related to lawn mowing, limited gardening, house maintenance and window cleaning. Since the accident these tasks have been beyond his physical capacity. (4) Since the accident, Mrs Campton, her younger son, and on a few occasions a contractor, have undertaken tasks previously performed by Mr Campton. I estimate on the evidence that the performance of the external tasks previously undertaken by the plaintiff has been performed and continues to be performed by Mrs Campton, her son, and on a limited basis, by a contractor, on a conservative basis, at 3.5 hours per week.

(d) Internal Domestic Tasks 794The plaintiff and his wife frankly stated that Mr Campton's contribution to internal domestic tasks was limited. Before the accident the majority of such tasks had been undertaken by Mrs Campton. 795I accept the plaintiff and his wife as having given a frank and honest account to Ms Ravagnani and Ms Hughes and to the Court in relation to the pre-and post-injury facts subjacent to the claim for past and ongoing domestic care. 796Ms Ravagnani assessed the plaintiff's needs in respect of "Inside Tasks" in her report at [5.4] as requiring assistance at 5.5 hours per week with an additional allowance for "spring cleaning" based on 0.614 hours per week. 797Ms Hughes believed the plaintiff required ongoing assistance with internal domestic assistance since the accident and continuing as a total of 0.73 hours weekly. This assessment is based upon making an allowance for two of the five tasks Ms Hughes allowed for in calculating the above amount of 4.73 hours in respect of the post-surgery periods. 798I consider that the ongoing assessment for future internal domestic care should bring into account the five tasks referred to at p 46 of Ms Hughes' report, namely:

• Vacuuming - 1 hour per fortnight
• Sweeping and mopping - 1 hour per fortnight
• Laundry - 2 hours per week
• Internal window cleaning - 1 hour per month
• Washing up - 1.5 hours per week 799Ms Hughes accepted the plaintiff's account of having performed such internal tasks on a limited basis - sharing the sweeping, mopping, and vacuuming with his wife. She accepted that vacuuming, in particular, aggravated his back pain (at p 29). The purchase of a long handled dustpan was suggested by Ms Hughes as a means of permitting him to continue with sweeping tasks. She suggested a light weight mop would enable him to resume his former mopping tasks. 800Whilst it is possible to find other means of performing domestic tasks, it is also necessary to bring into the assessment other factors, such as the severity and nature of the plaintiff's ongoing low back pain and his loss of flexion following fusion of his L4/5 and L5/S1 levels. In taking into account, to the extent possible, all relevant factors (given the fact that estimates of time spent on internal tasks are inevitably imprecise), and having due regard to the medical evidence as to the plaintiff's condition before, during and since the two operations, and the fact that the surgical procedures failed to produce improvement in symptoms or function, I consider a proper assessment for past internal domestic assistance to be 2.5 hours per week. 801At the domestic rate of $25.65 per hour, I calculate the plaintiff's claim for past internal domestic assistance since the date of the accident as follows: 233 weeks x 2.5 x $25.65 = $14,941.13. 802In relation to future internal domestic assistance, taking all relevant matters into account, I consider that the same level of assistance should be allowed, namely 2.5 hours per week (as against Ms Ravagnani's assessment for "Inside Tasks" of 5.5 hours per week, plus 0.614 for "Spring Cleaning"). The relevant calculation of damages is set out below. 803Accordingly, having regard to the plaintiff's life expectancy (23.79 years), I calculate the claim for future internal domestic assistance as follows: 2.5 hours per week x $27.70 per hour = $69.25 p/w x 5% multiplier for life expectancy (721.3) less 15% for contingencies = $42,457.52.

(e) External Domestic Assistance 804Ms Ravagnani's report sets out pertinent details as to the outdoor domestic tasks which the plaintiff maintains are beyond his capacity due to the accident-caused disabilities. The tasks include: home maintenance repairs, lawn care (since the accident largely undertaken by his wife), gardening, cleaning and maintenance of outdoor areas, taking out the garbage bins, window cleaning (at pp 5-6), car cleaning and maintenance. 805Ms Ravagnani stated that even with occupational therapy, physical treatment and exercise directed to maximising the plaintiff's independence, he will require regular assistance with the heavier aspects of the domestic routine inside and outside the home (at p 7). Her assessment for assistance in relation to home maintenance (includes cleaning outside windows, four hours per month) was one hour per week, gardening (lawn care and outside cleaning) at one hour per week, and car cleaning and maintenance at 0.5 hours per week. 806Ms Ravagnani's assessment of the plaintiff's domestic needs ("Inside tasks") and external and other tasks, including gardening, lawn, outside clearing including cleaning of window, car cleaning and maintenance was, as noted above, a total of 8.6 hours per week. 807Ms Hughes also was of the opinion that the plaintiff required assistance with those external domestic activities for which he was previously responsible as detailed on p 47 of her report, totalling 2.38 hours weekly. 808Upon consideration, I consider that domestic assistance in respect of external domestic assistance, at a slightly higher level than Ms Hughes' assessment, is reasonable in respect of both past and future external domestic assistance. I assess domestic assistance at three hours per week. 809I have considered whether the costs of such assistance is to be assessed at the rate of $27.70 per hour or at a commercial rate of $44.15 per hour as claimed by the plaintiff. The evidence as to whether some or all of such assistance will be provided commercially or otherwise does not permit any precise prediction as to whether the plaintiff will engage assistance on an ongoing commercial basis should he remain in his present home or in an alternative home. 810It was submitted for the plaintiff that whilst the internal domestic tasks are likely to be undertaken by Mrs Campton, the external domestic tasks are likely to be more properly and reasonably performed by contract labour: Plaintiff's Written Submissions at [241]. 811It was submitted for the defendant that there should not be an award at commercial costs where there is available to the plaintiff an alternative non-commercial source: Defendant's Written Submissions at [208]. The decision in Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370 at [148] was cited in support. The defendant referred to the plaintiff's wife, son and girlfriend as possible persons who could perform work such as external domestic work. 812On this aspect, I note the following: (1) As to the continuing/future claim for what has been termed by Ms Hughes as "External Domestic Tasks" discussed above, the claim for the costs associated therewith, of course, do not relate to matters concerning the personal care for which Ms Campton has since 2011 been entitled, initially to a Newstart Payment and later to a carer's pension. In those circumstances, no question of possible "unjust enrichment", arises as discussed by Simpson J in Gordon v Truong [2014] NSWCA 97, at [130]. As her Honour there observed, the carer's pension in that case, as in the present case, is granted for the purpose of enabling the carer to provide care to the plaintiff. The claim for external domestic assistance relates to the need for replacement services for a different purpose - to maintain the property in question (the house and cars). (2) The evidence does not establish that the plaintiff has available a satisfactory alternative means for having external domestic services provided, such as gratuitous services to be provided in the future by family members. First, the evidence established that Mrs Campton undertook heavier tasks, such as lawn mowing, with difficulty. Second, the evidence was that the plaintiff's younger son was expected to move out of home sometime this year. This is a case where the factual circumstances as established permit an inference to be drawn that Mrs Campton was unlikely to continue performing heavy external tasks and it is apparent that paid commercial domestic care for external tasks is and will be required to undertake those tasks which were formerly undertaken by the plaintiff. (5) There is, of course, a need to ensure that such damages as are awarded for external domestic services are reasonable, taking into account, in particular, the evidence as to the assessed need, and the possibility that other contingencies may have reduced the need, for such services even if the accident had not occurred (for example, unrelated disability, transfer to smaller premises).

(f) Calculation of Claim for External Domestic Services 813I calculate the plaintiff's claim for external domestic services on the following basis:

1. Past Domestic (External) Services: (i) 27 October 2010 to 26 October 2011, 52 x 3 hrs p/w $25.65 = $4,001.40 (ii) 27 October 2011 to 26 October 2012, 52 x 3 x $25.65 = $4,001.40 (iii) 27 October 2012 to 30 April 2013, 26.5 x 3 x $25.65 = $2,039.18 (iv) 1 May 2013 to 26 October 2013, 25.5 x 3 x $27.70 = $2,119.05 (v) 27 October 2013 to 17 December 2014, 60 x 3 x $27.70 = $4,902.90 Total $17,063.93

2. Future Domestic (External) Services (i) The commercial rate in respect of such services is $44.15 per hour. (ii) The hours required for such assistance is 3 hours per week. (iii) The plaintiff's life expectancy is estimated at 22.85 years. (iv) The estimated hours as per (ii) is to be adjusted downwards in order that allowance is provided for the specific contingencies referred to in subparagraph (5) to allow for the prospect that the plaintiff's existing home will be sold at some time in the future and the level of assessed external domestic services will not be required. 814Three hours per week x $44.15 per hour = $132.45 p/w x (5% multiplier for life expectancy of 23.79 years (721.3)) less 15% for contingencies = $81,205.76.

(g) Plaintiff's Personal Care Needs Equipment 815In her report of 10 October 2011, Ms Ravagnani at [5C] identified components of the plaintiff's personal care requirements and set out recommendations as to meeting them in terms of: (i) Occupational therapy. (ii) Physical treatment and exercise. (iii) Equipment to ensure ongoing independence and safety. 816The discussion that follows concerns the claim in respect of the plaintiff's equipment needs. 817In her report, Ms Hughes observed that the plaintiff has a requirement for specialised aids or equipment to assist with maximising independence for normal daily activities. These were limited to:

• Laundry trolley
• Enjo swivel mop
• Adjustable height kitchen stool
• Non-slip bath mats
• Long-handled dustpan 818Ms Ravagnani specified the equipment needed for maximising the plaintiff's independent function, minimising symptom aggravation and ensuring comfort and safety: Report 10 October 2011 at [5.2]. 819Unlike the items listed by Ms Hughes, most of the items identified by Ms Ravagnani were directed to the provision of aid as a means of accommodating and providing support and relief in respect of the plaintiff's symptoms and his physical condition, in particular his permanent impairment resulting from lumbar disc lesion and spinal fusion. 820In the conclave held on 17 February 2014, attended by Ms Ravagnani and Ms Hughes, equipment items were considered. A Schedule of Personal/Domestic Care and Other Items was prepared as a result and marked MFI 29 in these proceedings. 821The equipment items were listed and discussed by Ms Ravagnani at [5.2], pp 10-11 of her lastmentioned report. The Appendix to that report listed equipment details, including the identity of equipment suppliers and a price guide. 822Also attached to Ms Ravagnani's report was a Summary of Future Needs Costings which sets out details of the service, equipment or treatment required, therapeutic rationale item cost, replacement intervals, one-off costs and details of annual costings. 823The equipment recommendations of Ms Ravagnani are as follows (as per report 10 October 2011 at [5.2]): "a) Electric adjustable recliner/Assist-A-Lift chair - Mr Campton requires an easily adjustable recliner to allow him to sit comfortably at home and to put his legs up as required. The assist-a-lift function may become more necessary as he ages or if his condition deteriorates further in the future. These cost around $2750 and should be replaced every 10 years. Source: Independent Living Centre b) Electric adjustable bed - Mr Campton requires an electric adjustable bed to improve his comfort in lying and bed mobility (particularly as he ages). These cost $6500 and should be replaced every 10 years. Source: Independent Living Centre c) Pillow - Mr Campton's sleep may be improved by a good quality supportive pillow such as a "memory foam" pillow. The cost of this pillow is $230. It should be replaced every 3 years. Source: Independent Living Centre d) Sit/stand stool - Mr Campton requires a good quality sit/stand stool which will allow him to undertake light domestic or recreational tasks in supported standing. These cost $580 (including delivery) and should not need replacing. Source: Independent Living Centre e) Motorised scooter - As a result of his impaired mobility Mr Campton would benefit from a motorised scooter for outings and community situations which would be prohibitive because of the amount of walking involved. These scooters cost around $6000 and should be replaced every 10 years. Source: Independent Living Centre f) Wheelchair - similarly Mr Campton should be provided with a lightweight manual wheelchair for periods of ill health, surgery or injury or for situations requiring arduous amounts of walking (and where he is unable to use the scooter). A basic chair costs $732 and should only need replacing every 10 years as it will only be used occasionally. Source: Independent Living Centre g) Shower chair - to improve safety in the shower Mr Campton will require a good quality shower chair. These cost $95 and should be replaced every 3 years. Source: Independent Living Centre h) Hand-held shower - for use with the shower chair. Costs $115 - replace every 5 years. Source: Independent Living Centre i) Non-slip mat - for the shower to improve his safety. $30 per year. j) Basic assistive device kit - Mr Campton requires this kit which contains four items to assist with reaching, self care and dressing. The kit consists of a Handi-Reacher, Round Bath Sponge, 610 mm Shoehorn and a Stirling toilet frame (see Appendix). The kit costs $169 and should be replaced every 2 years. Source: Independent Living Centre k) Ergonomic adjustable office chair - Mr Campton requires an adjustable ergonomic office chair for computer work at home. The most suitable chair would be a Bambach Saddle Seat (see Appendix). These cost $1000 (plus $100 delivery) and should be replaced every 10 years. Source: Independent Living Centre; wvm.bambach.com.au l) Electric adjustable computer desk - Mr Campton requires an adjustable office desk for use with the Bambach seat. These seats sit quite high (the client is almost in supported standing) and are difficult to use with a standard desk (particularly for a tall person such as Mr Campton). A suitable desk will cost $1200 (includes delivery) and should be replaced every 10 years (see Appendix). Source: Independent Living Centre m) Lightweight-luggage - Mr Campton will have difficulty with heavy luggage when travelling and would benefit from lightweight, durable luggage such as the Samsonite Cosmolite 20" which is also very easy to handle (see Appendix). These cost $499 and will need to be replaced every 5 years. Source: Sydney Luggage Centre n) Memory foam diffuser cushion - this type of portable cushion could he used to improve Mr Campton's seated comfort at restaurants, theatres or on an aeroplane. These cost S89 and should be replaced every 3 years. Source: Independent Living Centre o) Footwear - Mr Campton requires well fitted, soft leather, supportive shoes to improve his standing and walking tolerance (and ones that minimise the risk of tripping and falling). Good quality walking shoes cost around $200 per pair. Mr Campton requires 1 pair per year. Source: Ecco Shoes p) TENS machine - as stated, Mr Campton uses TENS machine to help manage his painful symptoms. This will need replacing every five years at a cost of $280 (includes postage). He will also require a regular supply of pads which will cost around $80 per year. Source: http: //www.medic2000.com.au q) Heat packs - Mr Campton requires a regular supply of heat packs to treat his painful symptoms. The Bed Buddy back wrap cost $24 each. He requires one per year. Source: chemist online r) Equipment maintenance and Repairs - Mr Campton will require an allocation of funds to cover the cost of equipment maintenance and repairs (includes electric bed, recliner, scooter, wheelchair etc). Mr Campton will require $1000 per year." 824The "Summary of Future Needs Costings" prepared by Ms Ravagnani has been reproduced as a schedule to this judgment: (Schedule B) 825Having regard to the opinions of both Ms Hughes and Ms Ravagnani, I have determined the plaintiff requires the following equipment items by reason of his accident-caused disabilities:
• Sit/stand stool ($580, does not require replacement)
• Non-slip mat ($30, requires replacement every year)
• Heat packs ($24, requires replacement every year)
• Memory foam diffuser cushion ($89, requires replacement every 3 years)
• Electric adjustable recliner ($2,750, requires replacement every 10 years)
• Basic Assistance Device Kit ($169, requires replacement every 2 years)
• Grab rail in shower ($176, including installation fees)
• Supportive pillow with memory foam ($230, requires replacement every 3 years)
• Shower chair ($95, requires replacement every 3 years)
• Good quality shoes ($200, requires replacement every year) 826In making allowances for the costs of those items, I have adopted the price estimates contained in the report of the occupational therapy conclave and the report of Ms Ravagnani dated 10 October 2011. 827I have determined that the plaintiff will require the items listed at [825] above for the next 20 years. Accordingly, allowance must be made for replacement of some of those items. 828I have also determined that the plaintiff's entitlement to damages in respect of his equipment needs should be subject to a 15% deduction for contingencies, as well as the usual deductions for deferred payment. 829Accordingly, the plaintiff is entitled to the following amounts:

(i) Items that do not require replacement Item Current Cost Entitlement (including contingencies deduction) Sit/stand stool $580 $493 Grab rail in shower $176 $149.60 TOTAL: $642.60

(ii) Items that require replacement every year Cost Current Cost Total cost over 20 years (including deferred deductions) Entitlement (including contingencies deduction) Non-slip mat $30 $384.53 $326.85 Heat packs $24 $309.04 $262.68 Good quality shoes $200 $2,523.47 $2,144.95 TOTAL: $2,734.48

(iii) Items that require replacement every 2 years Cost Current Cost Total cost over 20 years (including deferred deductions) Entitlement (including contingencies deduction) Basic Assistance Device Kit $169 $1,054.53 $896.35 TOTAL: $896.35

(iv) Items that require replacement every 3 years Cost Current Cost Total cost over 20 years (including deferred deductions) Entitlement (including contingencies deduction) Memory foam diffuser cushion $89 $419.10 $356.24 Supportive pillow with memory foam $230 $1,083.07 $920.61 Shower chair $95 $447.36 $380.25 TOTAL: $1,657.10

(v) Items that require replacement every 10 years Cost Current Cost Total cost over 20 years (including deferred deductions) Entitlement (including contingencies deduction) Electric adjustable recliner $2,750 $4,438.50 $3,772.73 TOTAL: $3,772.73

830Having regard to the above, the plaintiff is entitled to a total sum of $9,703.26 in respect of his future equipment needs.

Plaintiff's Physical Treatment/Review Requirements 831On the evidence, the plaintiff requires physical treatment and review over the next 20 years. The relevant 5% multiplier is, therefore, 666.4. 832The plaintiff requires occupational therapy review as he ages. I agree with the joint opinion of the occupational therapy conclave that a review every three years is appropriate. I accept Ms Ravagnani's costing (contained in her report dated 14 August 2013 at p 4) of $2,512 for attendances with an occupational therapist over a six-month period, followed by 4 hours of review every 3 years, which amounts to $209.33 per year ($157 per hour). At a weekly rate, and applying the 5% multiplier, the plaintiff is therefore entitled to an award of $2,682.64 in respect of future occupational therapy review. 833The plaintiff also requires future physiotherapy and other physical treatment attendances, such as therapeutic massage or acupuncture. I propose to make an allowance of 16 hours per year, at a cost of $95 per attendance. Calculated at a weekly rate, and applying the 5% multiplier, the plaintiff is therefore entitled to an award of $19,479.38 in respect of future physiotherapy and other physical treatment attendances. 834In addition, the plaintiff will require annual assessment and review by a podiatrist (7 hours per year at a rate of $95 per hour). I accept Ms Ravagnani's annual costing of $665 in respect of this. Calculated at a weekly rate, and applying the 5% multiplier, the plaintiff is therefore entitled to an award of $8,522.23 in respect of future podiatrist attendances. 835I further accept that the plaintiff's ongoing exercise needs will require him to obtain an annual gym membership. I accept Ms Ravagnani's annual costing of $803.40 in respect of this. Calculated at a weekly rate, and applying the 5% multiplier, the plaintiff is therefore entitled to an award of $10,295.88 in respect of his gym membership. 836Accordingly, the plaintiff is entitled to a total sum of $40,980.13 in respect of future physical treatment and review, calculated as follows:

• Occupational therapy: $2,682.64.
• Physiotherapy and physical treatment: $19,479.38.
• Podiatrist: $8,522.23.
• Gym membership: $10,295.88.

GP Attendances 837I accept that the plaintiff requires 4 GP visits each year. I accordingly allow the plaintiff $200 per year in respect of these visits. 838Applying the multiplier of 666.4, the total amount is $2,665.80. Allowing 15% in respect of contingencies, the plaintiff should be awarded a sum of $2,265.93.

Medication 839The plaintiff is required to take Mobic, Brufen and Fish Oil. I accept the plaintiff's calculation of this medication in its Damages Schedule as being $318 per annum. 840Applying the multiplier of 666.4, the total amount is $4,075.00. Allowing 15% for contingencies, the plaintiff should be awarded a sum of $3,463.75.

Fox v Wood Component 841This amount is to be assessed as at the date of judgment. 842I direct the parties to provide to my associate within 7 days the final amount in respect of Fox v Wood (1981) 148 CLR 438.

Total Damages 843I propose to award damages to the plaintiff as follows, subject to any matters raised by the parties, including any deductions or adjustments that need to be made. I note that the total amount below does not include any amount for past out of pocket expenses or Fox v Wood: Head of damage Amount Non-economic loss (s 151G) $192,830 (55% of the maximum) Past economic loss $402,605.50 Past loss of superannuation $44,286.61 Future economic loss $297,877.82 Future loss of superannuation $32,766.56 Past personal care $8,528.66 Past domestic care (internal) $14,941.13 Past domestic care (external) $17,063.93 Future domestic care (internal) $42,457.52 Future domestic care (external) $81,205.76 Past out of pocket expenses To be advised Future out of pocket expenses: $9,703.26 Equipment $40,980.13 Physical treatment/review $2,265.93 GP $3,463.75 Medication Fox v Wood component To be advised TOTAL: $1,190,976.56

Orders 844I propose to enter judgment in favour of the plaintiff against the defendant in an amount to be determined on Friday, 13 February 2015 when the proceedings will be re-listed as specified in [845] below. 845I direct that the proceedings be listed at 10.00am on Friday, 13 February 2015. I do so for the purpose of providing the parties with an opportunity to check calculations, deductions and adjustments required by law and otherwise in accordance with this judgment. On that date I will also deal with costs by way of oral submissions.

SCHEDULE OF CROSS-EXAMINATION OF PLAINTIFF 846As noted earlier, the plaintiff was cross-examined for approximately 11 hours and 45 minutes over four days. The following is a Schedule of the plaintiff's cross-examination by topic. 847A considerable portion of the cross-examination focused upon the liability of the defendant and the alleged contributory negligence of the plaintiff - matters that were ultimately abandoned during the course of the trial.

Plaintiff's Credibility 848Mr Campton was first asked questions about completing claim forms and the importance of reading such forms prior to signing them. This was asked in the context of the claim form completed by the plaintiff on 16 July 2010 (T 58). 849The cross-examination on this aspect concerned the answers given by the plaintiff in the claim form regarding not previously suffering from similar related injuries or conditions. 850The plaintiff conceded that he had in fact previously had back strains and sprains (T 60:25). His explanation of his answer as to the absence of prior back pain was that previous injuries were not "similar" to those he said he sustained on 1 July 2010 (T 60:31), that is to say, that they were not sustained in similar circumstances. Mr Joseph then proceeded to ask further questions relating to the plaintiff's understanding of the words "similar" and "condition" and related matters (T 60-62). 851The plaintiff was then asked questions regarding the circumstances of the accident, as described by him in the claim form (T 63-65), specifically, road conditions (T 65) and the pre-shift meeting (T 66, 68). This was followed by questions about what measures he himself could have taken to take care while travelling on the road (T 66-67), including seat location, helmets, etc. 852The plaintiff was cross-examined on whether his head was tilted to the left or right side in the vehicle. It was suggested to him that the reason he said it was tilted to the left during cross-examination was to support his belief that he had a left-sided injury (T 76). He was asked whether he was certain it was left-sided pain and not right-sided (T 77-78). 853He was then cross-examined on the history given to Mr Ravagnani regarding his ankle. Although Mr Ravagnani's report referred to the plaintiff's right ankle, the plaintiff wrote to him correcting him as he said the report should have referred to his left foot. The plaintiff was asked about his contact with Mr Ravagnani following receipt of the 2012 report (T 89-91). Mr Joseph put to the plaintiff that he was telling the truth to Mr Ravagnani when he reported issues with his right foot (T 94). He disagreed. This was again revisited at T 370 and T 397. 854It was put to the plaintiff that he had lied when he told Dr Coolican that he did not have any symptoms in his right ankle (T 96). The plaintiff denied having continuing problems, and responded: "Why would I make a complaint about something that I haven't got?" 855It was further suggested to the plaintiff that he downplayed his back injuries to Dr Millons in 2007 because he was on a work contract and needed to keep working (T 83). Mr Joseph further suggested he was presently downplaying those injuries for the purposes of the present proceedings (T 84). The plaintiff said that both of those suggestions were "wrong". It was subsequently suggested that the plaintiff had changed his foot symptoms for the purposes of the proceedings (T 231). The plaintiff responded that that was "untrue". 856The plaintiff was also asked a number of questions about the genuineness of his attempts to return to work. In the course of this questioning, he was asked about a boat insurance application form he completed in 2012 in which he listed his profession as "retired" (T 100-102). He was repeatedly asked why he would described himself as retired on that form yet tell the Court that he did not considered himself retired (T 102; 104). It was suggested to the plaintiff that he had described himself as retired because he was not interested in looking for work. The plaintiff maintained that he was unemployable, not retired. 857When addressing the issue of road conditions, it was put to the plaintiff that he gave conflicting evidence in court to that set out in his Evidentiary Statement, specifically on matters relating to road conditions in the mine and boggy-ness at the time of the accident (T 140). Mr Joseph said the plaintiff did this to create a case based on a dry and rough roadway. 858Mr Joseph then suggested to the plaintiff that his account of the conversation with Fletcher in his evidentiary statement was unreliable "as most of your evidence is" (T 141). He then suggested that the plaintiff remembered certain parts of the accident when preparing that statement to implicate the defendant and make a conversation suited to his case (T 141). This was denied. 859Mr Joseph later asked the plaintiff a series of questions regarding his attendances at Hawks Nest Golf Club for lunch in an apparent attempt to discredit the plaintiff's claims regarding the pain he experienced after seeing Dr Harvey (T 199-200). 860He later suggested that the plaintiff concocted a story about being a graffiti artist in order to cover up a concern Dr Coolican had regarding paint on the plaintiff's legs during an appointment (T 219-223). 861Towards the end of the plaintiff's cross-examination in East Maitland it was put to him that he had provided the court with a number of rehearsed answers, including: that his capacity to function was depended on the pain killers he said he took, that he does everything that he can possibly do, and that he can do certain things only because he does them at physio (T 392). 862In the final question at the East Maitland hearing he was asked whether he was more active and away from home on his own than he had led the court to believe (T 399). The plaintiff responded that he never led the court to believe that at all. 863Other instances of Mr Joseph challenging the plaintiff's credibility are included within the various sections below.

Circumstances of the Accident and Contributory Negligence 864The plaintiff was asked questions in the early part of cross-examination as to his knowledge of whether the roadway was unsealed or contained potholes (T 64) and as to other aspects of the road conditions (T 72-74). 865This was followed by questions regarding the measures the plaintiff could have taken to take care while travelling on the road (T 66-67), including seat location and helmets. 866In terms of his seat location in the vehicle, Mr Joseph repeatedly asked questions regarding the plaintiff's choice to sit over the left rear wheel, and whether this made the jarring more pronounced (T 70), as well as the plaintiff being "crammed in" by virtue of his head being up against the vehicle's canopy (T 70-71; 76). 867Mr Joseph asked questions regarding the "foam cushion" on the seats in the vehicles, and put to the plaintiff that he never made a report regarding the inadequacy of those cushions because he did not consider them to be inadequate, despite his reporting obligations as a mining deputy (T 75). 868In respect of the pre-shift meeting, specific questions were asked of the plaintiff as to whether Mr Phillips advised that the bypass road was to be used, that there had been no maintenance carried out on the road for quite some time, and that it was extremely rough (T 68). 869The plaintiff was also asked whether he understood the nature of the warnings given at the pre-shift meeting (T 74). 870Mr Joseph asked questions relating to the plaintiff's knowledge as to: (1)Whether it was unusual for the vehicles to drive on unsealed roads (T 69). (2)Whether driving more slowly can make the potholes more pronounced (T 69) and the jarring of passengers more pronounced (T 70). (3)Whether, by avoiding one hole, the driver can end up in another hole (T 70). 871Mr Joseph commenced the second day of cross-examination by returning to the circumstances of the accident, including:

• Lighting on the roads in the mine and lighting on mining hats (T 124; 131-132)
• Seating arrangements in the vehicle (T 124-130). 872In respect of seating arrangements, the plaintiff was asked why he sat in the spot that he did given there were other spots available. That is, it was put to him, in effect, that there had been no need for him to sit over the wheel hump (T 125). The plaintiff was also asked why he placed his bag on one of the spare spots that was not over the wheel hump. The plaintiff's response included an explanation that parts of the seat cushioning were wet and it could not be moved because it was one continuous piece of sponge (T 130). 873Mr Joseph then put to the plaintiff that, having been warned about the roughness of the road, it would have been reasonable to move off the wheel hump (T 130). Mr Joseph said he asked these questions because it was part of the plaintiff's case that sitting over the wheel hump exacerbated his injuries (T 131). 874Further questions were then asked regarding the plaintiff's bag and the length of the drift and bypass road. 875The plaintiff proceeded to draw a map of the seating arrangements which became MFI 6. 876With regard to lighting, the plaintiff was asked whether he could see anything from where he was sitting that would indicate the speed of the road, given there was no lightning in the passenger cabin or driver's compartment in the vehicle (T 131-132). Further, whether he was able to see in any detail the road on which the vehicle was travelling. 877Mr Joseph then asked a series of questions regarding the amount of water on the bypass road, which was about 75m long (T 132). 878The plaintiff was asked about the injuries sustained at the time of the accident, about which he made complaints of back pain resulting from jarring. He was also asked when he first sustained leg pain (T 133). 879The plaintiff was again asked about the road conditions at the time of the accident and it was put to him that there was a lot of water on the bypass road. He was asked whether he would describe the road as "boggy" (T 136-140). Mr Joseph explained this was because the plaintiff had previously rejected any suggestion that the driver had to drive in the manner he did in order to avoid being bogged (T 137). Mr Joseph suggested the plaintiff had given conflicting evidence relating to the boggy-ness of the road so as to establish a case based on a dry and rough road (T 140). 880The plaintiff was then asked whether it was his belief that the driver was trying to avoid getting bogged. Once he agreed, Mr Joseph suggested it was not an unreasonable act for the driver to drive in a manner to avoid getting bogged (T 140). When the plaintiff did not agree, Mr Joseph asked a series of questions regarding what the plaintiff thought the driver should have done (T 140-141). 881Mr Joseph proceeded to ask questions about the conversations the plaintiff had at the time of the accident, including with Mr Fletcher (the driver). He suggested that the plaintiff gave an unreliable account (T 141). Mr Joseph asked the plaintiff whether he mentioned to the under manager, Mr Phillips, or Mr Howell or Mr Windybank that the driver failed to drive the vehicle as a four wheel drive (T 142). 882Mr Joseph then asked questions about precisely when the plaintiff began to experience pain, as well as the speed of the vehicle at and prior to this time (T 144-146). 883The plaintiff was asked whether he had made any complaint during the journey that the vehicle was travelling too fast and whether there was anything that would prevent communication between the passengers and the driver, specifically, the mesh barrier and ear muffs/ear plugs (T 146-147). 884He continued to ask the plaintiff when it was that he first complained to the driver and suggested that given the lighting situation it would have been difficult for the plaintiff to identify the vehicle's speed, and given the ear muffs/ear plugs, it would have been difficult to hear anything (T 147). 885Mr Joseph repeatedly asked the plaintiff how he could possibly identify the vehicle's speed or gear (T 148-149). Despite the plaintiff explaining that his experience enabled him to identify the approximate speed, Mr Joseph proceeded to ask him how he could identify the speed without any special training (T 149). 886Mr Joseph then asked the plaintiff whether he had considered himself to be in any danger when travelling down the road. He asked him whether he yelled anything out to the driver (T 149-150). Mr Joseph suggested that given the driver was also a deputy it would be unlikely for him to ignore any complaint made by a fellow deputy (T 150). He then asked a number of questions about the plaintiff's perceptions of the responsibleness of the other persons in the vehicle. 887Mr Joseph enquired of the plaintiff whether he had ever been yelled out from the back of a vehicle on a similar road (T 151-152). In doing so, Mr Joseph went through the plaintiff's evidentiary statement in detail and asked further questions about whether the other passengers also yelled out (T 152-154). 888Mr Joseph proceeded to ask questions regarding the reasonableness of taking the corner on the road at a speed of 15-20 km/h (T 154-156), before revisiting the number of times and locations at which the plaintiff yelled out to the driver to slow down (T 156-159). 889He was then asked additional questions about the state of the main travelling roads compared to bypass road, specifically, whether it was not uncommon for the bypass roads to be in a worse state of repair (T 160). 890He was asked again about the conversation he had with Mr Phillips following the accident and why he had not complained that the vehicle was not being driven in four wheel drive mode (T 160-162). 891At the start of the cross-examination on the third day, Mr Joseph asked further questions as to the circumstances of the drift, travelling and bypass roads (T 257-259). He also asked about the length of the trip and suggested to the plaintiff that the vehicle could not have been travelling at the alleged speeds due to the time the trip took (T 258). 892Mr Joseph once again revisited the circumstances of the accident at the end of cross-examination in the East Maitland hearing, asking the plaintiff why someone did not bang on the driver's compartment when it appeared the driver was not going to change his speed (T 399).

Pre-Accident Injuries and Treatment 893Early in cross-examination the plaintiff conceded that he had previously suffered from back sprains and strains (T 60). The plaintiff later clarified this as being pain and a mild twist of the back (T 80). 894Mr Joseph then asked a number of questions regarding the plaintiff's pre-accident injuries, in particular:

• Back pain and injuries (T 79-85)
• Thigh injuries (T 81-82)
• Ankle injuries (T 88 - ongoing)
• Knee injuries (T 96-97)

2007 Work Incident 895Questions were asked regarding the plaintiff's workplace accident in 2007. Mr Joseph repeatedly suggested that the plaintiff downplayed his back injuries to Dr Millons in 2007 because he was on a work contract and needed to keep working (T 83-85). Mr Joseph also suggested that the plaintiff continued to give a history of right ankle problems following the 2007 accident (T 89-90). Mr Joseph repeatedly suggested he was presently downplaying those injuries for the purposes of the present proceedings (T 84; 92-93). The plaintiff maintained those allegations were wrong. 896Mr Joseph asked multiple questions regarding the plaintiff's right ankle pain and treatment following the 2007 accident (T 91-93; 95-96) and whether he was on selected work duties for a period of time as a result (T 93). During this time the plaintiff was extensively questioned about the history he had given to various practitioners regarding his ankle.

2008 Work Incident 897The plaintiff was asked questions about his 2008 workplace accident when his right ankle gave way and he hyper-loaded on his left knee (T 92-95). The plaintiff was subsequently treated by and operated on by Dr Berton. He was asked whether his left knee had "come good" and whether Dr Berton had recommended a further operation (T 95). 898Mr Joseph later asked the plaintiff a number of questions regarding the workplace injury in 2008 in the context of the medical history given to treating doctors. He was asked about his return to work after this injury and wearing elastic spats both prior to and after the accident (T 232-238). Questions were then asked about whether the spats resulted in a loss of sensation in his left foot. 899Mr Joseph cross-examined the plaintiff as to his medical history in respect of his left leg (T 238-239). It was suggested that he was using the spats to downplay the fact that his pain he complained of in 2009 to Dr Whittaker could have been related to his back from previous accidents (T 239). The plaintiff said that he did not think so. 900Mr Joseph then went through the plaintiff's medication history (T 239-240). It was suggested that the plaintiff had been having left foot problems since 2007. 901The previous issues with the left leg were again addressed at a later stage in the cross-examination, including, in particular, the various histories given to treating practitioners (T 244-251). The plaintiff was asked whether he could recall various reports of numbness or weakness during those times. The plaintiff's medication during this time was again discussed. 902Shortly afterwards the plaintiff's medication was again raised in the context of the plaintiff's bicycle riding. Questions were asked as to whether he took Endone and the side effects it caused (T 268-272). 903The plaintiff was asked why he reported wasting in his right thigh to Dr Bracken in 2011. He was asked whether this was because of the ankle injury. The plaintiff said that it because he had broken his right leg when he was 21 (T 94). 904The cross-examination then moved to the plaintiff's previous knee injuries, specifically, following an accident in April 2000 and whether this had been still causing him problems up to October 2009 (T 96-97).

Diabetes 905A significant amount of time was also taken up in cross-examination on the topic of the plaintiff's diabetes (T 230-231). This commenced on the second day of cross-examination in the context of, or related to, the plaintiff's anticipated retirement age. 906It was again raised later in the context of the plaintiff's medication history (T 240). 907The plaintiff was questioned about left foot drop and whether he was aware that left foot drop can develop from diabetes as well as other types of complications, eg loss of sight (T 241-242).

Pain Symptoms 908The plaintiff was asked a number of questions as to whether he had left or right sided pain following the accident (T 76-78).

Prior Injuries 909The plaintiff was questioned upon the various reports as to injuries which he had given to his treating doctors (T 78), specifically, as to whether the injuries were right-sided or left-sided. 910He was also asked questions about the history given to Dr Reichler (GP) and not telling Dr Reichler about his left leg pain (T 78).

Post-Accident Tasks 911The plaintiff was also asked about the types of tasks he could perform following the accident, and whether he was any better or worse following Ms Hughes' October 2012 attendance (T 108).

Medications 912Various questions were asked regarding the plaintiff's prescribed and non-prescribed medications and whether all these medications had been reimbursed by the insurer (T 114-116). Mr Joseph asked the plaintiff why he did not keep all receipts for non-prescribed medication (T 115). It was put to him that the reason he did not keep those receipts is because he never purchased any non-prescribed medications. Mr Joseph asked about the specific medications the plaintiff had been prescribed and whether they had assisted with his pain (T 116-117). 913The plaintiff was also asked questions about his practices regarding the taking of medication (T 116-117).

Onset of Leg Pain 914On the second day of cross-examination the plaintiff was asked when he first experienced leg pain following the accident (T 134-135). After the plaintiff responded that it occurred after he got out of the vehicle, he was asked why he did not mention this in his claim form (T 135).

Onset of Pain 915The plaintiff was questioned as to what time during the trip he began to experience pain and, additionally, as to the speed of the vehicle at and prior to this time (T 144-146). The plaintiff explained that the first "bump" was hit at the beginning of the bypass road when the vehicle was travelling at 15-20 km/h (T 146).

Attendances on Dr Harvey 916Mr Joseph turned to the plaintiff's attendances with Dr Harvey (T 162-165; 167-179). This commenced with questioning on how he had travelled to his medical appointments and whether he was able to travel by car or train without difficulty. Following the morning tea break Mr Joseph suggested to the plaintiff that the reason he went into such detail about his attendances on Dr Harvey in his statements was for purely "legal" reasons and because he was seeking to discredit Dr Harvey whom he knew was the defendant's doctor (T 167). The plaintiff responded "that is wrong". 917Mr Joseph then proceeded to ask the plaintiff about his complaint in respect of Dr Harvey - that Dr Harvey in fact made his back worse (T 169-170). He was also asked about the history given to Dr Harvey (T 170-174), specifically, an incident in September 2012 where the plaintiff's leg gave way in a coffee shop. Mr Joseph then asked further questions about this incident and the circumstances of the accident (T 173-175).

Physiotherapy After Attendance on Dr Harvey 918The plaintiff was asked about his physiotherapy attendances following his consultation with Dr Harvey and the length of time for which his back remained bad following the consultation (T 175-177). He was asked whether he had told the physiotherapist about his consultation with Dr Harvey (T 177-178). It was suggested that had Dr Harvey made the plaintiff's back worse he would have told the physiotherapists (T 178). It was put to him that the reason he did not tell the physiotherapist was because he was "more concerned with writing a letter of complaint concerning Dr Harvey to discredit him" (T 179). 919Further questions were asked of the plaintiff concerning the consultation with Dr Harvey. The focus was upon what Dr Harvey did during the appointment and whether the plaintiff said anything to Dr Harvey about his actions hurting him (T 190-195). 920The circumstances in which the plaintiff came to write his statement regarding the consultation (Exhibit 4) and the pain subsequently suffered were then discussed in detail (T 195-198). Mr Joseph referred the plaintiff to his prior statements where he had said he was in pain "all the time", in an apparent attempt to discredit his comments regarding the pain he felt after Dr Harvey's appointment (T 198-199). 921Dr Harvey's appointments were again revisited during cross-examination in the Sydney hearing when Mr Joseph asked the plaintiff whether Dr Harvey had examined his left hand (T 654-655). He was then asked about the statement he wrote regarding his attendances on Dr Harvey and whether it was correct, specifically, whether he had made an error regarding whether Dr Harvey had examined his right or left hand. This was discussed for some time in Sydney (T 654-658).

The Left Foot 922Mr Joseph later asked the plaintiff a series of questions regarding post-accident numbness in his left foot, having previously suggested to the plaintiff that he had left leg problems since 2007 (T 242-243). The extent of this numbness was addressed (T 243-244). 923This topic was again explored at the start of the third day. The plaintiff was asked how he had described the symptoms in his left foot following the accident, specifically, whether he described it as "burning" or numbness (T 259-262). He was then asked if the pain in his foot improved following his various operations (T 262-263). 924Mr Joseph questioned the plaintiff on the medical histories given by him as to any numbness in his right hand or foot, in particular, whether it had been reported to Dr Harvey following the second operation (T 263-264). It was put to the plaintiff that the pains in both thighs after the operation was because of the position during the operation (T 264-265).

The Hawks Nest Golf Club Visit 925As noted at [859], the plaintiff was cross-examined about a visit to Hawks Nest Golf Club. The plaintiff was once again cross-examined on the trip to Hawks Nest Golf Club, which the plaintiff said he made to have lunch with his wife.

Ankle Jerks 926The plaintiff was then cross-examined on the subject of ankle jerks and whether doctors had tested his ankle. It was suggested that he had been less than truthful and had consciously held his ankle when asked to relax during these tests (T 274-275). He denied this.

Attendances on Mr Ravagnani - 2007 Ankle Injury 927Following lunch on the third day Mr Joseph asked the plaintiff a number of questions regarding his attendances on Mark Ravagnani in 2007 following an ankle injury (T 369). He was asked whether he had told Mr Ravagnani about the pain he was experiencing as well as any numbness (T 370). Further questions were asked about whether it was the plaintiff's right or left ankle that had been injured. It was suggested that the plaintiff had correctly said at the time that his right ankle was injured. 928This was again raised at T 397 where it was suggested to the plaintiff that he only attempted to correct Mr Ravagnani's statements regarding the plaintiff's "right" ankle after his solicitor had told him that reports regarding his right ankle would be inconsistent with his case (T 397-398). The plaintiff disagreed (T 398).

Plaintiff's Mobility 929Mr Joseph also asked numerous questions regarding the plaintiff's mobility around his house. 930He was asked whether he could walk up and down the stairs of his house in November 2012, despite telling the pain clinic in January 2011 that he was planning to move house in the near future (T 378-379). He was asked about the various reports he had given to people of his intention to move house. It was put to him that the fact he never bothered to move house even though he told people about moving houses indicated that he lived quite well in that house (T 379). The plaintiff's response was that "my situation has changed now". 931After referring to the surveillance footage of the plaintiff (discussed below) Mr Joseph asked the plaintiff about the movements he demonstrated to Ms Hughes when she attended his home for an evaluation (T 393-394). The photographs taken by Ms Hughes were also shown to the plaintiff. 932He was later asked about his ability to bend down and get items from a supermarket (T 395).

Physiotherapy and Hydrotherapy 933The plaintiff's attendances at physiotherapy and hydrotherapy were also discussed towards the end of the plaintiff's cross-examination (T 392-393).

Surveillance Footage 934Towards the end of the plaintiff's cross-examination during the East Maitland hearing Mr Joseph asked the plaintiff many questions as to his ability to perform certain tasks and in doing so showed the plaintiff photos taken from surveillance footage. This was first addressed in the context of asking the plaintiff about his mobility in and around his house. 935The plaintiff was asked about his ability to walk up and down the stairs in his driveway following the first operation and the difficulties he experienced when doing so (T 381-384). Mr Joseph suggested that the plaintiff was able to walk around the front area of his house in November 2012 without difficulty and without any limp. He was asked whether the surveillance footage would show him limping at all. He was then asked whether his altered gait would be obvious to anyone looking at him (T 384). This same question was also asked at a later stage (T 395). 936He was then asked about his ability to bend down in November 2012 and whether he had had problems bending following the accident (T 385-388). He was also asked about what he had told treating practitioners about his ability to bend, specifically, Ms Hughes. The plaintiff was then shown photos from the surveillance footage of him apparently bending (T 388). 937The plaintiff was then questioned about having attended a bank that has both stairs and a ramp (T 389-390). He was shown a photograph from the surveillance footage in which he is apparently walking down stairs without using a handrail. 938The plaintiff was also asked about his ability to do an hour's shopping either in 2012 or presently (T 390-391). 939He was then asked whether he had ever placed items in a charity collection bin and whether it would cause him difficulty to lift items and place them in the bin (T 391). 940The plaintiff was not given the opportunity in evidence of seeing the surveillance DVD from which the still photos were taken.

Attempts to Return to Work 941The plaintiff was cross-examined on work he performed following the accident. The plaintiff said that he was on selected underground duties for two weeks (T 77). Mr Joseph suggested this made it easier for him to "pick and choose" what he did. 942This was later canvassed in detail from T 97-105, in particular:

• Whether the plaintiff looked for work from the date of the accident to June 2012 (T 97).
• When the plaintiff asked his employer three months after the accident if he could return to work (T 98).
• Whether the plaintiff knew there were no permanent light duties jobs available when he asked if he could return to work (T 98).
• Why the plaintiff then waited until 2012 to again look for work (T 99).
• Why the plaintiff did not seek work in other industries (T 100).
• The plaintiff's attendances on Dr Whittaker in 2012 seeking a certificate to claim total and permanent disability (T 102).
• Whether the plaintiff considered himself totally and permanently disabled (T 102-103).
• Whether the plaintiff considered himself retired (T 100-102; 104-105).
• Whether the plaintiff had described himself as retired because he was no longer interested in work (T 105). 943Mr Joseph suggested a number of times to the plaintiff that he knew he would not be able to return to work permanently on light duties, and that his only reason for returning to his employer asking for such work was so that he could meet workers' compensation entitlements as a result of being ready, willing and able to do suitable duties (T 99). The plaintiff responded that his attempts to return to work were "genuine efforts" and said that "if they had have gave me a job there I would have worked it". 944Shortly afterwards Mr Joseph asked whether Dr Ferch considered the plaintiff fit to return to work in May 2013, and whether following attendance upon Dr Ferch he had looked for any work of a selected kind (T 109). 945The topic was again discussed on the third day. The plaintiff was questioned on the number of occasions on which he had looked for work and why he had done this in mid-2012 (T 275-278). He was asked why he had not mentioned various applications in his 2012 evidentiary statement. It was suggested that the reason why he had not done so was because he was not actually looking for work. The plaintiff denied this and said that "I'd like to suggest to you that I am [looking for work]" (T 278). 946The plaintiff was then asked why he had not been looking for work on the internet earlier. The plaintiff said this was because of the cancer he had on his head (T 278-281). 947He was then asked whether his cancer "scare" had led to thoughts about retirement. Mr Joseph proceeded to ask questions as to why the plaintiff had accepted redundancy and did not persist with looking for a light duties job (T 281-282). 948He was then asked about his capabilities with regard to internet searching and whether he could search for jobs (T 283-285). The questioning was possibly suggesting that the plaintiff began searching for work only when it was time to prepare his first statement in the proceedings (T 285-287). 949The plaintiff was cross-examined on WorkCover certificates he had received. He was asked why he had not started looking for work as soon as he had received a certificate in September 2011 that said he could look for suitable work (T 288-289). 950It was suggested to him that he never wanted a job after the accident but that he only wanted to give the appearance of looking for a job (T 290). The plaintiff responded that that was "not true". His various job applications were then discussed (T 291). 951A short while later the topic was revisited when Mr Joseph asked the plaintiff about an application he made to Whitworths Marine, in particular, why he had applied for the job in circumstances where the advertisement did not refer to the number of hours required, and when he had never asked why he had been unsuccessful (T 296-303). The plaintiff said it was because he was unable to do the necessary lifting. 952The plaintiff was questioned about his job application to Repco and the various purchases he had made at Repco prior to this (T 311-315). He was asked about his account at Repco and the fact he had continued to make purchases following his accident. 953This topic was revisited shortly after and the plaintiff was asked about the circumstances in which he had applied (T 322-324). 954He was then asked about his job application to Bias Boating and the circumstances in which he had applied (T 324-326). He said that he made a general enquiry for work in the nature of light work or counter work, and that they said that they had no vacancies in respect of that type of work (T 325). 955Mr Joseph then asked the plaintiff about other various job searches he had conducted (T 326-327).

Golf 956Mr Joseph questioned the plaintiff on his recreational activities in the context of his 2007 workplace injury and the history given to Dr Millons (T 85-89). 957Mr Joseph asked why the plaintiff gave up playing competitive golf. The plaintiff said this had been due to work commitments (T 85-87). 958Mr Joseph then repeatedly asked whether the plaintiff had continued to play non-competitive golf prior to and following the 2007 accident. The plaintiff said he continued to play non-competitive golf up to the 2010 accident. 959He repeatedly asked the plaintiff if he told Dr Millons that he played golf and whether he had told him in 2008 that he had to give up playing golf because of issues with his right ankle (T 87; 93). Mr Joseph repeatedly put to the plaintiff that he had to give up golf for up to 18 months following the 2007 accident (T 89). He disagreed. 960The plaintiff also referred to playing golf when asked if he was experiencing knee problems up to October 2009 (T 97). 961Following cross-examination in relation to his abovementioned consultation with Dr Harvey, Mr Joseph asked the plaintiff whether there were activities he had to give up following the accident, even with pain relief - specifically, golfing (T 199). Mr Joseph then asked the plaintiff if he had even been to Hawks Nest Golf Club. This topic had been raised before: see [859] and [925]. A series of questions were put regarding the plaintiff having lunch at the golf club and whether he had played golf whilst at the club (T 199-200). There was no evidence that he had done so. The plaintiff stated that "I have never swung a golf club from the day that I was injured" (T 199). 962Hawks Nest Golf Club was revisited once again (on the third day). The plaintiff was asked how much the lunch at the golf club had cost. It was suggested to the plaintiff that he would not have travelled all the way to the club just for lunch because of his back pain and that he had in fact paid to play golf (T 273-274). The plaintiff rejected the proposition.

Shopping 963In the context of questioning the plaintiff regarding his consultation with Dr Harvey the plaintiff was asked if he had attended Bunnings prior to attending the physiotherapist the day after seeing Dr Harvey (T 179). Mr Joseph asked a series of questions regarding purchases made on the plaintiff's credit card that day and whether or not he lends his credit cards to his sons (T 180). He was also asked whether his wife attends Bunnings (T 184). He said that she "buys quite a lot of stuff at Bunnings". 964Mr Joseph then cross-examined the plaintiff in some detail about his shopping history at Bunnings and the sorts of items he has purchased (T 184) and whether or not his wife accompanied him on these occasions (T 185). His response was that his wife would have been with him at Bunnings "because we do everything together". 965The plaintiff was asked about what members of his family were doing on the day following the physiotherapy appointment (T 185). 966After lunch on the second day Mr Joseph commenced a series of questions about the plaintiff's credit cards, in particular, whether or not they had PINs and the circumstances in which he would loan his cards to his family members (T 204-207). He said that on occasions he lends his credit card to his two sons to either purchase stuff on his behalf or their own behalf (T 204). He said that his wife had her own credit card, but that his and her cards were linked to the same account (T 205). 967It was suggested to the plaintiff that he had regularly attended Bunnings from at least 2012 to the present time (T 209). The plaintiff responded that he had been only a couple of times. Mr Joseph then went through the plaintiff's credit card entries for Bunnings and the various reasons for which his son would have used his credit card at Bunnings (T 209-212). The plaintiff also asked about the various things he had purchased and the reasons for those purchases (T 212). 968The plaintiff's credit cards were then discussed generally (T 214-215). 969The plaintiff was later asked about his shopping at Whitworth Marine (T 291-294), Repco (T 311-315) and at various tackle stores for fishing. 970He was then asked about shopping he had done at places called Rod Gear, Bias Boating and Kangaroo Tent City (T 318-320). Mr Joseph asked whether these purchases were consistent with his pre-accident hobbies. It was suggested it was misleading for the plaintiff to have said in his statements that he had had to give up fishing and golf after the accident (T 320). The plaintiff agreed that he had "done a small amount of fishing". There was no evidence in the proceedings to suggest that he had played golf after the subject accident. 971The plaintiff was later asked about his purchases at ACME Fibreglass and why he was purchasing fibreglass items on his credit card for his brother (T 327-334). It was suggested that the purchases were in fact for his personal use (T 331). This was denied. 972He was then asked about his purchases at Boating, Camping & Fishing and the plaintiff's account at that store (T 334-338). He was asked about the items he had purchased and the reasons for purchasing them. He said that he buys presents for his sons from that store because his sons and their girlfriends like to go fishing (T 336). 973It was also suggested that the plaintiff had previously hired trailers (T 395-396). He was also asked about repairs undertaken on his trailer and the equipment he purchased to do this (T 396).

Boats 974After discussing Bunnings Mr Joseph asked the plaintiff if he had bought a boat less than 2 weeks after seeing Dr Harvey (T 212). After the plaintiff said he had purchased a boat for his son to use, Mr Joseph asked a series of questions regarding the boat and why the plaintiff would have purchased it (T 212-214). 975On the third day the plaintiff was asked about a job application at Whitworths Marine. Mr Joseph asked questions of the plaintiff as to whether he had attended the store previously and the types of items he had purchased (T 291-294). He was also asked about the number of boats he owned at this time and whether he had a boat trailer registered in his name (T 292-293). 976Mr Joseph then asked about the time the plaintiff's son had to be rescued from a boat by the coast guard which then led to the plaintiff buying the new boat (T 295-296). He said that "I can't work on things so it was best to buy something that was new and reliable". 977When discussing the plaintiff's job application and purchases at Repco he was asked about outboard motor repairs he had previously done and whether they had caused any difficulty (T 315). 978The plaintiff was asked about his boating licence and whether it had been renewed (T 340-342). It was suggested that he would not have renewed the licence if he genuinely believed he would not be able to be in his boat again. He was then asked about all the occasions he had been on a boat following the accident, specifically, on the new boat that he had purchased. He was asked about whether he drove the boats and how long he had been in the boats for each time (T 342-344). He said that he had been on the boat no more than three times since it was purchased and for no longer than one hour on each occasion. He said that each time he was with other people and was not driving the boat.

Fishing 979After discussing the plaintiff's repair work on boats he was asked whether he had told the pain management clinic that he had had difficulties fishing (T 316). He was then asked about the sort of fishing he had done and the various tackle purchases he had made since the accident (T 316-318; 320-322). He said that in recent years his sons had purchased tackle on his credit card and that if he had purchased any tackle it would have been as a present. He said that he already has his own tackle "from many years ago" and that he therefore would not have been purchasing tackle for himself. 980The plaintiff was then asked about his fishing licence (T 340). He said he had previously had a fishing licence, but that he had not had one for at least 18 months.

Bicycle riding 981Following a number of questions about the plaintiff's leg pains subsequent to his operations, Mr Joseph asked him whether he had been riding bicycles and the circumstances in which he had been riding, such as distance and time (T 265-267). He was asked whether medication helped with the pain he experienced after riding. The plaintiff said that he takes one Mobic tablet every morning and that that eases the pain.

Travel 982After discussing the plaintiff's various job applications Mr Joseph began to ask questions about the plaintiff's travels in 2011 and 2012 (T 303-307). 983The plaintiff said that he owns a time share property in Bali. Under that scheme he is entitled to stay at the property for seven days each year. He also said that he and his wife had travelled to Merimbula, Batemans Bay and Moruya because his brother-in-law lives in that area. In addition, he and his wife went to Cairns and Port Douglas for up to 10 days in May 2012. 984He was asked about his reasons for travelling on each occasion. It was suggested that those trips were consistent with someone who was retired (T 307-308). He disagreed.

Cars 985The plaintiff was asked about the cars he has owned after lunch on the third day (T 367-368). Mr Joseph took the plaintiff through RTA car ownership records. 986Towards the end of the plaintiff's cross-examination he was shown a photograph of a Nissan car which became MFI 18 (T 394).

Domestic Tasks and Assistance 987The nature of the care provided by Mrs Campton was first raised in the context of whether Mr Campton considered himself or his wife to be pensioners (T 105-106). This developed into a series of questions as to the amount of time Mrs Campton spends on caring for the plaintiff and the types of care provided (T 106-108). Mr Joseph particularly focused on whether these were tasks also performed by Mrs Campton prior to the accident (T 107). 988The plaintiff was also asked a series of questions regarding Ms Hughes' attendance at his home in 2012 (T 108-113). He was shown various photographs taken by Ms Hughes and asked whether he was or was not able to now do those activities. When the plaintiff occasionally responded with words to the effect "I can do that but it causes me pain", Mr Joseph repeatedly asked why the plaintiff would perform tasks that caused him pain (eg T 112). 989On the second day of cross-examination Mr Joseph asked a series of questions about the household assistance provided by Mrs Campton (T 217-219). Mr Joseph asked the plaintiff whether he had done any painting since the accident. Mr Joseph suggested that the plaintiff concocted a story about being a graffiti artist in order to cover up a concern Dr Coolican had regarding paint on the plaintiff's legs (T 219-223). The plaintiff said "I graffiti on the wall regularly" (T 222). 990On the third day the plaintiff was asked about the claim he had made to move house after the first operation and the reasons for making this claim (T 371-374). He was asked about his difficulty in going up and down stairs and his need for handrails. It was suggested that he would not have parked his car at the bottom of the house if he had difficulty walking up the stairs to his house (T 373). He was then shown some photos from the surveillance footage. 991Mr Joseph later asked further questions about the plaintiff's car being parked at the bottom of the house in August 2013 (T 379). 992It was put to the plaintiff regarding his ability to walk up and down the stairs of his house in November 2012 that the fact he never bothered to move house, even though he told people about moving houses, meant that he lived quite well in that house (T 379). The plaintiff responded that his situation had changed since the last operation. 993Mr Joseph also asked questions about renovations being done on the house in July 2012, including a Queensland room at the back of the house (T 379-380). It was suggested he would not have undertaken renovations if he had been intending to move house.

Family Circumstances 994When first asking questions about Bunnings and the plaintiff's credit card being used by his sons, Mr Joseph asked a number of questions regarding the plaintiff's sons' occupations, study, and living arrangements (T 180-184). The plaintiff has two sons. He said his eldest son is employed and that his youngest son is presently unemployed and living at the family home. He said that one of his sons has been completing TAFE courses online for the past four years. 995Mrs Campton's employment situation was first discussed briefly during the questioning about Bunnings (T 185-186). 996This was again raised a little while later by Mr Joseph in reference to the sentence in the plaintiff's statement: "When I'm in a position to afford to do so I'd like to pay someone to assist my wife" (T 217). Mr Joseph proceeded to ask a series of questions about Mrs Campton's employment situation and the various activities Mrs Campton does around the house or for which she receives assistance, eg lawn mowing (T 217-219). 997Following additional questions regarding the circumstances in which the plaintiff would lend his credit card to family members, Mr Joseph again proceeded to ask the plaintiff about his sons' employment circumstances, including why one of his sons had remained unemployed (T 208-209).

Financial Circumstances 998On the second day of cross-examination the plaintiff was asked a number of questions regarding his salary at the time of and prior to the accident (T 222-226). Mr Joseph went through the plaintiff's various deposits into his superannuation fund (T 225-229). This led into a series of questions regarding the plaintiff's anticipated retirement age (T 229-230). He said that prior to the accident he had not considered the age at which he would retire. When it was suggested to him that his retirement age could have been 65, he responded "probably", but that he was not prepared to specify a date on which he would have finished working (T 229).

MS RAVAGNANI'S SUMMARY OF FUTURE NEEDS COSTINGS 999As noted at [824], I attach as a schedule to this judgment Ms Ravagnani's "Summary of Future Needs Costings", as contained at [5.12] on pages 22-23 of her report dated 10 October 2011.

Schedule (PDF) 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: 22 December 2014