Clancy v The Nominal Defendant

Clancy v The Nominal Defendant - [2023] NSWDC 186 - NSWDC 2022 case summary — Zoe

[3]

Defendant's application to lead further evidence in chief (UCPR 31.28) and by way of cross-examination (UCPR 31.30)

On the first day of the hearing, the defendant foreshadowed an application to call Assoc Prof Peter Haertsch, an expert hand surgeon and the author of a report by then already in evidence in these proceedings. It was anticipated that Assoc Prof Haertsch would give further evidence in relation to the effect of possible further surgery on the plaintiff's left hand. In his report, Assoc Prof Haertsch states, under the rubric "(b) work ability - range of possible duties whether full time or part time", "His [the plaintiff's] work ability will only improve with surgery". No reasoning is provided, although it may be inferred that the surgery Assoc Prof Haertsch was contemplating was referred to in answer to an earlier question as being "either a replacement of his left trapezium or a fusion of the carpometacarpal joint". The plaintiff objected and, at my direction, the defendant provided to the plaintiff an outline of the evidence it expected Assoc Prof Haertsch to give.
Counsel for the defendant submitted that the substance of the additional evidence proposed to be led from Assoc Prof Haertsch was contained in his report. He indicated that the proposed additional evidence went to the contention: [T]hat his work ability range will only improve with surgery. And that is what I was going to ask him to expand on and that is with respect not seeking new evidence. I am asking him to assist the Court by explaining to your Honour what the basis of that statement is. Now, I am going - so that was the reason I was going to call the professor and ask him about that. And Mr Hooke will have the opportunity to cross‑examine him on that and, yeah, I would of course not object to a situation where if Mr Hooke wanted to arrange for their doctor to be or a, if you like, hot tub call, for the purpose of that examination, that would not be a problem for us either. It just - in order to assist the Court, to expose the important matters in the case, for your Honour's determination. So your Honour would then have a basis for - and of course, I would, if I need to seek leave to, your Honour, to ask a question about that - in the case of a lay witness, that might be different but in the case of an expert, the courts routinely allow this sort of question to allow the Court to understand the basis of the doctor's statement.
On receiving the outline of Assoc Prof Haertsch's expected oral evidence, the plaintiff disputed that the substance of the evidence was contained in the report. He maintained his objection on the basis that he would be prejudiced in his conduct of the proceedings in two key respects. First, the plaintiff contended that he was not able to deal with the new material on the run, the plaintiff not having investigated the issues now brought into play by Assoc Prof Haertsch's proposed additional evidence. Although the outline was not provided to the Court, Senior Counsel for the plaintiff indicated that it included references to literature concerning a cohort of patients in China, not previously referred to in these proceedings. Counsel for the defendant added that he proposed to ask Assoc Prof Haertsch: What his opinion is, having regard to the matters that have been raised in the proceedings to date and, indeed, the information he had before and in particular, his opinion that surgery will improve the plaintiff's outcome and his work capacity
Further, counsel for the defendant indicated he proposed to ask Assoc Prof Haertsch about the plaintiff's Bennett's fracture and the alleged dislocation of the plaintiff's thumb in an earlier incident.
Secondly, according to Senior Counsel for the plaintiff, if the plaintiff were required to respond to the foreshadowed additional evidence, the retainer of a new expert would be necessary, as the plaintiff's existing expert, Dr Mark Hile, could not speak to those issues. Even if such an expert could be found, Senior Counsel continued, there would necessarily be an adjournment of the proceedings part heard, and a considerable delay in the determination of the plaintiff's claim.
On the second day of the hearing, the defendant added an additional basis to its application. Somewhat contradictorily, it now characterised the proposal to call Assoc Prof Haertsch as the exercise of the defendant's right to cross-examine the plaintiff's expert, rather than seeking further evidence in chief from its own.
The basis for this submission lay in the procedural history of the proceedings. The defendant first served Assoc Prof Haertsch's report in related Personal Injury Commission (PIC) proceedings. The plaintiff served the report back on the defendant in those proceedings. The plaintiff did not serve Assoc Prof Haertsch's report back on the defendant in these proceedings, but included the report in his tender bundle and the report was admitted into evidence in the plaintiff's case without objection. The same report was in the defendant's proposed tender bundle and was ultimately included in the defendant's evidence as well.
The defendant contended that, since the report was tendered in the plaintiff's case, but had not been served back on it in these proceedings, the defendant was deprived of the ability, under r 31.30 of the Uniform Civil Procedure Rules 2005 (UCPR), to give the 28 days' notice required that Assoc Prof Haertsch was required for cross-examination. Accordingly, when the plaintiff included the report in his proposed tender bundle and relied on it without having served it back within the period required by r 31.28(1)(c) UCPR, this constituted a basis for leave under r 31.30(3) to cross-examine Assoc Prof Haertsch notwithstanding the absence of notice.
The plaintiff responded that he would suffer irremediable prejudice if cross-examination by the defendant of Assoc Prof Haertsch were allowed on the issues identified by the defendant. The plaintiff contended that he had made the forensic decision to tender the report on the basis of the position of the parties at the commencement of the hearing. Senior Counsel stated that, had the plaintiff been aware that the defendant would seek to adduce additional evidence by way of cross-examination of Assoc Prof Haertsch, he would not have tendered the report. If leave to cross-examine were to be granted, he would seek to withdraw the tender.
Part 31 r 28 UCPR provides: 31.28 Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (1) Each party must serve experts' reports and hospital reports on each other active party - (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties - (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied - (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). [Emphasis added]
Part 31 r 30 provides: 31.30 Admissibility of expert's report in District Court and Local Court (cf DCR Part 28, rule 9; LCR Part 23, rule 2) (1) This rule applies to proceedings in the District Court or the Local Court. (2) If an expert's report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible - (a) as evidence of the expert's opinion, and (b) if the expert's direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact, without further evidence, oral or otherwise. (3) Unless the court orders otherwise - (a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert's report has been prepared to procure that attendance, and (b) the party requiring the expert's attendance must notify the expert at least 28 days before the date on which attendance is required. (4) Except for the purpose of determining any liability for conduct money or witness expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party. (5) A party who requires the attendance of a person as referred to in subrule (2) - (a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and (b) must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person's reasonable expenses (including any standby fees) in complying with the requirement. (6) If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it. (7) The party using an expert's report may re-examine an expert who attends for cross-examination under a requirement under subrule (2). (8) This rule does not apply to proceedings on a trial with a jury. [Emphasis added]
I indicated on the second day of the hearing that I would not permit either examination or cross-examination of Assoc Prof Haertsch by the defendant and that I would provide my reasons in this judgment. Those reasons are set out in the following paragraphs.
The defendant did not establish that the substance of the additional material sought to be led from Assoc Prof Haertsch was contained in his existing report.
With respect to the application to the extent that it was put on the basis that the defendant would call Assoc Prof Haertsch in its own case, relevantly leave is not to be granted under r 31.28(3)(c) unless there are exceptional circumstances: r 31.28(4)(a).
What constitutes an exceptional circumstance for the purpose of r 31.28(4)(a) depends on a careful consideration of the facts of the individual case: Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 at 186. The matter relied on must be assessed against the particular statutory criterion and with a proper understanding of its rationale, in this case, the overarching purpose in ss 56 to 58 of Civil Procedure Act 2005. The fundamental consideration in the exercise of the discretion to grant leave is the just determination of the proceedings: ASIC v Rich [2005] NSWSC 706 at [56]-[58]. There must be more than circumstances that are regularly, routinely or normally encountered, although they need not be unique, or even very rare: R v Kelly (Attorney-General's Reference No 53 of 1998) [2000] 1 QB 198 at 208. A matter may be "exceptional" because of the relative infrequency of its occurrence and/or by reference to its qualitative significance. It may be "exceptional" either due to a single exceptional matter or a combination of factors which, taken individually, may be either exceptional or ordinary: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
In my view, the circumstances of this matter are not exceptional and do not meet the threshold required for the granting of leave. Assoc Prof Haertsch was an expert initially nominated by the defendant. His report had been proposed to be relied upon by both parties and a copy was, in fact, tendered by each of them. On the information available to the Court, the nature of the evidence that the defendant sought to led from Assoc Prof Haertsch appeared to be an extension of the evidence he had given already and ventured into new areas not previously in issue between the parties. The fact that the plaintiff included a copy of Assoc Prof Haertsch's report in his tender bundle, as he had served it for the purpose of the PIC proceedings, did not make the circumstances of this case exceptional.
It was not contended, and, on the basis of the limited information with which I was provided as to the proposed additional evidence, I would not have accepted in any event, that the proposed additional evidence fell within r 31.28(4)(b).
The defendant's alternative submission relied on the power of the Court under r 31.30(3) to excuse a party from the requirement that, at least 28 days before he, she or they is required for cross-examination, it must notify an expert as well as all other parties of that requirement. The relevant test under r 31.30(3) is less stringent than under r 31.28.
Essentially the defendant seeks that I dispense with the requirement of r 31.30(3)(b) and (5). Sub-rule (3)(b) is subject to the chapeau that the Court may "[order] otherwise", thereby excusing or abridging time for notification that the expert's attendance is required. I read sub-rule (5)(a) as subject to the same power of the Court to order otherwise.
Where an application is made for the Court to require the attendance of an expert for cross-examination, some explanation for the failure to give notice and the relevance of the proposed cross-examination ought be given: Forbes Shire Council v Jones [1999] NSWCA 419 at [34]. The considerations as to whether to "otherwise order" are similar to those in permitting a party to rely upon a report not served within time, however, exceptional circumstances need not be demonstrated.
In my view, the circumstances are not sufficient to permit the defendant to cross-examine Assoc Prof Haertsch without having given the plaintiff notice of its intention to do so prior to the admission of Assoc Prof Haertsch's report into evidence. I have reached this view having taken the following matters into account: 1. There appears to be no reason, in principle, why a party cannot cross-examine an expert on whose report it had itself proposed to rely, on the basis that another party relies on the same report. 2. In these circumstances, the operation of r 31.30(5)(a) would be significant. Sub-rule 30(5)(a) gives the non-notifying parties forewarning of the proposed cross-examination. It provides an opportunity to revisit the evidence and, amongst other things, to revisit the question of whether to rely on the expert's report at all. 3. In the present case, Senior Counsel for the plaintiff indicated that if leave were granted, he would seek to withdraw the tender. This was a powerful indication that, had the plaintiff been notified of the defendant's proposal to cross-examine Assoc Prof Haertsch at any time prior to the admission into evidence of his report, he would not have tendered it. This was all the more likely in circumstances where the defendant had also included the report in its own draft tender bundle. 4. The late notice by the defendant of its stated intention to cross-examine Assoc Prof Haertsch deprived the plaintiff of the opportunity to make forensic decisions prior to the hearing as to his reliance, as part of his case in chief, on a report on which the defendant had also indicated it proposed to rely. In the circumstance where Senior Counsel informed the Court as to the course he may have taken, I accept that allowing cross-examination in the present circumstances without notice under subr 30(5)(a) would be prejudicial to the plaintiff. Such prejudice would likely have been unable to be cured by an adjournment. 5. Further, I note that the position taken by the defendant on the first day of the trial made clear that it was approaching Assoc Prof Haertsch as its own witness. It sought leave to adduce further evidence in chief, relying on r 30.28. 6. The defendant did not raise with the Court, nor it seems the plaintiff, the prospect of cross-examining Assoc Prof Haertsch until his report had already been admitted into evidence. In leaving such notice until such a late stage, the defendant deprived the plaintiff of the opportunity to reassess at trial whether to rely on Assoc Prof Haertsch's report at all. Senior Counsel for the plaintiff said this caused the plaintiff prejudice because he would not have relied on the report in those circumstances and, if I granted leave to cross-examine, he would have sought to withdraw the report from the plaintiff's tender.
While in the circumstances it may well have been possible to abridge the 28-day period required under r 31.30(5)(a), the defendant's delay in making any application until after the report had been accepted into evidence, and indeed until after it had brought an application on the basis of r 31.28, was not adequately explained.
I accepted the plaintiff's submissions as to the prejudice he would suffer. I further found that acceding to the late application to examine or cross-examine Assoc Prof Haertsch would be contrary to the overarching principle that the disposal of proceedings be just, quick and cheap and accept that it would produce unreasonable delay in the disposition of these proceedings. I declined to exercise my discretion, therefore, to allow Assoc Prof Haertsch to be called to give oral evidence on either basis.

[6]

Employment and business

The plaintiff gave evidence as to his employment and business history, and adopted a chronology that has been admitted into evidence. That evidence was largely uncontroversial.
At the time of the accident, the plaintiff was 39 years old, having been born in Ipswich, Queensland in November 1978, and raised in Wagga Wagga, New South Wales. From 1998 to 2003 he was employed at Nicholson Hour Glass Jewellers in Wagga Wagga, initially as an apprentice and later as a qualified tradesperson. In 2000 he obtained a Certificate IV in Jewellery Manufacture and Repair from TAFE NSW Ultimo. From 2003 to 2005 he was self-employed as a jeweller in Wagga Wagga doing contract work for other jewellers in the region, including repairs and custom orders. The work included travel between various country towns visiting jewellery stores, collecting and delivering work throughout the Riverina.
In about 2004, drought adversely affected the rural economy and this impacted the plaintiff's business as well. In 2005, he moved to Sydney and took up employment with Cerrone Jewellers. After a short trial, he was appointed Head of Jewellery Design and Hand Manufacture at Cerrone's Sydney operation on an initial net salary of $700 per week. In that position, he was responsible for designing and producing pieces of great intricacy, which required a high degree of creative and physical ability, fine motor skills and a delicate sense of touch.
The work included pieces with hidden hinges or made from a continuous piece of wire with no apparent start or finish. The plaintiff had considerable creative control over the pieces he produced. Each would start with a design brief and then it was for the plaintiff to design the piece within the parameters of the brief and budget. The budget could be large, pieces were described in evidence as valued at up to $2.3 million in 2008. Once the design had been signed off, manufacture was also the plaintiff's responsibility, although gemstones were usually set by a specialist. Gemstone setting is a highly specialised task as tolerances for the setting of gemstones were extremely precise, up to 0.01mm. Gemstones handled by the plaintiff could be as small as 0.6mm in diameter and needed to be treated carefully as they were delicate and easily damaged.
The plaintiff gave evidence that a highly developed sense of touch, including in the pad of the thumb of his left hand, was very important in the performance of his work as a jeweller, both in holding and manipulating very small objects of very high value and in guiding and using equipment.
The work produced by the plaintiff during this period included a necklace for international media star Beyonce, an engagement ring for the then fiancée of local radio personality Kyle Sandilands and a cross, chalice and communion plate gifted to the Catholic Church and used by Pope Benedict XVI at World Youth Day in 2008. His work was featured in seasonal catalogues published by Cerrone and bridal magazines. When describing the pieces he had created, the plaintiff spoke with warmth and pride. I accept that he was already developing a considerable reputation in his own right by virtue of that work. At the time of his departure from Cerrone's in 2008, he was earning approximately $2,000 net per week, being $1,000 in base salary and $1,000 in overtime.
In 2008, the plaintiff took up employment with another jeweller, the Jewellery Club in Brookvale, where he became Head of Jewellery Design and Hand Manufacture. In that role, the plaintiff was responsible for all the design and custom work for the Jewellery Club as well as the manufacture of high end pieces, a few minor repairs, remodelling existing jewellery and managing another jeweller and their workload. There was less of the high end work available at the Jewellery Club than had been the case at Cerrone's. At that time, he earned $3,000 per week gross. This equated to approximately $2,000 to $2,300 net per week. While at the Jewellery Club, the plaintiff also undertook his own work out of hours.
In 2010, the plaintiff left the Jewellery Club to establish a jewellery business on his own account. He invested approximately $180,000 for equipment, and eventually established a workshop in King Street, Sydney. The plaintiff aimed to focus on high end and medium to high end bespoke jewellery for both wholesale and retail customers. The plaintiff hoped to concentrate on the higher margin retail work than wholesale, however, his wholesale work comprised approximately 30% of his business.
The plaintiff commenced his business as a sole trader but adopted a corporate structure in March 2013. Troy Clancy Jewellery Pty Ltd was incorporated as his operating company and TJ Clancy Holdings Pty Ltd was incorporated as a holding company and trustee, owning the entire issued share capital of the operating company. The plaintiff is the sole director of both companies. He was at all times the only employee of the operating company. The plaintiff controlled both companies and the distribution of income from them.
At least some of the work of the plaintiff has been the design and manufacture of high end pieces of great value and intricacy, photographs of some of which were in evidence. For example, the plaintiff set over a thousand diamonds, equalling 17 carats, into the bezel and bracelet of a Rolex watch. The diamonds were each 0.80mm in diameter and the plaintiff carved, by hand, the setting into which each diamond was placed. That piece demonstrated the degree of precision required of the work the plaintiff was performing during this period.
Over the period 2010 to at least 2015, the plaintiff worked long hours, often 50, 60 or even 65 hours per week, typically 12 hours per day on weekdays and half to two-thirds of the day on a Saturday. He was not challenged on whether he had enough work to sustain such hours.
The plaintiff describes the position of his business in the months immediately prior to the accident on 26 October 2018 as "starting to build up nicely ready for wedding season", which he explained was spring and autumn. He described the nature of his jewellery business as significantly affected by seasonality: weddings in autumn and spring, Christmas, Valentine's Day and Mother's Day being peak periods. He also described a nexus or pipeline between manufacturing an engagement ring and then being commissioned to manufacture a wedding ring for the same couple some months later. It follows that if he were to miss out on designing and manufacturing the engagement ring, subsequent income from designing and manufacturing the wedding ring would also be lost.
The plaintiff was working in his own business at the date of the accident. In the weeks leading into and through October 2018, he was working 90 to 120 hours per week, occasionally even sleeping in his studio/workshop. There was sufficient work to sustain him in working those hours.

[7]

Pre-accident psychological and medical history

It is common ground that in the years which preceded the accident, the plaintiff was suffering from and being treated for a major depressive disorder. It further appears to be conceded by the defendant in its written submissions that this condition was a consequence of his reaction to his failed marriage and acrimonious divorce where the plaintiff's former wife "took everything" and his reaction to the deaths of his parents in February 2017 and April 2018.
The plaintiff had been married, briefly and unhappily, between 2013 and 2015. The period of married cohabitation was a mere six weeks in 2013. The circumstances of the separation from his wife and divorce were personally painful, financially ruinous and they affected the plaintiff psychologically. He consulted a psychologist for assistance. The divorce and a financial settlement with his former wife was not reached until September 2015. Once those matters had been dealt with, he was able to resume his focus on his career. The period of married cohabitation coincides with the 2013 financial year, the divorce occurred early in the 2016 financial year.
The plaintiff has since remarried and has a young son, born in 2017.
In 2016, however, the health of the plaintiff's mother deteriorated rapidly. The plaintiff had been emotionally close to his parents, who by now lived at Minden, outside of Ipswich, Queensland. As his mother's health deteriorated prior to her death in February 2017, the plaintiff travelled to Queensland most weeks to be with her. He travelled to Queensland on Thursdays, after work, and did not return to Sydney until the following Monday evening or Tuesday morning, leaving at most three days in those weeks to work, and thereby restricting the work hours available to him. He could not work remotely.
His mother's death hit the plaintiff hard and he described his mental state at the time as "going down a deep, dark hole". He sought treatment for depression from a psychologist from about that time and was taking medication to assist.
After his mother's death, the plaintiff's father also fell ill. The plaintiff travelled to Queensland as before, only this time to visit his ailing father. In April 2018, the plaintiff's father died. This loss also hit the plaintiff hard and the dosage of the medication he was taking to treat his depression was increased. He suffered from panic attacks, depression and anxiety. He was seeing a psychologist at the time and in May 2018, the dosage of his Effexor prescription increased fourfold.
The plaintiff held powers of attorney for both of his parents and was executor of his father's estate. His duties in that regard continued until about June 2018. According to the plaintiff, thereafter there was no impediment to him focussing on his career and, with a new wife and baby son born shortly after the death of his mother, he was motivated to build up his business.
The defendant referred to the plaintiff's history of prescriptions for anti-anxiety and anti-depressant medication such as Effexor and Valium over the years preceding the accident, noting a significant increase in dosage of Effexor in May 2018, which was the month after the plaintiff's father died.
The defendant also referred in submissions the prescriptions the plaintiff had received for strong pain relieving medications such as Endone and Targin. At least some (such as Endone and Panadeine Forte) was adequately explained by the plaintiff as the consequence of infection arising from the extraction of wisdom teeth in 2017. The defendant contended there was, however, no explanation for the plaintiff's prescriptions for Targin in 2018.
Counsel for the defendant explored this issue in cross examination by reference to entries in a report from a Dr Menogue, which was not in evidence. The relevant cross-examination is set out below: Q. Do you remember seeing Dr Menogue on 19 November 2019? A. I remember seeing Dr Menogue, yes. Q. And he asked you about an entry in the Royal North Shore discharge documents that refer to a spinal fusion, correct? A. He did. Q. And you said, I don't know anything about that, and it appears to have been perhaps mistyped - mis‑entered. A. I never had a spinal fusion. Q. No, but you did disclose to Dr Menogue that whilst you don't recall any history of a broken neck injury, but you had a condition where you would wake up in the morning some days of the week with midline low cervical ache which would spread to the occiput, which is the area behind your ear. A. Right. Q. And it was associated with headaches. Occasionally, it would spread to the right shoulder region, more so than the left, and that it particularly occurred with right upper limb usage at work, correct? That's what you told Dr Menogue? A. I don't remember, to be honest. Q. You denied any pins and needles or pain involving either upper limb prior to the accident, so what I'm suggesting to you, sir, is you were taking Endon and later Targin to manage a chronic pain condition you were experiencing with your neck and thoracic spine, correct? A. I don't know what - I don't know what we're referring to. Q. Well see, you were the one that was seeing your doctor‑‑ A. Are you trying‑‑ Q. -and taking the medication, correct? A. I don't remember. If it's in the medical - you're suggesting - trying to get me to agree that it's for my back and my neck, but I can't agree to something that I don't remember. You've - if you've got the doctor's report, it should tell you what it's for. If they don't - if they're such a heavy narcotic, they don't just hand them out as - as tic tacs.
The defendant submitted that this passage supports a finding that the plaintiff ought not be believed in his evidence that he could not recall the reason for the a prescription for Targin in July and August 2018. It further submitted that the plaintiff's evidence suggested another factor which could contribute to the plaintiff's diminished earning capacity following the accident.
Dr Menogue's report was not in evidence and the plaintiff did not adopt what had been put to him as the content of Dr Menogue's account of his consultation. Where the plaintiff answered "right" in answer to the question as to what he said to Dr Menogue, I did not understand that answer to be an acceptance of the proposition that was put, but rather an acknowledgement of the terms of the question. I did not understand the plaintiff to be resiling from that answer in his subsequent evidence. It was not put to him that he had changed his evidence. That passage of his evidence provides no evidentiary basis for the proposition advanced by the defendant as to the possible cause of any headaches that predated the accident.
The plaintiff in submission suggested an alternative explanation, being migraines or back pain, which were referred to as part of the plaintiff's active past history in the notes of Dr Chang, the plaintiff's general practitioner. The evidence is not sufficient for me to accept that Targin was prescribed to treat either migraines or back pain. In the end, there is simply insufficient evidence for a finding as to why the plaintiff had been prescribed Targin in July and August 2018.
I agree with the defendant that the plaintiff's apparent inability at trial to recall why he had been prescribed such a strong analgesic as late as August 2018 is a lacuna in his evidence. But it does not follow, in my view, that such a lacuna damages the plaintiff's credit, nor that it supports an inference of a pre-existing condition that could have caused or contributed to the plaintiff's subsequent loss.
The plaintiff is also a motorcycling enthusiast who performs his own maintenance. Since the October 2018 accident the plaintiff has been largely unable to ride his motorcycle. In March 2018, while performing maintenance on his motorbike, his hand slipped and he injured his left thumb. While there was no dispute that such an incident occurred and the plaintiff saw Dr Chang in respect of it, there was a dispute as to the extent of his injury. The plaintiff says that he suffered pain in the short term, which resolved over a few days and he was able to continue to work in his business without restriction. The defendant refers to Dr Chang's x-ray referral which describes the injury as a dislocation of the thumb, which the plaintiff relocated himself. The plaintiff denies any dislocation and relocation.
The significance of the March 2018 injury lies in the question of what caused what was subsequently diagnosed as a Bennett's fracture in the plaintiff's left hand. If the fracture were caused by the March 2018 injury rather than the 26 October 2018 motor accident, the defendant submits, any injury suffered by the plaintiff arising from that fracture was not caused by the accident for which the defendant is liable. My factual findings in this regard are set out at paragraphs [129] to [142] below. In summary, I do not find that the Bennett's fracture was caused by the March 2018 incident.
By the end of June 2018, the plaintiff had finished attending to the matters necessary to wrap up his late father's estate. He says that he was by then fully back in the harness and the prospects for his business were good. He describes his mental state as having a new born baby and "something to live for". He felt relieved and motivated and that it was time to focus on himself and his family. It may be noted that the plaintiff continued to be prescribed Valium, Effexor and Ativan for anxiety and depression.
The prospects and profitability of the plaintiff's business at that time are addressed below.

[9]

Work, treatment and pain levels after the accident

The plaintiff was unable to do any further work for several weeks. He returned several deposits he had taken on account of work he had agreed to undertake but that he did not complete.
In the period to Christmas 2018, the plaintiff continued to experience pain on the inside of the calf of his left leg, where the foot peg of his motorbike struck. That pain cleared up over a period of "a couple of months". His mobility was impaired through this period. The pain in the plaintiff's neck did not improve during this period, however, the pain in his back and ribs improved slightly. The pain in his left shoulder, arm, hand and thumb did not improve.
In February 2019, the plaintiff attempted to return to work but found he was restricted in his physical capacity to move in a way that impacted his ability to perform any work. He particularly found it difficult to work for prolonged periods sitting at his workbench. His chest, back, neck, arm and shoulder had not improved. The pain in his thumb was, in his words, "quite intense".
In addition to the pain that he was experiencing, the plaintiff lacked grip strength in his left hand. The plaintiff had always used his left hand to hold pieces in position while he used his right hand to modify or fashion each piece using tools such as files and saws. His difficulty in holding pieces in place affected his ability to perform the work and also posed a risk of physical harm. This was exacerbated by feelings of numbness in his left hand so that if the plaintiff injured his thumb again, such as by piercing or burning it, he would not necessarily be aware of it until sometime later.
Throughout 2019 the plaintiff experimented with a number of techniques to work around the difficulties he was experiencing in performing his work. They were ultimately not successful in that he remained constrained by physical limitations on his ability to work.
By the end of 2019, the plaintiff's left leg had healed but the plaintiff only noticed a slight improvement in the condition of his neck. He continued to suffer headaches of varying degrees of severity every day. Headaches are brought on by activities such as using a computer or driving a car and the plaintiff attributes them to his ongoing neck pain. He was prescribed Endone and later Mersyndol, Nurofen Plus and Prodeinextra throughout 2019. In October 2019 Dr Glen Sheh prescribed MS Contin and Gabapentin. The condition of his neck has not improved since then.
By the end of 2019, the plaintiff also noted a slight improvement in the condition of his ribs and chest, which were still not pain-free. Pain was aggravated by sitting, walking or standing for prolonged periods. The plaintiff was able to twist through his waist, but could only do so with pain. His thoracic spine was still quite painful. Ultimately, he could only sit without a significant flareup of pain in his thoracic spine and ribs for 40 to 45 minutes and could only stand or walk without pain for half an hour.
The plaintiff had experienced no improvement in his shoulder and left arm by the end of 2019 and they improved only a minimal amount by early 2020.
By the end of 2019, the pain in the plaintiff's left thumb and hand had intensified. While he is ambidextrous, he has not used his left hand to write since the accident.
In December 2019, the plaintiff was referred to Dr Mark Hile, an orthopaedic hand and wrist surgeon. After trialling non-operative treatment, in May 2020 Dr Hile performed an arthroscopic debridement and hemi-resection of the plaintiff's trapezium, and a mini-tightrope suspension. Following a long period of rehabilitation, during which the plaintiff's hand and wrist were immobilised in a splint for several months, the plaintiff lost practically all grip strength and could no longer rotate his thumb through a full range of motion. Further, he experienced an increase in the numbness in the pulp of his left thumb. He reported at least one occasion where he burned his thumb and another where he put a drill bit through it and had not immediately noticed because of the loss of sensation. While the thumb has since become less painful, the plaintiff has not recovered the dexterity and strength that he had prior to the accident.
Dr Hile reported to the insurer on 20 September 2020 that the plaintiff, following surgery, was more comfortable compared to preoperatively and had a range of movement that was about 80% of normal. It might be noted here that it is not the plaintiff's current functionality that is 80% of normal, only the range of movement in his left thumb.
In the period from the end of 2020, the pain in the plaintiff's left thumb and hand has intensified. His dexterity and grip strength have not improved. He has not noticed any improvement in sensation in the pulp of his left thumb. There is still pain associated with the mini-tightrope suspension.
In his report of 12 September 2022, Dr Hile notes that the plaintiff has now reached a steady state where he still has some significant limitations, mostly related to his occupation as a jeweller. Dr Hile notes that the plaintiff continues to suffer pain from the radial border of his wrist up through the dorsum of his thumb. The pain is, at its maximum, around the thumb carpometacarpal (CMC) joint, including the palm. The plaintiff was largely neurologically intact. His maximum site of tenderness is around his thumb CMC joint. He also has tenderness over the metallic buttons that are part of the tightrope system. An x-ray taken in September 2022 showed "a reasonable CMC joint", albeit with obvious changes related to both his injury and surgery.
Dr Hile notes the limitations as to the period for which the plaintiff can work but that he was attempting to work in a different way, using different tools and a different pattern of work. Nevertheless, the ongoing pain limited the plaintiff's capacity to work.
Dr Hile has considered further surgical options for the plaintiff. He stated: Ultimately, the ongoing issue for Troy is the degenerative change in his thumb CMC joint. It is difficult to give him a surgical option that meets the conflicting demands of movement and comfort with strength. At his age, the most reliable solution would be an arthrodesis but that does then lead to functional limitations because of the locked thumb metacarpal or thumb CMC posture. There are other surgical options such as either a CMC replacement or a simple trapeziectomy but they would have a failure rate over time in someone of his age and I think would not be advisable.
Since the end of 2020 the plaintiff has not noticed any improvement in the condition of his neck or left shoulder and arm and still experiences headaches. His thoracic spine has not improved. He still has numbness in the centre of his chest, but otherwise his ribs have improved.
Until late 2021, the plaintiff and his family continued to live in Brookvale in a home they owned, subject to a mortgage. The plaintiff was able to continue to make payments towards the mortgage, but was running down his savings and money inherited from his parents. At that point, he decided to eliminate all debt, close his business, and move to what had formerly been his parents' house at Minden near Ipswich, which he had by now inherited.
The plaintiff took a number of steps following the accident to manage his business in light of the limitations he was experiencing. In 2019, he commenced seeing a business coach, who provided some suggestions as to how to continue to manage his business. For example, the plaintiff attempted importing and wholesaling gemstones and designing jewellery for other jewellers on a wholesale level using computer-aided design ("CAD"). To this end he purchased a computer, software and a 3D printer. Those attempts had only limited success.
The plaintiff appears to be at a crossroads. The only career he has ever had has been designing and making jewellery, which he has described as his "passion since [he] was 15". He professes not to know anything else. He prides himself on the quality of his workmanship and to this end balks at suggestions that he could sell imported, mass produced jewellery in a retail jewellery outlet. This is considered below in the context of the plaintiff's residual earning capacity.

[12]

Medical treatment

Dr Chang referred the plaintiff to Dr Glen Sheh, a pain medicine and rehabilitation specialist, in about September 2019. Dr Sheh enrolled the plaintiff in numerous outpatient programs and Mount Wilga Rehabilitation Hospital, where the plaintiff eventually attended 71 times for therapy between about September 2019 and September 2020. The treatment was, on the whole, successful in reducing but not eliminating pain. The plaintiff also saw a psychologist at Mt Wilga.
Dr Sheh provided five non-medico-legal reports to Dr Chang on 26 September 2019, 7 November 2019, 11 November 2019, 7 February 2020 and 10 February 2022. Over the course of those reports, Dr Sheh found the plaintiff had suffered from midback pain, left shoulder pain and chest pain consistent with post-whiplash pain syndrome with probable injury to the left supraclavicular branch of the brachial plexus. She initially prescribed MS Contin for a short period to replace all codeine based medications as well as gabapentin and venlafaxine.
By November 2019, the plaintiff reported poor grip strength to Dr Sheh, who sought the insurer's approval for an electromyograph (EMG) test to ascertain the severity of the injury to the brachial plexus, which does not appear to have been approved.
In a progress review on 10 February 2022, Dr Sheh recorded that the plaintiff's left arm pain had persisted, extending from a left sided headache. At the time, the plaintiff could hardly move his arm. A diagnostic CT guided left C2 and C3 peri-radicular nerve block was not approved, in her view perpetuating the plaintiff's sensitised pain. The plaintiff was by then no longer taking MS Contin.
The plaintiff started seeing Mr Peter Mangioni, a consultant clinical psychologist in around April 2020, having been referred to him by Dr Sheh. Two (barely legible) reports of Mr Mangioni, dated 4 November 2020 and 16 December 2020, were in evidence. Mr Mangioni reported that the plaintiff was highly motivated to improve his physical state so he could return to work. He noted that the plaintiff was under pressure to maintain clients and was frustrated by his inability to function, that he had lost dexterity and was unable to work for periods and at his pre-accident level of efficiency. In his report of 16 December 2020, Mr Mangioni recorded that the plaintiff continued to suffer periods of depression and anger, that his resilience since the accident had decreased, but psychological intervention was assisting to stabilise his mood. The psychological intervention was not described.
Dr Hile's treatment and reports are referred to above.

[14]

Dr Uthum Dias

Dr Uthum Dias, a consultant occupational physician, provided a medico-legal report at the request of the plaintiff's solicitors on 29 October 2021. Dr Dias found the plaintiff had symptoms and signs consistent with the following conditions: 1. Chronic cervical spine pain, stiffness and discomfort, with associated chronic cervicogenic tension/migraine headaches, secondary to acute musculoligamentous strain (whiplash associated disorder level 2). On examination Dr Dias found significant limitations in forward flexion, extension and lateral flexion. 2. Chronic thoracic spine pain, stiffness and discomfort secondary to acute musculoligamentous strain; 3. Chronic left shoulder impingement syndrome, with associated subacromial bursitis, secondary to an acute rotator cuff tendon strain; 4. Chronic non-specific left chest wall/left upper limb sensory loss, paraesthesia and sensory dysaesthesia, secondary to a likely left brachial plexus sprain injury involving the superior trunk of the brachial plexus; 5. Ongoing left thumb pain, stiffness and discomfort, with associated significant post-traumatic first CMC joint osteoarthritis, secondary to an acute Bennett's fracture/dislocation of the base of the first left metacarpal bone. Notwithstanding the trapeziectomy and hook suspension, the plaintiff continued to suffer with ongoing symptomatology affecting his left thumb since surgery; and 6. Multiple left-sided rib fractures with continued numbness over his midsternal area (at three years post-accident) but no symptomatology associated with his left sided rib fractures.
Dr Dias further expressed the following views: 1. The plaintiff's prognosis for improvement with respect to his compensable physical injuries were relatively poor. He continued to suffer ongoing debilitating symptomatology three years post-accident and it was doubtful, in Dr Dias' opinion, that the plaintiff's symptomatology and disabilities would ever resolve to the point where he would be pain-free or free from functional compromise on a day to day basis in the foreseeable future. 2. The plaintiff's injuries stemming from the accident did not, in Dr Dias' opinion, aggravate or accelerate any pre-existing condition or injury. With specific reference to the plaintiff's left thumb, Dr Dias accepted the plaintiff's account that the injury healed within a matter of days of the March 2018 incident and expressed the view that it did not contribute in any way to his current condition. The plaintiff's symptomatology affecting his neck, left shoulder, chest wall, thoracic spine and left hand did not predate the accident and were entirely attributable to it. 3. Following the accident, the plaintiff was totally unfit for all work for approximately three months, and from about February 2019 to the date of Dr Dias' report, the plaintiff remained partially incapacitated for employment and partially unfit for work. Dr Dias considered the plaintiff would be fit to work on a part-time basis of up to 20 hours per week (five hours per day four days per week or four hours per day five days per week) subject to certain restrictions as to the time spent continuously sitting, standing, driving, and using a computer, and limits as to the types of tasks which could be undertaken. 4. Within these restrictions, the plaintiff was able to return to the workforce on a limited part-time basis. However, the plaintiff would be unfit to return to his lifelong vocation as a jewellery designer/manufacturer as a result of his disabilities associated with his injuries. The plaintiff would require vocational retraining to re-enter the workforce in a job commensurate with the above restrictions. Dr Dias considered the plaintiff was capable of working on a part-time basis in customer service/administrative job roles, in retail, however it was likely that he would: struggle to find employment within the scope of the above-mentioned disabilities and more likely than not it is likely that the above-mentioned disabilities would render [the plaintiff] unemployable on the open labour market within the scope of his previous education, training and experience. 1. The plaintiff is likely to remain permanently incapacitated for employment with respect to duties and hours on an indefinite basis into the foreseeable future. His prognosis of ever being able to return to his pre-injury vocation as a jewellery designer/manufacturer is poor. Taking into account his previous education, training and experience, his poor prognosis for improvement, and the prospects of further degeneration, and in addition deterioration over the remainder of his working life, the plaintiff's injuries stemming from the subject accident are likely to lead to a 75% permanent loss of earning capacity over the remainder of his working life (a further 25 years). Further, the plaintiff's work life is likely to be foreshortened by approximately 10 years, given the risk of further degeneration and deterioration of his injuries, particularly his left hand injury. 2. The plaintiff may benefit from vocational retraining, the cost of which will depend on the types of vocations the plaintiff is looking at re-entering, subject to the limitations as to the tasks he could undertake. 3. The plaintiff is not likely to require any operative procedures in the future, other than a fusion procedure of his left thumb CMC joint which may be required, depending on his clinical progress over the course of the next 10 to 15 years. If he undertook such a procedure, he would be unable to work for at least three months following surgery. 4. Dr Dias expressed further views as to out of pocket expenses, which are not relied on as part of the plaintiff's claim.

[15]

Associate Professor Peter Haertsch

Assoc Prof Haertsch, a plastic, general reconstructive and hand surgeon, saw the plaintiff on 15 April 2021. On examination of the plaintiff, Assoc Prof Haertsch found flexion of the metacarpophalangeal joint of the thumb at 40, full extension and normal abduction, adduction and opposition. There was an oval area of numbness on the ulnar aspect on the tip of the thumb and the pulp of the radial aspect of the base of the first metacarpal. He attributes the plaintiff's symptoms entirely to the Bennett's fracture dislocation of his left thumb.
Assoc Prof Haertsch inspected x-rays, which showed osteoarthritis of the left basal thumb joint based on an old Bennett's fracture dislocation at the base of the first metacarpal. Assoc Prof Haertsch noted the plaintiff's trapeziectomy and hook suspension surgery, following which he was in a splint for several weeks before returning to work in a limited fashion some three to four months later, having undergone therapy until December 2020. Assoc Prof Haertsch reported that the plaintiff was working full-time, but with diminished grip and with some degree of immobility in his left thumb with numbness on the ulnar aspect of the pulp of the thumb and aching in the thumb.
Under the rubric "Future treatment (including costs and duration of treatment)", Assoc Prof Haertsch stated that the plaintiff "requires either a replacement of his left trapezium or a fusion of the carpometacarpal joint". Assoc Prof Haertsch went on to state that the plaintiff's prognosis is guarded and his ability to resume a normal life is guarded until such time as he has surgical intervention. He goes on to state that the plaintiff's "work ability range will only improve with surgery".
This opinion, to the extent that the defendant relies on it to demonstrate that the plaintiff's ability to work as a jeweller will necessarily improve if he has one or the other of the surgeries referred to earlier in Assoc Prof Haertsch's report, would be at odds with the views expressed by Dr Hile, referred to at paragraph 83 above. This is considered further at paragraph 148 below.

[18]

Dr Jeff Bertucen

Dr Jeff Bertucen, a consultant psychiatrist, saw the plaintiff on 8 April 2020 at the request of the plaintiff's solicitors.
Dr Bertucen assessed the plaintiff against the Montgomery Asberg Depression rating Scale and found the plaintiff demonstrated high-moderate depressive symptomatology. He also conducted a mental state examination observing the plaintiff's mood was frankly depressed, easily agitated and reflected in the mood congruent restricted affect. These were matters of observation.
Overall Dr Bertucen found that the plaintiff was suffering from chronic post-traumatic stress disorder (PTSD) and a chronic adjustment disorder. The adjustment disorder (but not the PTSD) was, in Dr Bertucen's view, more properly regarded as an aggravation of a pre-existing major depressive condition. It is common ground that the plaintiff was, at the time of the accident, suffering from such a condition, deriving from the loss of his parents in quick succession in 2017 and 2018.
Dr Bertucen's view is that the plaintiff's prospects of improvement depend on successful resolution of his thumb injury. While he regarded the hand injury as the primary cause of the ongoing restriction of the plaintiff's earning capacity, he found that the plaintiff also suffers from low mood, demotivation and frustration, which also impairs his focus in performing appropriate duties.
The defendant submitted that Dr Bertucen's opinion was ultimately of no assistance because it depends on the establishment of facts (as to the plaintiff's low mood, demotivation, frustration and ability to focus) which were not matters of observation but had to be otherwise proved by the plaintiff in the proceedings and the plaintiff had not done so. Senior counsel for the plaintiff pointed to the plaintiff's evidence of feeling lost and disappointed. This, in my view, only lends limited support to Dr Bertucen's views.
On balance, however, I am satisfied that the matters addressed in Dr Bertucen's report were predominantly matters of observation, including the administration of diagnostic tests, which forms a proper basis for the opinions he expresses.

[21]

Differing accounts in medical consultations

In Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], Basten JA explained the difficulty in discounting a plaintiff's oral testimony on the basis of accounts given to various health professionals which appear inconsistent with each other or with the plaintiff's oral testimony: In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following: (a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made); (b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort; (c) the histories did not make reference to the questions which elucidated the replies; (d) the material recorded was a summary of answers rather than a verbatim recording, and (e) there may be a range of factors, including fluency in English, the practitioners knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history.
In this regard see also Mason v Demasi [2009] NSWCA 227.
The defendant submitted that the nature of the plaintiff's complaint was such that much of the diagnoses of his condition by various reporting doctors depended on the acceptance of symptomology communicated by the plaintiff as opposed to frank pathology, such as radiological findings and results. As such, the accuracy of what was communicated by the plaintiff and accepted by the reporting doctors has particular significance in assessing the plaintiff's injury and disability.
The defendant identified several apparent inconsistencies between the plaintiff's evidence as to his injury and disability and what was recorded in the RNSH notes, Dr Chang's notes, the reports of Drs Dias, Sheh, Porteous, Hile, Haertsch and Burns as well as the results of an MRI referred to in Dr Sheh's report of 26 September 2019. In summary, those inconsistencies predominantly relate to: 1. The absence of any recorded complaint of low back pain by Dr Dias or Dr Chang; 2. The RNSH discharge summary notes no cervical spine tenderness, head injury or midline back pain or abnormality in the plaintiff's limbs; 3. An inference that Dr Chang only weakly associated the plaintiff's Bennett's fracture with the accident. This was in a note dated 8 July 2019 in which Dr Chang recorded "painful base of left thumb with swelling for several months (?since MVA in October 2018)"; 4. The lack of radiological support for any brachial plexus sprain injury.
These inconsistencies do not, to my mind, derogate from the plaintiff's evidence or its reliability. For the reasons identified in Container Terminals Australia and referred to in Mason, I do not find them to be sufficient (either alone or in combination with the other matters relied on by the defendant as to credit) to undermine the plaintiff's credit or his evidence as to the extent of his injury.
Nothing turns on the apparent level of confidence or lack thereof in Dr Chang's note of 8 July 2019.
Finally, it was not established to my satisfaction that the plaintiff's shoulder injury could only be established as genuine if there was radiological support for the diagnosis of a brachial plexus strain.

[25]

The cause of the plaintiff's Bennett's fracture

The plaintiff says the fracture was caused by the accident in October 2018. The defendant contends that the most likely cause of the Bennett's fracture was the injury suffered by the plaintiff in about March 2018 while he was maintaining his motorcycle.
In cross-examination about the March 2018 incident, the plaintiff stated: I was doing an oil change on my motor bike and a socket slipped off the sump plug, and I whacked my hand into the motor of the motor bike and actually split the sump open and it hurt my hand, so I went to Dr Chang and had an x‑ray of my hand. I was sent home, told nothing was wrong and to ice it, and I did that, and I'd also taken my motor bike down to get them to weld the sump plug up and change the tyres that you were referring to earlier.
This corroborated an earlier written statement, in which the plaintiff said at [60]-[61]: On 22 March 2018 I sustained bruising and swelling of the left thumb and index finger as I was servicing my motorcycle. I was using a socket set to remove the sump plug on the bike. The socket slipped off the bolt and I injured my left hand on the engine of the motorcycle. There were no other parties involved. I consulted my General Practitioner Dr Chang. He arranged for plain x-rays to be taken of the left hand. Dr Chang viewed the plain x-rays and recommended applying ice to reduce the swelling of the left hand and to take Panadol for pain relief. The swelling was reduced of [sic] the next 2-3 days, after which the left hand was back to normal. There was no dislocation of the left thumb, and I did not "relocate it myself". I only consulted Dr Chang in relation to this incident. There were no claims made in respect of this incident.
Dr Chang's x-ray referral of 22 March 2018 to I-Med Radiology states: Plain x‑ray - hand, left, plain x-ray thumb, left, plain x‑ray finger, 2nd left. last night: MBA, dislocated left thumb, relocated it himself. Pain, bruising, swelling left thumb and index finger
The plaintiff denied dislocating his thumb, stating that he did not even know how to relocate a dislocated thumb. He could not explain how Dr Chang came to write the note he did in March 2018.
There was no challenge to the plaintiff's evidence that he was not physically restricted in his ability to work as a jeweller in the period March to October 2018.
While, in accordance with Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 it is necessary to treat the history taken by Dr Chang with care, I find it is more likely than not that the description of the incident provided by the plaintiff to Dr Chang at least allowed the doctor to conclude that the plaintiff did dislocate his left thumb on that occasion. The plaintiff may or may not have described the injury as a dislocation. I cannot conclude that any opinion expressed by the plaintiff in this regard would carry much weight. Dr Chang did not see the thumb in its allegedly dislocated state and the reference to dislocation was not a result of any observation by him. It does not follow that his conclusion was made with any confidence. Indeed, further investigation was why he referred the plaintiff for an x-ray.
On the material before me I cannot conclude that the plaintiff did in fact dislocate his thumb in March 2018.
Even if I were satisfied that the plaintiff did dislocate his thumb, it does not follow that the plaintiff suffered the Bennett's fracture on that occasion. There is no evidence that the x-ray, which was specifically taken to address the issue with the plaintiff's thumb, disclosed any fracture. There is no evidence that a Bennett's fracture is a necessary or even a likely consequence of dislocation. I also take into account the plaintiff's unchallenged evidence that he was not impeded in the performance of his work in the period March to October 2018.
Although the parties agreed that Bennett's fractures are difficult to detect, the evidence does support a finding that the plaintiff's fracture was caused by the accident in October 2018. On 15 November 2018 a bone scan was undertaken for the purpose of assessing the plaintiff's chest injury. The scan is not in evidence but was referred to by Dr Hile in his report to the insurer of 16 March 2020. Dr Hile states: I have seen some images of the bone scan. They were essentially done to examine for rib fractures. There was increased uptake in Mr Clancy's ribs that were consistent with a fracture. They were then treated as such. The question has arisen because of his now recognised issue with his thumb was - What were the findings of the bone scan related to his thumb? There were not focused scans or images performed of his thumb. Nonetheless there was focal uptake in the region of his thumb CMC joint. I note the report only mentions one possible pathology as a cause for increased uptake being osteoarthritis. That is a deceptive report as it should have read there was increased uptake which was consistent with a number of pathologies including fracture or osteoarthritis. Given the age of Mr Clancy, it is unlikely he would have common or garden osteoarthritis at the age of 41. Taken on his word, he does not report any problems with his thumb prior to the motor vehicle accident. Therefore, the scans are entirely consistent with the changes around his thumb being due to bony injury. That is consistent also with his follow on imaging being a Bennett's fracture with displacement and a subsequent intra-articular step and progressive degenerative change.
Dr Hile goes on to opine that the bone scan is consistent with the thumb being acutely injured and that the scan would not necessarily differentiate between acute injury and degenerative change. Dr Hile reiterated that the scan was consistent with both degenerative change and acute injury, but considered it was more consistent with an acute injury that then progressed to osteoarthritis because of the untreated changes.
On the assumption that the plaintiff had not experienced any problems with his thumb prior to the accident, Dr Hile accepts that osteoarthritis could have developed by the time of the scan as a result of the 26 October 2018 accident. There was no challenge to this aspect of his report and no evidence to the effect that a longer period would have been necessary for osteoarthritis to develop such as to explain the 16 November 2018 bone scan.
Significantly, Dr Hile states that plain x-rays demonstrate a Bennett's type fracture. This was the type of x-ray that the plaintiff had in March 2018 which is not in evidence.
In light of Dr Hile's report, the plaintiff's oral evidence and the absence of any evidence that the x-ray in March 2018 disclosed any fracture, I am satisfied that the osteoarthritis in the plaintiff's left hand first observed on 15 November 2018 was caused by an acute injury sustained in the accident on 26 October 2018.

[26]

Conclusion as to the plaintiff's thumb injury

Drs Sheh, Porteous and Dias all record pain and swelling around the base of the plaintiff's left thumb. Dr Burns attributes the Bennett's fracture to the accident. Dr Hile's evidence shows the extent of the treatment undergone by the plaintiff and the persistence of pain, poor grip strength and restricted movement thereafter.
Several video files of a jeweller, Angelo Barboutis, at work undertaking the types of tasks required of a jeweller, were played to the Court. The tasks demonstrated the free and unrestricted use of the jeweller's hands, including the thumbs of both hands. Some degree of force was used, both in gripping items and using tools such as pliers and a draw plate. The plaintiff described those tasks as elemental to the work of a jeweller. On the basis of the video evidence and the plaintiff's narration, I accept that the unrestricted use of both thumbs is essential to the day to day work of a jeweller working by hand.
The plaintiff does not have a full range of movement in his left thumb and is restricted in his ability to apply pressure and feel with adequate sensitivity through his left hand. Even when counsel sought to demonstrate that a sufficient range of motion would be possible without movement in the CMC joint, I found that not moving that joint did in fact restrict the range of motion of the left thumb. Together with the plaintiff's numbness in the pulp of his left hand, I find that the consequences of the Bennett's fracture, notwithstanding the improvement achieved by the surgery performed by Dr Hile, places a significant restriction on the plaintiff's ability to work as a jeweller.
The question then arises as to whether further surgical intervention would improve the plaintiff's facility, such that he could resume his business as a jeweller or at least lessen his ongoing pain. Assoc Prof Haertsch stated "His [the plaintiff's] work ability will only improve with surgery", referring either to a replacement of his left trapezium or to a fusion of the carpometacarpal joint. The plaintiff's subjective understanding of fusion surgery was that it would improve his pain, but impose such a restriction on the use of his thumb as to be career ending. He was not prepared to agree that he would ever undergo such surgery. Dr Hile's opinion lends support to this view.
The defendant submitted that I could construe Assoc Prof Haertsch's statement as indicating that the plaintiff's work ability would necessarily improve with surgery. The effect of such surgery could then be factored into an assessment of the plaintiff's economic loss and non-economic loss. The plaintiff submitted that, properly construed, the statement means only that the plaintiff's condition would not improve without surgery. While, as a matter of language, the plaintiff's construction is preferable, little turns on it. The defendant has not pleaded failure to take reasonable steps to mitigate his damage and the question does not arise on the pleadings.
In any event, I am not satisfied on the evidence before me that the plaintiff would be unreasonable in not submitting to either surgery identified in Assoc Prof Haertsch's report. Aside from the plaintiff's subjective understanding, the views expressed by Dr Hile in his 12 September 2022 report support this conclusion. A defendant bears the burden of proving that a plaintiff has failed to mitigate damage by declining to submit to some surgical procedure or medical treatment: Luntz and Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis) at [1.11.24]. See also s. 4.15(4) of the Act in this regard. The evidence before me does not discharge that burden.

[32]

Damages

The plaintiff's claim for damages is governed, generally, by Pt 4 of the Act. Specifically, the plaintiff seeks: 1. Damages for past and future economic loss under Div 4.2 of the Act; and 2. General damages for non-economic loss under Div 4.3 of the Act.
There is no claim for out of pocket expenses or superannuation. The defendant has conceded that the plaintiff has exceeded the applicable impairment threshold under the Act of 10%.
"Damages" are defined in s 1.4 of the Act to mean damages within the meaning of the Civil Liability Act 2002 (NSW) (the "CLA") in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but not including statutory benefits. "Injury" is defined in s 1.4 of the Act to mean personal or bodily injury and includes psychological or psychiatric injury. "Non-economic loss" is defined to mean pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement.
The other relevant provisions of the Act are: Division 4.2 Damages for economic loss 4.5 Limits on economic loss (1) The only damages that may be awarded for economic loss are (subject to this Division) - (a) damages for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, and … (d) damages by way of re-imbursement for income tax paid or payable on statutory benefits or workers compensation benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies. Note - See also section 3.40 for repayment out of damages awarded of weekly payments of statutory benefits (and certain other payments of statutory benefits) made before the award of damages. … 4.6 Maximum for loss of earnings etc (cf s 125 MACA) (1) This section applies to an award of damages - (a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for the loss of expectation of financial support. (2) In the case of such an award, the amount (if any) by which the injured or deceased person's net weekly earnings would (but for the injury or death) have exceeded the maximum weekly statutory benefits amount under Division 3.3 is to be disregarded (even though that maximum weekly statutory benefits amount is a maximum gross earnings amount). … 4.7 Future economic loss - claimant's prospects and adjustments (cf s 126 MACA) (1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. … 4.9 Damages for future economic loss - discount rate (cf s 127 MACA) (1) If an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss that is referable to - (a) deprivation or impairment of earning capacity, or (b) loss of expectation of financial support, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. (2) The prescribed discount rate is - (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed - a discount rate of 5%. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. 4.10 Economic loss reduction (cf s 130 MACA) In an award of damages for economic loss of an injured or deceased person as a consequence of a motor accident, the amount of economic loss is to be reduced by any amount of a kind prescribed by the regulations for the purposes of this section. Division 4.3 Damages for non-economic loss … 4.13 Maximum of amount of damages for non-economic loss (cf s 134 MACA) (1) The maximum amount of damages that may be awarded for non-economic loss is $521,000. (2) If that amount is adjusted by the operation of section 4.22 (Indexation of maximum for non-economic loss damages), the applicable maximum amount is the amount as at the date the award is made.
Section 4.5(1)(d) codifies the rule in Fox v Wood (1982) 148 CLR 438.
The maximum amount that may be awarded for non-economic loss under s 4.13 of the Act was adjusted from 1 October 2022 by the Motor Accidents Compensation (Determination of Loss) Order 2022 to $605,000.

[33]

Assessment of damages: non-economic loss

At law a person who has suffered physical injury in circumstances giving rise to a claim for damages is entitled to fair and reasonable compensation for the pain and suffering undergone. Under the Act, the common law principles of "full compensation" apply: Hodgson v Crane (2002) 55 NSWLR 199. The parties agreed that assessment of the plaintiff's damages is not constrained by the principles of assessment under the CLA. Rather, the assessment that is required is a common law assessment, subject only to the cap under s 4.13.
The plaintiff claims for non-economic loss in respect of both physical and psychological injury. He is presently 44 years of age, with a residual life expectancy of 38.8 years.
The plaintiff suffered eight broken ribs, injury to his left hand including a Bennett's fracture that has resulted in osteoarthritis of the thumb CMC joint, injury to his cervical and thoracic spine, injury to his sternum, left shoulder and the calf of his left leg. He was briefly knocked unconscious and suffered a significant amount of pain during the acute phase of his injuries and on a chronic basis. While some of the symptoms have now resolved, others have not, and on the evidence, appear unlikely ever fully to do so. The plaintiff underwent surgery to his left hand in May 2020, following which his hand was immobilised for some months. Overall, his pain and suffering have been considerable.
The plaintiff has been deprived of his ability to work full time in the only career he has ever known, which had brought him great enjoyment and satisfaction. In that career, he operated at a high level of achievement and had performed creatively satisfying and prestigious work. He feels lost and disappointed. He is also a motorcycle enthusiast, who has been limited in his ability to enjoy riding his motorcycle. He is limited in his ability to sit or stand still for long periods. He continues to suffer from the aggravation of a pre-existing major depressive condition.
The plaintiff submits damages for non-economic loss ought be assessed at $400,000. The defendant submits that taking the plaintiff's evidence at its highest, the award should be no more than $100,000 to $150,000, particularly when the plaintiff's pre-accident condition is taken into account.
The defendant suggested that I could assume that the plaintiff would undergo fusion surgery, which would eliminate the source of his osteoarthritis and remove pain and suffering in his thumb as a basis for compensatory damages. The defendant also submitted that surgery would improve the plaintiff's ability to work, and therefore eliminate another basis of the plaintiff's claim for non-economic loss, being the impact on his amenity of the loss of his ability to work full time as a jeweller. The balance of the defendant's submissions in this regard appeared to require findings adverse to the plaintiff on factual questions as to the existence and impact of the plaintiff's soft tissue injury.
I have not accepted the defendant's submissions as to the plaintiff's soft tissue injury. Further, I am not prepared to make assumptions as to the plaintiff submitting to surgery, still less as to the range of outcomes of such surgery. I do not take into account the prospect of the plaintiff undergoing further surgery or any failure on his part to do so into account in assessing his non-economic loss.
Having regard to the submissions of counsel, the extent of the plaintiff's physical and psychological injuries, including both those that have resolved and those that have not, and the period over which the plaintiff is likely to continue to be affected, I consider an appropriate award for non-economic loss as defined in s 1.4 of the Act to be $275,000.

[35]

Past and future economic loss: plaintiff's notional income

The plaintiff propounds a figure of $242,281.00 as reflecting his past economic loss up to the date of the hearing in November 2022. If accepted, that figure will need to be updated to the date on which orders are made.
The assumptions and calculations underlying the plaintiff's claim for economic loss are set out in two reports prepared by Mr Lance Kahler of Vincents Chartered Accountants, dated 22 January 2021 and 30 May 2022 (respectively the first and second Kahler report and together the Kahler reports). The defendant relied on a report prepared by Matthew Gwynne of PKF (NS) Forensic Accountants Pty Ltd dated 14 March 2022 (the Gwynne report) and a letter from Mr Gwynne to Mr Prashanth Johnson of Insurance Australia Ltd dated 16 December 2019. Neither expert was cross-examined and, unhelpfully, there was no joint report.
Mr Kahler made the following assumptions: 1. Other than for financial year (FY) 2015, the plaintiff's capacity to work in the business on a fully focussed and full time basis in the five years prior to the accident was impaired by his divorce and subsequent property settlement and the illness and deaths of both of his parents. 2. In the months between the death of his father and the accident, the plaintiff was working on a fully focussed and full time basis. 3. Had the accident not occurred: 1. The plaintiff would not have incurred certain expenses, such as hiring a business coach in January 2019. 2. Core Sales of the business for the balance of FY2019 would have been at least equal to the core sales for the three quarters ended 30 June 2017. 3. Thereafter, Core Gross Profit would have gradually increased in equal annual increments over three years such that by end FY2022, the business would have derived a Core Gross Profit equal to the Core Gross Profit achieved in FY2015, adjusted for CPI. 4. The plaintiff would have continued to conduct the business until either age 67 or age 70. 5. The plaintiff would have continued to remain living and working in Sydney, operating the business from commercial premises. 1. In his first report, Mr Kahler arrives at a calculation of the plaintiff's economic loss, however in his second report, he confines his analysis to a calculation of the plaintiff's notional future weekly income.
The defendant takes issue with the assumptions in the Kahler reports and some matters of calculation. However, there is no real dispute about the methodology used. Aside from a disagreement about the correct variable expenses to core gross profit ratio, and the proper treatment of CPI increases and COVID-19 relief in 2020 and 2021, the key disputes between Mr Kahler and Mr Gwynne concern the assumptions at paragraphs 182(3)(b) and 182(3)(c) above as to the appropriate comparators, being: 1. the period October 2016 to June 2017 for the post-accident balance of FY2019; and 2. FY2015 for each financial year from FY2022 to the plaintiff's retirement.
Mr Gwynne's basis for disagreeing with the assumptions was based on the following observations: 1. Sales revenue in August 2014 was abnormally high, apparently due to two transactions in which three diamonds were sold. 2. The plaintiff had commenced copyright infringement proceedings against a competitor who had opened a store in King Street near the plaintiff's premises in August 2015, and who may have caused long term detriment to his business. 3. Mr Gwynne contends there was no evidence that the plaintiff would have managed pricing appropriately. 4. Mr Gwynne calculates average weekly sales in the period May 2018 to October 2018 were only $5,117 and in the 12 months prior to the death of the plaintiff's father in April 2018 they were $5,656. In each case, sales were substantially lower than the $6,330 implicit in Mr Kahler's assumption. Accordingly, Mr Gwynne contends that any increased output and focus on the part of the plaintiff did not support the adoption of the period October 2016 to 30 June 2017 as an appropriate comparator for the balance of FY2019.
The defendant makes a more general submission to the effect that the plaintiff ought not be permitted simply to "pluck one higher profit pre-accident's year profit to extrapolate what his future earnings would have been but for the accident." In this context, the defendant refers to the plaintiff's history of a major depressive illness and unexplained prescriptions in 2018 for strong pain analgesics.
As a matter of principle, I agree that a single year's accounts forms an unsatisfactory comparator for future notional income. Ordinary commercial volatility counsels against taking a single year as indicative of a steady state of affairs and it cannot reflect a trend. Ordinarily one would expect to see a number of years' financial statements and accounts in order to form any view as to likely future earnings and profitability.
The specific matters on which Mr Gwynne relies, however, carry little weight in my view. For example, Mr Gwynne relies on the apparent aberrant nature of sales in August 2014. It was not suggested that such sales were outside the Core Sales of the plaintiff's business. Indeed, according to the general ledger extracted at Appendix G of his report, this was from the sale of three diamonds, which appears to fall within any reasonable definition of a jeweller's core business. The plaintiff was not cross-examined about them and it was not suggested that the nature of the sales was an aberration. The plaintiff aspired to service the high-end of the market, where one would expect the sales of expensive diamonds to occur. In this circumstance, I am not satisfied that those sales were an aberration or that they ought be discounted from an assessment of the plaintiff's Core Sales.
Similarly, there appears to me to be no basis on which the plaintiff's legal dispute with a commercial rival ought be treated as a factor which caused long term detriment to the plaintiff's business. There appears to be no factual basis on the evidence for any such assertion. I do not accord that matter any weight.
Further, there is no basis to assume that the plaintiff would not have managed cost increases appropriately. Indeed, Mr Gwynne's assumption appears to run directly counter to the submission made by the defendant (and in respect of which the plaintiff agreed in cross-examination) that the plaintiff had all the skills necessary to operate a jewellery retail business and that he understood the business and the market. I find there is no basis in Mr Gwynne's suggestion that the plaintiff would not have managed costs appropriately in a changing environment.
Mr Gwynne's analysis of weekly sales, however, does raise the significant issue of whether there is any, or any sufficient, nexus between what the plaintiff says was his ability to work unimpeded by distressing personal issues (separation and divorce, the illness and deaths of his parents) and increased Actual Adjusted Net Business Income (Actual ANBI), Core Sales and profitability.
When counsel for the defendant raised this issue with the plaintiff, he gave the following evidence: Q. Sorry to ask you this, but do you recall the month when your father passed away? A. Not in great detail. Q. Well, roughly? A. I know the month, yes. Q. What's that? A. It was in April. Q. So, the six months before April, that included your wedding season, didn't it? A. It would have, yes. Q. Also, Christmas? A. Yes, that's right. But, unfortunately, because I wasn't making the engagement rings at the start of the year when my mother passed away, I didn't have wedding season. Wedding season and wedding rings only apply to - I didn't just get - typically, most people would go back to where they'd bought their engagement rings, because they've already built a rapport, a relationship, with the jeweller, so if I didn't make the engagement ring, I don't tend to get just randoms wanting wedding rings from me, out of the blue. Q. And that didn't have anything to do with the sad circumstances of your mother passing away, as people either came to you or they didn't; correct? A. Sorry, I don't understand where that's coming from. Q. Well, you were still continuing to work during this period? A. I was attempting to, yes. Q. And you weren't sending people away who came in and said, "I'd like you to do me a wedding ring", were you? A. I wouldn't turn people away, but I certainly wasn't advertising and trying to make myself extremely busy, either. Q. And you've told his Honour that your evidence is - and you've told, I think, the accountant in this case - that the way you were surviving in the period after your accident was by selling jewellery that you'd already made; in other words, your stockpile, if I can put it that way, of manufactured product, that you were able to continue to sell, which you used to supplement your earnings; correct? A. Yes, I'd sold some pieces. Q. So, in the 12 months prior to your father's unfortunate passing, I'd suggest your average weekly takings were $5,656. I want you to take it that that's what the accounts, the evidence, demonstrates, all right? And that was a period of time when you've said that you were very distracted, upset and not working at anything like full pace, because of the emotional upheaval involving your father's situation and of course, the recent death of your mother; correct? A. Yes, I don't quite understand this, but yes. Q. And you've said that after your father passed away, you were able to focus and get back to working full‑time; correct? A. Yes. Q. And I'd like to suggest to you that in the period following your father's passing away and the motor accident, your average earnings per month were $5,117? A. Right. Q. So, you've said that you were able to make 5‑6‑5‑6 when you weren't focused, but you only made $5,117 when you were. Can you explain how that‑‑ A. Yeah, that's very easy. Because when I wasn't focused, I already had orders, obviously, before my parents had passed away, in the pipeline, that had been manufactured and sat in the safe. Some sit for a day, some sit for a couple of months. I also did the wholesale work, sitting on 30‑day accounts, which, most typically, aren't paid on 30 days, so there's a delay in getting paid. So, by the time my father passed away, I hadn't done much work prior to my father passing away. Then my father passed away; I had a funeral to arrange, in Queensland. I had to see his lawyers to tidy‑up the estate and the house and all that, that sort of stuff, which only really left me a few months to try and do some work. And I was working from nothing built‑up behind me, no orders being placed behind me, no customers seen behind that. Starting again from fresh, so there's a delay period before you can start to get the appointments in for the customers, do the designs. Things don't get made and handed out the door - you know, ordered on Monday and handed out the door on Friday. They usually are typically a one‑month wait, minimum, for customers, because I need to source diamonds and gemstones, order in the gold, things like that. So, yes, there is a bit of lay - delayed time period, so that earning capacity is well on my way to getting back to normal.
The plaintiff's explanation appears adequate to explain the apparent incongruity of the plaintiff's income not reflecting what he says was his ability to work long hours in a focussed and productive way at that time.
On Mr Kahler's calculations, revised to take account of criticisms made by Mr Gwynne, Actual ANBI in FY2014 was $58,703, in FY2015 it was $91,948, in FY2016 it was $64,240 and in FY2017 it was $79,693. In FY2018, after the death of the plaintiff's mother and during the period of the plaintiff's father's illness and death, Actual ANBI was $56,561.
The plaintiff's evidence was that he was not impaired by personal circumstances from working long and productive hours in FY2015, but that in calendar year 2016, he commenced travelling to Queensland almost every week to tend to his mother, while in the period near her death he was in Queensland for periods of one to one and a half weeks. After she died, the plaintiff "went down a deep, dark hole" emotionally and this likely continued into FY2018, when the plaintiff's father's illness became the major source of his personal stress.
I accept the plaintiff's evidence in this regard. There is no direct and immediate temporal nexus between the hours and level of productivity the plaintiff says he was able to devote to his business and Actual ANBI or profitability. This is because a decline in business could be masked by the plaintiff being able to run down his inventory and to trade for a time relying on the pipeline of work resulting from work already performed. On the other hand, the absence of such a pipeline arising from a period of no or limited business would drag on sales and profitability even when the plaintiff is working without impairment.
On the whole, I am satisfied that the plaintiff has explained the volatility in Actual ANBI prior to the accident by reference to personal factors associated with his divorce and the illness and deaths of his parents. On balance, I do not accept the bases advanced by Mr Gwynne in opposition to the assumptions relied upon by Mr Kahler. I accept that FY2015 is the appropriate comparator for the purpose of ascertaining the plaintiff's notional income after the accident. Accordingly, the notional income against which the plaintiff's economic loss is to be assessed is the Actual ANBI for FY2015, adjusted for CPI.

[36]

Past economic loss: lost actual income

It is clear, however, that following the accident Actual ANBI declined precipitously and did not recover before the plaintiff closed the business. Actual ANBI for FY2019 was $41,875 (for the full year in which the accident occurred and in which the plaintiff was wholly incapacitated for some months), for FY2020 it was $32,622, for FY2021 it was $29,091 and for the 10 months to 30 April 2022 it was $17,126. The plaintiff closed his business in late 2021. This demonstrates a clear trend of decline, notwithstanding the impact of COVID-19 relief payments and the possible impact of COVID-19-related lockdowns on the plaintiff's trade.
Following the death of his father. the plaintiff contends he would have restored his pre-accident level of ANBI and profitability by FY2022, a period of four years interrupted by the accident.
The plaintiff commenced business in 2010 and reached the FY2015 level of Sales and profitability over the course of five years. The plaintiff had had some private work in the period to 2010 but it appears he commenced his business and built it up to the level it reached in FY2015 more or less from scratch. During that period, he had to contend with the issue of his broken marriage.
For the plaintiff, having already achieved that level of business over five years once, to do it again over four years does not appear to me to be an unreasonable assumption. As Mr Gwynne approached the question from an entirely different standpoint, he did not engage with this issue, simply stating it was an issue for the court.
I find that, but for the accident, the plaintiff's business would have recovered the same average levels of ANBI, sales and profitability as had been the case in FY2015 by FY2022. For the sake of simplicity, I accept that the increase in profit and ANBI would occur in a straight line, there being a 25% increase in each year between FY2019 and FY2022.
A further question remains with respect to how CPI adjustments are to be accounted for.
Mr Kahler indexes actual gross profit of the business during FY2015 to account for CPI movements since then. Mr Gwynne disagrees with this assessment on the basis that there was no evidence that the plaintiff would, in the period from the date of accident to the date of calculation, have increased prices after allowing for fluctuations in prices of precious metals, gemstones, etc to increase gross profit in line with CPI movements each year.
I do not accept that criticism. As was agreed by the plaintiff in cross-examination, he had the skills necessary to run a jewellery business, including managing costs and pricing. Further, the plaintiff had maintained a consistent gross profit margin of at least 40% (rising as high as nearly 50% in FY2016 and FY2020), which is consistent with the proprietor of the business adjusting sale prices to account for changes in the cost of raw materials.
On the basis of Mr Kahler's calculations, therefore, I find that the plaintiff's notional ANBI for the period FY2022 and onwards, therefore is that of FY2015 adjusted for CPI, which is $131,151 for FY2022 and $127,902 for FY2023 onwards, before tax.
Accordingly, following table sets out the notional income of the plaintiff but for the accident in these years, the notional income after tax, the plaintiff's actual income before and after tax and calculates the net loss of income, using the figures derived by Mr Kahler from the plaintiff's books and records: FY2019 ($) FY2020 ($) FY2021 ($) FY2022 ($) Notional income before tax 90,581 89,117 111,578 131,151 Less: tax payable (21,761) (21,212) (28,529) (36,216) Notional income after tax 68,820 67,905 83,049 94,935 Actual income before tax 41,875 32,622 29,091 17,126 Less: tax payable (5001) (2,693) (1,696) - Actual income after tax 36,874 29,930 27,395 17,126 Loss of income 31,946 37,975 55,654 77,809 Past loss of income to 30 June 2022 203,385

[38]

Future economic loss: assumptions and notional future income

The starting point for an assessment of the plaintiff's future economic loss is for the Court to satisfy itself that the assumptions as to future earning capacity or other events on which the award is based accord with the plaintiff's most likely future circumstance but for the injury: s 4.7(1).
On the basis of the evidence before me, I am satisfied that the most likely relevant future circumstances of the plaintiff but for the injury are that he would have worked to age 67 as the sole jeweller in his own business, based in Sydney New South Wales, designing and manufacturing medium to high end pieces for the retail and wholesale markets. In his business he would have maintained a level of sales and profitability at least equivalent to that derived by his business in FY2015 as adjusted for CPI.
The plaintiff posited two, alternative periods over which the plaintiff would have continued to work: either age 67 or age 70. The defendant contended there is no evidence in support of either period. There is nothing before me to suggest the plaintiff would have continued to work to age 70. In the absence of any evidence that the plaintiff would have retired earlier than 67 I am prepared to infer that he would have continued to work until he reached the pensionable age of 67, given his evident enjoyment of his work and the nature of the physical demands on a person not suffering from any of the disabilities suffered by the plaintiff as a result of the accident.
The evaluation of future economic loss is an evaluation of possibilities as to the plaintiff's ability to carry on various careers which would have been open to him but for the accident: Malec v JC Hutton (1990) 169 CLR 638 at 639 and State of NSW v Moss (2000) 54 NSWLR 536 at [71]. It is necessarily less precise than a calculation of past loss. The estimation of future possibilities is an imprecise and indeterminate one to be carried out within broad parameters: Moss at [71]
In assessing the plaintiff's future economic loss, it is necessary to assess the plaintiff's notional future income against his residual earning capacity and then to make adjustments for the present value of future income and for what is commonly referred to as the vicissitudes of life.
I have approached the plaintiff's notional future income/earning capacity as rising no higher than his after tax income in FY2015 based on ANBI and Gross Profit, making adjustments for CPI and fixed and variable costs in accordance with Mr Kahler's analysis. I do not find, and was not asked to find, that the plaintiff's earning capacity would continue to increase beyond a level that would have restored the plaintiff's income as at FY2015 adjusted above. According to Mr Kahler's figures, the plaintiff's notional annual income before tax is $127,902. Because of changing tax rates his notional after tax income would be $92,935 for FY2023 and FY2024 and $95,381 thereafter.
In Mr Kahler's second report, he calculates the lump sum present value (as at 30 May 2022) of the plaintiff's notional future weekly income as $1,324,942 assuming the plaintiff retires at age 67. His calculations are summarised below: FY2023 ($) FY2024 ($) FY2025 to 16-Nov-45 ($) Notional income before tax $127,902 $127,902 $127,902 Less: tax payable (34,949) (34.949) (32,521) Notional annual income after tax $92,953 $92,953 $95,381 Notional weekly income after tax $1,780.72 $1,780.72 $1,827.23 Number of years 1.00 1.00 21.38 5% discount multiple 50.89 51.03 692.59 Subtotal $90,619 $90,862 $1,265,518 Number of years deferred in the future - 1.00 2.00 5% deferred multiplier 1.000 0.952 0.907 Lump sum present value of weekly earnings for period $90,619 $86,538 $1,147,785 Lump sum present value of notional future weekly income as at 30 June 2022 $1,324,942

[40]

Plaintiff's residual earning capacity: available occupations and whether plaintiff can work full time

The defendant contends that the plaintiff retains all, or substantially all of his pre-accident earning capacity. In this regard the defendant relied on two reports of Ms Claire Hurley, a vocational assessor, dated 4 May 2021 and 28 October 2022. The Gwynne report is also relied upon to calculate future economic loss and includes a calculation of residual earning capacity. I have not accepted the premise of Mr Gwynne's assessment.
In her reports, Ms Hurley expressed the following views: 1. Based on the views of Dr Robin Mitchell, she saw no reason that the plaintiff could not continue to work full time as a jeweller. 2. With some modification to his work practices, the plaintiff would be able to continue his pre-accident role as a jeweller and jewellery designer, 3. The plaintiff has the capacity, notwithstanding his current restrictions, to work as a jeweller, jewellery designer or retail manager of a jewellery store. She states: With persistent job seeking, he would likely secure a role as a Sales and Business Development Manager. He could access (sic) Advertising Manager (Jewellery) on a part time or contracted basis. If he was to obtain a Certificate IV Training and Assessment, he would be highly employable as a Training & Development Professional. 1. Because the plaintiff could continue to work as a jeweller, he would be able to earn his pre-accident wages. Further he could earn $85.00 per hour in a teaching role if he obtained his training Certificate IV.
Ms Hurley met with the plaintiff in April 2021 but did not obtain his comments in respect of her proposed conclusions as to the vocations he had the capacity to perform. When they were put to him in cross examination, he gave the following evidence: 1. He was limited in his capacity to perform work as a jeweller or in running his business in the matter set out above and generally could only work for limited periods, requiring substantial breaks. He was unable to work at the same speed and efficiency as he had pre-accident. 2. He accepted that he still had skills as a jewellery designer. He accepted that those skills were potentially valuable. The plaintiff continued, however, that the process of design and manufacture were intimately linked such that he, like all high end designers, designed to his own manufacturing capacity. He doubted that other jewellers could manufacture his designs. 3. He did not accept that there was a market for separate design of high end jewellery in any event. In his experience, high end jewellers required designers who were also manufacturers and worked on a full time employment basis rather than contractors. 4. The plaintiff accepted that he understood the jewellery market, that he understood jewellery products and their components and that he had all the skills necessary to run a jewellery business on his own account or as a manager on behalf of someone else. 5. The plaintiff was not aware of the existence of any actual opportunities to manage a high end jewellery retail outlet, such as Tiffany's. His view that most smaller operations were managed by their proprietors and staffed by them or middle aged female sales employees who were not jewellers. He estimated that seed capital in the range of $3.5 to 4 million was required to establish a retail outlet, which monies he did not have and did not believe he could raise. 6. The plaintiff did not see any prospect of providing in house training for jewellery manufacturers. While he had provided some supervision and training to employees during his period at Cerrone's, training and instruction could not be separated from the ability to demonstrate and his level of incapacity prevented him from being able to demonstrate his unique techniques and designs. 7. The plaintiff does not have a Certificate IV in Training and did not commit to allocating the time and resources to obtain such a Certificate. There was no evidence as to the time or cost involved in obtaining such a Certificate or the proximity of institutions where the plaintiff could enrol in any such course near his home in Minden.
It does not follow that simply because an individual has a physical or mental ability to undertake certain tasks, he, she or they retains a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all of his, her or their characteristics, in the labour market. Where a person, such as the plaintiff, has been engaged in the same skilled occupation for his, her or their whole working life, and that occupation is no longer available as a result of the injury, 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: Nominal Defendant v Livaja [2011] NSWCA 121. The practical assessment must also take into account the geographical area in which it is reasonable for the plaintiff to seek work: Mead v Kerney [2012] NSWCA 215.
Dealing first with the occupations that Ms Hurley considers the plaintiff capable of performing, I agree that the plaintiff retains skills and the capacity to work as a jeweller, jewellery designer or retail manager of a retail jewellery store. In respect of the work of a jeweller, the plaintiff is constrained by his ability to remain sedentary for extended periods, limits as to the use of his thumb and in being able to exert force or pressure through his hand and body due to the physical injuries he has suffered. But I accept that at some level he still has the capacity to work as a jeweller. Of the three relevant identified occupations, however, that of a jeweller is the most problematic.
Dr Mitchell expressed the view, adopted by Ms Hurley, that the plaintiff had a current capacity to work full time provided the work did not aggravate any of the reported symptoms and that certain precautions were taken. Those precautions included avoiding any sustained, forceful or awkward left hand gripping actions involving the thumb by ensuring frequent "micropause breaks" whenever physically active to interrupt the development of soft tissue tightness that could reduce normal blood flow and result in fatigue symptoms developing. The plaintiff gave uncontradicted evidence, which I accept, that such locking or tightening of his hand had already occurred since the accident. The precautions also included avoiding any frequent manual handling in force beyond 5 kg and managing all physical activities below mid chest and close to the body trunk to avoid aggravating the neck and left shoulder.
The workarounds and precautions identified by Dr Mitchell appear to be impractical and unworkable. The plaintiff in his evidence stated that he tried several such workarounds but in the end they were unsuccessful. With particular reference to work as a jeweller, the nature of such work would place intolerable stresses on the plaintiff's thumb and the sedentary nature of the work would require him to take frequent and extended breaks, significantly constraining the hours in a week available to him to work either in the workshop or at his computer. The available hours would be considerably less than a normal full time week.
The videos of Mr Barboutis at work show not only the repeated use of his left thumb to pinch and grip but also drawing wire through a draw plate, requiring the use of force through the shoulders and arms to pull the wire through a small aperture to make it thinner. The apparent force appeared considerable but it is impossible to tell whether it is less or more than 5 kg.
The plaintiff accepted in cross examination that to a degree he could work as a jewellery designer and that his skills in this regard were well honed. Although the plaintiff baulks at the prospect of working for certain mass market jewellers, he has considerable knowledge of the industry, including price points and consumer behaviour. I consider he has the skills and knowledge to manage a retail jewellery outlet either on his own account or on behalf of an employer. The plaintiff does not have the qualification to teach and, although he has had some experience supervising and training other jewellers, I accept that his physical restrictions in being able to perform the work of a jeweller would preclude him from pursuing employment in that role.
As to Ms Hurley's view that the plaintiff is capable of working full time in any of the identified occupations (jeweller, jewellery designer or manager of a retail outlet), I consider that the evidence is to the contrary. The plaintiff has consistently stated, and in his oral evidence was firm that he is physically constrained by the injuries to his hand, neck, back and shoulder from undertaking any role that requires him to sit or stand for extended periods. In order to work on a full time basis in any of the occupations identified by Ms Hurley, the plaintiff would be required to exceed the physical limitations that I accept he has established.
As to how long the plaintiff could work productively in a week, he gave the following evidence: Did you have a program that was sort of the best you've managed to find? A. The best I could do is, say, work Monday morning on the tools and then rest all day, virtually all day the next day and then after my son goes to bed the following day, then I can do some work on the computer and I seem to be fairly all right to be on there, but then that kind of makes things difficult for the next day to do anything so I have to wait another day and then hop on the tools in the morning the next day after that. Q. In terms of the impact on your productivity, let's take a standard type of solitaire engagement ring. A. Mm-hmm. Q. Before you had your accident, how long would it take you to manufacture a standard solitaire engagement ring? A. If it was a standard four-claw solitaire ring starting from an ingot of gold, so just a bar of gold, from start to finish, three-and-a-half to four hours. Q. Working with the limitations that you've described, how many days of an hour to an hour-and-a-half would it take you to achieve the same output? A. It would probably take me seven to nine days to do the same, because it - I can't work as fast either. Q. Is it as simple as putting a job down and then just picking it up and continuing on the next day or do you end up having to do more preparatory work when you pick it up again? A. Yeah, there's - it's not so - not as easy as just picking it up the next day.
In my view, the plaintiff is unable to work on a full time basis in any of the occupations identified by Ms Hurley. On the basis of the above evidence I estimate that the plaintiff could work up to 10 hours per week in any of them. To the extent he could work those hours as a jeweller, the value of his work would be further diminished by the lack of efficiency his injuries impose on his work productivity.

[41]

Plaintiff's residual earning capacity: relevant labour market

Ms Hurley examined the labour market for jewellers, jewellery designers and retail managers (Jewellery) in the Brookvale/Northern Beaches region, where the plaintiff still lived at the time of Ms Hurley's first report. When the plaintiff moved to Minden, that evidence became largely redundant and much was excluded on other bases in any event.
The plaintiff cannot be criticised for moving his young family to Minden. The geographic area in which it is reasonable for him to seek work is based there.
Some general evidence as to job market availability on a national basis was admitted but was at such a high level of generality that I did not derive any assistance from it. Ms Hurley was unable to provide statistics on national average weekly pay for jewellers or jewellery designers. Ms Hurley did provide wage information for Retail Managers (Jewellery) in the sum of $1,440 gross per week but the job market availability material was unhelpful and did not assist in establishing the availability of work managing a retail jewellery outlet in some location geographically close enough to Minden for it to be reasonable for the plaintiff to seek work there.
In the absence of any evidence as to either the availability of work in the geographical it is impossible to know what work may have been available, what the plaintiff's prospects would be or how that might be remunerated. It is by no means established that it would be possible for the plaintiff to obtain employment as a part time manager of a retail outlet within a reasonable distance of his home, working approximately 10 hours per week.
The defendant submits that the geographic proximity of Ipswich can be relied on to establish that a relevant market for the plaintiff's skills exist, "albeit lacking more specific detail". There was no evidence of the number of jewellers in or around Ipswich, nor was there any evidence as to the availability of design work, the prospect that the plaintiff could trade in and around Ipswich as he did in Wagga Wagga between 2003 and 2005 or that he could trade on his own account as a jeweller or designer based in Minden.
On the other hand, in Ms Hurley's second report, she brought evidence of ANZSCO awards for jewellers ($24.76 per hour), jewellery designers ($24.76 per hour), retail managers ($24.76 per hour) and training and development professionals ($52.86 per hour). It may be noted that the award rates for the three relevant occupations are the same.
The plaintiff does not submit that he has no residual earning capacity. He submits that his residual capacity ought be expressed as a percentage of an ordinary working week, being Dr Dias' assessment of 25%, and applied to Ms Hurley's figures, yielding a residual earning capacity of $200 net per week. Alternatively, the plaintiff submits, the Court could take a more conservative approach and allow $400 net per week as residual earning capacity.
In the circumstances, I am prepared to infer that the plaintiff's admitted knowledge and skills relevant to managing a jewellery retail outlet and that it is likely that such skills were sufficiently generic for there to be a relevant market for them within a reasonable distance of the plaintiff's home in Minden.
In the absence of any evidence as to market rates of remuneration, the only evidence before me is the award. Allowing an hourly rate of approximately $25.00 per hour for a working week of 10 hours, I have determined the plaintiff's residual earning capacity to be $250.00 per week.
Accordingly I find that the plaintiff's future economic loss, being a loss of earning capacity is to be calculated as follows: 1. The calculation by Mr Kahler of the present value of the plaintiff's nominal income as set out in the table at paragraph 215 is to be updated to take account of the passage of time since Mr Kahler performed his calculations in May 2022; 2. The present value of a residual earning capacity of $250 per week over the plaintiff's working life to age 67 is to be calculated and subtracted from the nominal income so identified; 3. A further deduction of 15% for the vicissitudes of life is to be applied.

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Judgment (43 paragraphs)

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