Clapp by his tutor Hilton v Brady

District Court of NSW|2018-05-09|Before: Mr J

The plaintiff's claim for damages for personal injury

The plaintiff, by statement of claim filed on 30 March 2015, brings proceedings for damages for injuries suffered while he was a passenger in a motor vehicle travelling along Coorabell Road near Federal in the State of New South Wales. The car collided with a tree following the driver swerving to avoid a collision with an oncoming truck.
Although both the Nominal Defendant and the driver of the vehicle are named as defendants, liability between the defendants (including the cross-claims between them) has been resolved, on the basis that the assessment of damages in relation to the plaintiff will simply be awarded against "the defendants". Throughout this judgment the words "the defendants" are used on some occasions and the name of the driver (the first defendant) is used when appropriate. I have nevertheless included the names of the solicitors and counsel for the second defendant in the appearances for this judgment, in the event that this is necessary for costs assessment purposes.
The issues for determination relate only to the plaintiff's claim for damages. He suffered significant emotional distress as well as physical injuries and the difficulties his solicitor had in obtaining instructions were such that a tutor was appointed. More recent medical evidence indicates that a tutor is no longer necessary and, by agreement between the parties, I have been asked to make orders concerning the removal of the tutor, in light of the most recent medical evidence, and I have done so, in orders made separately to this judgment.

The plaintiff's injuries and disabilities

The plaintiff's injuries and disabilities have been particularised as follows: "PARTICULARS OF INJURIES RECEIVED 1. Fracture of the right ankle. 2. Injury to the right shoulder. 3. Injury to the cervical spine. 4. Fracture of the ribs. 5. Fracture of the right orbit. 6. Fracture of the nasal bones. 7. Dental fractures. 8. Visual impairment. 9. Psychological/psychiatric injury. 10. Otologic injuries. 11. Fracture of the tibia and fibula. 12. Injury to the temporomandibular joint. 13. Loss of teeth. 14. General pain and discomfort. 15. Aggravation of injury due to instability of right leg and chronic back pain. PARTICULARS OF CONTINUING DISABILITIES 1. Pain and discomfort in the right ankle. 2. Restriction of movement of the right ankle. 3. Risk of arthritic changes in the right ankle. 4. Pain and discomfort in the right shoulder. 5. Restriction of movement in the right shoulder. 6. Pain and discomfort in the cervical spine. 7. Restriction of movement in the cervical spine. 8. Pain and discomfort in the ribs. 9. Pain and discomfort in deep breathing. 10. Pain and discomfort in the right orbit. 11. Visual impairment. 12. Pain and discomfort in the nose. 13. Restriction on breathing. 14. Dental disabilities including pain and discomfort and the need to undergo future dental treatment. 15. Double vision or blurred vision. 16. Depression. 17. Anxiety disorder. 18. Post-traumatic stress disorder. 19. Headaches. 20. Pain and discomfort when walking, running or jumping. 21. Spasm of the legs. 22. Pain and discomfort in the legs. 23. Reduced ability to use stairs. 24. Bilateral haemopneumothoraces. 25. Scarring. 26. Frustration. 27. Sleeplessness. 28. Reduced ability to engage in social and/or recreational activities. 29. Reduced ability to perform work related activities. 30. Reduced ability to perform domestic activities. 31. Limping with risk of future injury including discomfort into back and hips. 32. Swelling of the ankle. 33. Embarrassment by loss of teeth. 34. Reduced movement of the temporomandibular joint. 35. Pain and discomfort in the temporomandibular joint."
Before considering the medical evidence in relation to the plaintiff's injuries and disabilities, I first set out the evidence in relation to the plaintiff's pre-accident medical condition.

The plaintiff's state of health prior to the accident

The plaintiff told Dr Bodel (Exhibit A, pp. 116 and 127) that there had been no pre-existing pathology in any of the injured areas and that he had no pre-existing health conditions.
The plaintiff, prior to the accident was not only able to work full-time but to indulge in many active sports, including sailing, boating, fishing, cars and occasionally snow skiing (Exhibit A, p. 127). He also carried out volunteer duties in football coaching. His general picture of physical health was that of a busy and active man running his own business (a car yard which he had run for approximately nine months prior to the accident) where he worked long hours and managed approximately five members of staff.
The plaintiff did, however, have a long history of contact with mental health professionals. Some occurred very long ago; there were difficulties with his first wife and, in approximately 1988, he was incarcerated for a long period of time in relation to a drug supply charge. It was at this relatively early stage of his adult working life that he consulted a psychologist in Neutral Bay. He improved, but then made contact again with a mental health centre approximately a decade prior to the accident, for general advice. Over this period he took antidepressants "on and off" (Exhibit A, p. 140) prior to the motor vehicle accident. Some of the reasons for this related to childhood experiences. In addition, in the years shortly before the accident, he had been asked to give evidence in Australian Crime Commission hearings which he found to be stressful, and he consulted at least one psychiatrist during this period.
The plaintiff had moved to the Byron Bay area prior to the accident "to get away from the people he had associated with" after the Crime Commission investigation was completed. He believed at that time that, because he liked the country and was happy where he was living, he was psychologically and emotionally well.
Dr Allnutt, while making these observations, also notes: "At the time of the accident he was drinking in a binge-like pattern. He would go for a number of weeks without drinking heavily and then might drink heavily, up to 10 beers a night. However, he said he was not generally a big drinker. In the time leading up to the accident he was using cocaine about twice a week to once a month recreationally and socially, depending on its availability. He had been using cocaine like this since about the 1980s, on and off. He had not abused any other substances, although he had experimented with cannabis in his adolescence, but not after that."
The above account was the history given by the plaintiff to Dr Allnutt. Senior Counsel for the defendants submits that "none of this history is correct" (submissions paragraph 6) as the plaintiff acknowledged in cross-examination that he was having significant problems with depression in the months and years before this accident, which continued despite the plaintiff's move to the country.
He said at T 53 about his consultation with Mr Riordan, a psychologist: "Q. That's your handwriting, isn't it? A. I believe so. Q. Half way down it says, (b), describe your concerns as best you can, see that? A. Yep. Q. You've written in, "To get myself going each day"? A. Yep. Q. Pausing there, Mr Clapp, you'd gone to see Mr Riordan nine months before this motor vehicle accident because you were suffering very significant depression, that's correct, isn't it? A. Perhaps it was. Q. There's no perhaps about it, Mr Clapp, was it, you were suffering from depression significant enough to take you to see Mr Riordan, that's right, isn't it? A. I think I said somewhere along the journey that I'm not a ‑ I didn't understand what depression is and I find it hard to accept the fact that what it is. I do accept it now and I would say looking at that that's probably I was looking for help, yes. Q. At the same time as you were attending upon Mr Riordan you were also seeking treatment from your GP at the Bangalow Medical Centre, is that right? A. If the ‑ if that's there, yes." (T 53-54)
The plaintiff agreed that he was prescribed an antidepressant, Lexapro.
The plaintiff was asked about the questionnaire he had filled out nine months before the accident which indicated that he was suffering from a severe depression: "Q. What I want to suggest to you, Mr Clapp, is that at the time that you filled this questionnaire in, nine months before this motor vehicle accident, you were suffering from a severe depression. Do you agree with that? A. According ‑ yep, okay. Q. You had significant problems motivating yourself in life, that right? A. Yep. Q. That you'd lost interest in life? A. Yep. Q. And thought that you were not worthwhile? A. (No verbal reply) Q. Sorry, sir, you've got to say something, it's being recorded? A. Sorry. Well I've just ‑ it's there. I wouldn't ‑ I don't. Q. You continued being prescribed Lexapro‑‑ A. Yep. Q. ‑‑throughout 2012, didn't you? A. Correct. Q. Were you still taking it at the time this accident occurred in early 2013? A. If I was on it I would have been, yep." (T 55-56)
Mr Clapp was also asked about the circumstances in which he had given evidence to the contrary to Dr Allnutt, as well as omitting evidence about the significant amounts of cocaine he had been taking over this period, a habit which he continued after his accident: "Q. It's true, is it not, that for the ten months leading up to seeing Dr Allnutt, in August 2015, you had not needed to see a mental health professional? A. If I hadn't seen anybody it's true. Q. Can I ask you this Mr Clapp‑‑ A. May I say medication was on though, that's helped me. Q. It also records this, Dr Allnutt in his report at page 5 that you were snorting about three to 4 grams of cocaine a day until six months before seeing Dr Allnutt in August 15, can I ask you sir, where did you get the money from? A. I've got money, what, you don't think I didn't work? Do you know why I did it? … Q. How much were you spending when you were using that amount of cocaine? A. I don't know. Q. Because your case here is since the time of this motor vehicle accident you have suffered a loss of income, that's right isn't it? A. Correct. Q. Was the money that you were earning from the business used to support your cocaine use? A. There is a reason for it and if you want to hear it I'll tell you, but you probably don't. Q. No, I wonder if you could answer my question? A. Yes. Yes, I supported my cocaine; it wasn't a habit. Q. I didn't use the word "habit"? A. I didn't want to be here. I drank‑‑ Q. How much did 1 gram of cocaine cost you back in 2015 sir? A. Three ‑ $300. Q. And you told the doctor that you were using, you agreed, three to 4 grams of cocaine a day, up until the beginning of 2015? A. I ‑ it may have been a little bit, you know, I'm not sure, but yes. Q. So, 1,000 to $1,200 per day? A. Yep. Q. Seven days a week? A. Yep. Q. Over $8,000 a week you were spending on it? A. Yep. Q. And that money was coming from your business, is that right? A. No, I had money already, saved money. Q. Some of the money was coming from your business? A. I don't think so. Q. Didn't you tell her Honour before when I asked you did some of the money come from the business‑‑ A. Well, ‑ yeah, okay, I'm just, I'm not besides where it came, but I did have money." (T 58-59)
Similarly, the plaintiff told Dr Virgona (Exhibit 1, p. 30) that the first time he had had antidepressants was 10 to 15 years ago because he was "trying to find who I was as a person". He put his problems down to childhood issues rather than any ongoing problem. He acknowledged taking Lexapro before the accident but "not all the time" (Exhibit 1, p. 30). He denied ever being addicted to drugs or alcohol (Exhibit 1, p. 31). He acknowledged he spent three years in prison in relation to a drug charge, which he said resulted from "a very poor decision" (Exhibit 1, p. 32). He told Dr Virgona he left Sydney prior to the accident to get away from "guilt by association" after an operation was conducted by police for four years which "has nothing to do with him" (Exhibit 1, p. 32). Dr Virgona noted that this was more or less the same history given to Dr Allnutt (T 39).
However, Mr Riordan's notes of 14 June 2012 (helpfully summarised by Dr Virgona in Exhibit 1, pp. 49-50) paint a picture of a man under severe stress, largely as a result of the investigation by the Australian Crime Commission and ongoing tax difficulties, as do the records of Ms McLisky and Dr Maehl (Exhibit 1, pp. 50-51).

Other post-accident stressors

As is set out in more detail below, the plaintiff suffered other stressors following the accident, including the death of his father, the death of a young man who was a "surrogate son" and, perhaps most importantly, the loss of his business due to flooding (Exhibit 1, p. 53).

Conclusions concerning the plaintiff's credibility

The principal issue in relation to the plaintiff's credibility is the lack of candour concerning his past psychiatrist history. Senior Counsel for the plaintiff pointed to the fact that during the course of his evidence in chief, the plaintiff did not give evidence of having any pre-accident psychiatric or psychological problems; I note there is no reference to prior treatment in his chronology as well. Senior Counsel for the defendants put to me that I should find that the plaintiff was seeking to give the impression of a man who had only some minor psychological problems prior to the accident but that he did not have any of those problems in the months or years prior to the accident when this was not the case.
However, the court must not be too judgmental where a plaintiff has exaggerated or simply put his or her case more colourfully than another person might do. In Martin v Minister for Health [2016] WADC 15, Bowden DCJ stated at [54]-[55]: "[54] It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [35]. [55] The fact that a witness tells a lie or a series of lies or exaggerates is not a basis for rejection of their evidence without careful investigation: McGlen-McLeod v Galloway [2011] NSWDC 163 (Gibson DCJ)."
Inconsistencies in medical histories are similarly common. The Court of Appeal has on many occasions warned trial judges not to be unduly concerned by such inconsistencies (see for example Mason v Demasi [2009] NSWCA 227). A commonly occurring problem is the failure of the plaintiff's solicitors to put the plaintiff's full medical history to his or her own doctors, which can be a serious difficulty for the reasons explained by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69]. The plaintiff's medical history is then taken by these experts from the instructing letter and the plaintiff is blamed for the result.
Finally, adverse findings as to credit, even if made, may play very little role in relation to the assessment of damages. In Smith v Alone (2017) 82 MVR 309, the plaintiff's pre-accident psychiatric problems were so severe, due to chronic alcoholism and a series of criminal convictions (one of which was for deliberately driving his car into a crowd of persons at a hotel, for which he had been charged with attempted murder), that he had been certified unfit to work by Centrelink, but the issue of credit was not even referred to on appeal.
While I acknowledge the force of Senior Counsel for the defendant's submissions in relation to issues of credit arising from a party claiming damages seeking to minimise prior psychiatric or addiction-related or (as Mr Riordan noted) investigation-related problems, the reality is, as all of the above judgments evidence, that courts do not take the strict position advocated for by Senior Counsel for the defendant. Courts are aware that plaintiffs may exaggerate rather than minimise ongoing injuries and disabilities and seek to put the case in the best light.
Such evidence needs to be viewed carefully, but it should not necessarily result in an adverse credit finding. This includes evidence such as the plaintiff's concession that he is in fact able to walk his dog on the beach, made after he had been the subject of surveillance film showing this even occurring (T 63), and contrary to his statements to the contrary to medical practitioners.
Other issues upon which the plaintiff does not fare so well for reasons of credit include his explanation of his financial circumstances. For example, the plaintiff's statement that he could not afford to see the physiotherapist needs to be seen in the light of the substantial amount of money he was spending on cocaine and his purchase of a bed and breakfast property for a substantial sum. Exaggeration of pain by a man with serious injuries is understandable, but failure to disclose financial circumstances frankly in relation to claims of past and future economic loss claims does not fit into the same category.

The plaintiff's injuries and disabilities following the accident

The defendants concede that for the purposes of s 131 Motor Accidents Compensation Act 1999 (NSW) the plaintiff exceeds the relevant threshold for physical injuries and is entitled to damages for non-economic loss, including damages for psychiatric injury. I set out the relevant reports as follows.

Reports of Dr Bodel

Dr Bodel, in his report of 19 September 2014, noted the right shoulder and knee injuries, and opined that the plaintiff will need to consider further surgery on his right ankle in the form of an ankle fusion within seven to ten years. He considered the plaintiff was fit for permanently modified work indefinitely (Exhibit A, p. 105), but that he had significant limitations on domestic and recreational activities.
He recommended the following: 1. analgesic medication of a non-prescription type; 2. "intermittent physiotherapy" (Exhibit A, p. 106) on an as-needs basis for 6 to 8 visits per year.
In his subsequent report of 15 March 2017, he noted that the plaintiff had managed to return to work in September 2016. In this report he also notes the need for future surgery as being for ankle joint replacement, with a requirement for such surgery in five to seven years, as opposed to the ankle fusion within seven to ten years. This is in accordance with the opinion of Dr Won, as Dr Bodel notes in Exhibit A at p. 113. He does not, however, rule out the possibility of a fusion (Exhibit A, p. 113, paragraph 4).
In practical terms, given the plaintiff's history, I prefer to err on the side of caution and to assume that the more significant of these operations, the cost of which is $35,000 to $40,000, is the one which is necessary.

Dr Buckley

Dr Buckley is an expert in rehabilitation medicine. He concurred with the views of Dr Bodel that the plaintiff requires six physiotherapy sessions per annum (Exhibit A, p. 132). This is put on the basis of six treatments annually being three treatments weekly for two weeks.
Dr Buckley considers the plaintiff would be unfit for heavy manual work where he is required to be on his feet for prolonged periods, but added that "Mr Clapp is physically fit for a return to work as a retail car salesman". He also noted the traumatic capsulitis of the right dominant shoulder, but did not consider this prevented a return to work as a retail car salesman.

Dr Lim

The defendants retained Dr Lim, an occupational physician, who agreed with Dr Bodel in relation to the plaintiff's right ankle surgery in the future, and also that the medical treatment and physiotherapy described by Dr Buckley was reasonable and necessary. I note there is some disagreement between Drs Lim and Buckley as to outdoor domestic maintenance, but Dr Lim defers this issue in favour of the advice of an occupational therapist.

Conclusions concerning the medical evidence

The medical evidence is consistent on all issues. The plaintiff has a significant disability in relation to his ankle. He was left with a gradually deteriorating ankle which will require either an ankle fusion, or, more probably, a replacement. While the plaintiff other physical injuries have resolved, he continues to have problems with the capsulitis in his shoulder, and I note Dr Bodel's findings on 19 September 2014 concerning mild generalised wasting in the shoulder girdle.
The plaintiff has additionally suffered a psychological or psychiatric injury of some seriousness. Dr Allnutt is of the view that plaintiff is manifesting a constellation of depressive and anxiety symptoms, the depressive symptoms being characterised by low mood, disturbed sleep, variable appetite, reduced energy and concentration difficulties as well as social withdrawal. He noted the plaintiff had longstanding problems and felt that this was a contribution to his current condition. Dr Virgona made similar findings.
The principal difficulty in making findings in relation to the contribution of the plaintiff's accident to the pre-existing psychiatric conditions and treatment is that a further problem occurred for the plaintiff after the accident. In March 2017, there were significant floods in the Lismore area. The street in which the plaintiff's car sales business was located was inundated and effectively destroyed. It was a devastating blow. Prior to this event, the plaintiff's condition had been improving.
The plaintiff had difficulty giving evidence about these events without breaking down, so rather than set out his evidence, I shall set out the summary prepared by Dr Allnutt at pp. 150(b) to 150(d) as follows: "Since he last saw me on 17 August 2015 he said thing had got more difficult as time went on. He got to a stage where he realised he had mental problems and he was struggling with dealing with situations, feeling emotionally overwhelmed and anxious. He saw a psychologist, "Sarah", but ended up in mental health care at Byron Bay Hospital. He was taken there by his wife and saw a psychiatrist. They saw him a few times and ten put him in "another part to see a lady for a period of time". He believed she was a mental health professional. She started him on Escitalopram and Axit; that stabilised him a bit. Then he said he also saw a psychologist but could not afford to continue, so stopped. He believed this might have been at Byron Bay Hospital. He then went to a New South Wales mental health service and saw Lisa there, and had continued to see her since. I found obtaining information from your client somewhat difficult. He appeared to be unclear about dates and initially seemed relatively disengaged (I noted that he had left home at 5 o'clock that morning and had travelled, and complained of being tired). On his suggestion and with my agreement, we phoned his wife on the speaker phone and at this stage ad her listen in to the interview. His wife clarified that she took him to Byron Bay Hospital around this time last year. There had been a flood and he had become suicidal. He got a letter from Wyatts saying there were problems with representing him because he had lost confidence in them. His wife said at that stage he was depressed; he was in bed and she was unsure if he was going to kill himself at time [sic]. He was angry and irritable, and she took him to hospital. Before the flood he had been seeing Sarah Golding, a psychologist, and saw her half a dozen times over a couple of months. Prior to that he had seen someone else but was unhappy with this person and then tried to find the right person. He had also seen somebody called "Karen", who went overseas. His wife said at the time of the flood he was taking Lexapro (Escitalopram) and was seeing Sarah. Your client said he was "okay" at that time. His wife said he was ambivalent and procrastinating in his decisions, but she thought his mental state was improving. He was having good weeks and bad. When he had a bad week, he would go to bed and be socially withdrawn, would be irritable and his sleep would be "terrible". He would have insomnia and lie awake. She could not recall him complaining of nightmares, but noted his energy was low, he was flat and could not be bothered to get out of bed at times. His motivation fluctuated depending on what was happening. If something negative happened, he would become more withdrawn. His concentration fluctuated depending on his situation. To her it seemed that if he was interested he could concentrate, but otherwise not. He appeared not to be taking information in from the TV. He used to get anxious about legal matters and the more questions Wyatts asked him, the more anxious he seemed to get. He was avoidant of making decisions and being social. She believed there had been an improvement because he was having to get up and go to work every day. He had a new manager who picked him up and took him to work, but at home at night he would be withdrawn. She thought his performance at work varied, depending on stress. At this point I continued to interview her husband. He said at the time of the flood he felt "ordinary". When I asked him what he meant by that, he said he was struggling to put things together, such as making decisions and being a father and husband. He had ongoing pain in his leg; he had had an operation in 2016 and said they took the metal out of his body, which made a huge difference. This took away the pain and he stopped taking painkillers after that. At the time of the floor his mood was generally improving and he was starting to feel better about himself, but found that when working he needed to take days off. At the time of the flood he still was depressed, his sleep was poor and he would fall asleep at home while watching TV. His energy was such that he needed a nap in the afternoon. His nightmares had diminished. They were occurring about every two to three days in "runs"; then there would be nothing for six to eight weeks. His motivation and concentration were poor and he had difficulty focusing. He would read and then have to put it aside; he lost focus within a minute. He performed poorly as a business owner, in his view, because of poor decision-making and poor concentration. As a result, his business was declining. He relied increasingly on staff to perform business activities. He said he went through a period at the end of 2016 of waking up feeling he was trapped in a car. He would wake with palpitations, sweatiness and shortness of breath. Episodes like this would occur a few times a week when he was awake, then there would be nothing for two to three weeks. These episodes could be triggered by stressful situations. He was more irritable and short-tempered and was "rough" on his wife and son. He felt okay driving a car. He was avoiding people because at times it felt as if when he was with two or three people it was like 10 people asking him questions. If someone asked him questions about the car, he kept putting them off. He did not want contact with people. The flood happened in about March 2017. It was frightening, particularly the speed of the water and the inability to empty it out. It got to a point where it became unsafe (it was waist high). At the time he did not feel that frightened and said it was more a matter of disbelief about what had happened. He said, "I just had five years of the car happening [referring to the MVA and the results], and then all of a sudden this. Why did I deserve it?""
These were significant challenges to a man who was already struggling with his attempts to re-establish his business. They were added to when a friend he regarded as a surrogate son died by suicide: "About a year later, in April 2017 a friend whom he regarded as a surrogate son died by committing suicide. Another friend had died a year prior. After the flood somebody sent him a photo and for the next three months he could not go to work. He said, "I couldn't physically handle the thought of it". He did not engage with work significantly because he could not deal with it. His wife took him to hospital after his friend died and he was then started on Axit and followed up by Mental Health. They used to see him every day. He would talk with the Mental Health people and the pills helped with his sleep. They sent him to see "Lisa", who he believed he had been seeing for the past eight months. Since he last saw me there had been no medical problems. He still had a twitch in his feet and they were still painful, but had improved. He needed fewer pain=killers, saying "a bit of Endone now and again". He was not drinking alcohol or taking any illicit or recreational drugs. He closed his business in November 2017 because he could not operate after the floor damage. He had tried to open up again after the flood, but sold up. The business had no power for 13 weeks, the building was quarantined, and business was declining due to the flood. Then, about three to four weeks after the death of his friend, Wyatts said they would not represent him. Since then his brother had been his tutor. He needed a tutor because they Wyatts felt he had no confidence in them."
This helpful summary explains how it is that the plaintiff's psychological condition had developed to such an extent that his solicitors had a tutor appointed.
All of this evidence points to the plaintiff suffering from a series of significant blows the cumulative effect of which prevented him from functioning even to the extent of giving his solicitors instructions. Dr Allnutt described his condition as at the date of his 22 March 2018 report as suffering from a major depressive episode and residual symptoms of PTSD. Dr Virgona noted that Dr Allnutt had diagnosed a chronic adjustment disorder with depressed and anxious mood, a condition which differed only by degree. Dr Virgona went on to state: "For the same reasons as previously, I diagnose PTSD. Taking into consideration some recovery since the accident, the natural tendency for chronic mental conditions to fluctuate in severity, and the effect of treatment in 2014 and 2015, a diagnosis of PTSD at that time was in my view reasonable." (Exhibit A, p. 150(h))
He noted some amelioration of PTSD symptoms that following the flood there was: "… an aggravation of his depressive symptoms and he now manifests a major depressive disorder characterised by a depressed mood, weight gain, insomnia, difficulties with concentration, fatigue, a negative perception of himself, poor concentration, indecision, intermittent thoughts of death and reduced participation in usual activities, which has likely been partially treated with antidepressant medication." (Exhibit A, p. 150(h))
He recommended ongoing treatment in the form of fortnightly consultations for a period of six to twelve months with a psychologist.
He also recommended psychiatric involvement, given the persistence of symptoms despite the prescription of antidepressant medication. His general practitioner also needed to monitor his physical and mental state.
Dr Virgona confirmed that the accident is a direct cause of the plaintiff's anxiety symptoms and an indirect cause of his depressive symptoms, although noting the predisposition to depression.
All the evidence points to ongoing psychiatric problems of some severity. Ongoing treatment from a psychiatrist (and possibly also a psychologist) together with follow up from the plaintiff's general practitioner is required. Antidepressant medication should also be prescribed for the foreseeable future.
While I note that it was the flood and the death of his young friend which led to the plaintiff being taken to hospital and followed up with a mental health plan, the plaintiff was particularly vulnerable to these events. He may have been "on an upward trajectory" prior to this date (defendant's submissions paragraph 36), but the severity of his response is, in my view, inextricably intertwined with the impact of the circumstances of the plaintiff's accident. While some allowance must be made for the flood and its consequences, and other events unrelated to the accident (such as the death of the plaintiff's father and friend), as well as having some regard to the plaintiff's psychiatric history, a significant portion of his current problems were either triggered or amplified by events the subject of this claim.
However, the plaintiff's evidence was not all gloomy. Both his evidence and his wife's evidence painted a picture of a man who, although frequently depressed and having at times to struggle with mood fluctuations and sleep difficulties, had been able to enter into a project with his wife to purchase a property for approximately $1.2 million to run as a bed and breakfast. He was still able to go for walks on the beach with his dog and to participate in family events. The plaintiff also described with pride the amount of work performed by his wife in renovating the property, becoming at times quite animated and enthusiastic in his description of the property which contained several acres of virgin rainforest.
The plaintiff's stable home and happy marriage has clearly played an important role in his recovering from the trauma of being trapped in the motor vehicle and fearing he was about to die, just as it has aided him in coping with the other disasters which have befallen him since then, most notably the flooding and destruction of his business.
Having made these general observations, I next consider the parties' schedules of damages.

Plaintiff's Schedule of Damages Non-Economic Loss $250,000.00 Past Out of Pocket Expenses 45,404.39 Costs of shoes 1,188.30 Future Out of Pocket Expenses Cost of right ankle joint replacement $35,000.00 - $40,000.00 = $37,500.00 deferred for 7 years 26,666.25 Attendance upon general practitioners twice per annum at $70.00 1,984.68 Attendance upon orthopaedic surgeon once per annum at $160.00 ($85.00) 1,202.61 Physiotherapy at $87.00 x once per week = $64,188.60 however discounted for the right ankle joint replacement by 50% 32,094.30 Cost of mediation at $33.00 per month = $7.61 per week 5,614.65 Attendance upon psychiatrist - 13 sessions per annum for 1 year 4,550.00 2 Osseo integrated implants at $4,500.00 each with a possibility of one replacement in 15 years' time 11,164.50 83,276.99 Past Economic Loss 100,000.00 Based on a diminution in earning capacity on the open labour market for 267 weeks Superannuation on Past Economic Loss 11,000.00 Future Economic Loss 120,000.00 Superannuation on Future Economic Loss 13,200.00 Past Domestic Assistance 33,200.00 From March 2015 = 166 weeks at $200.00 per week Future Domestic Assistance 73,780.00 At $200.00 per week allowing half

Defendants' schedule of damages HEAD OF DAMAGE AMOUNT Non-economic loss $150,000.00 Past economic loss (cushion) 20,000.00 Past loss of superannuation 0.00 Future economic loss 0.00 Future loss of superannuation 0.00 Past care 0.00 Future care (cushion) 5,000.00 Past treatment expenses 45,404.39 Future treatment expenses 25,000.00 TOTAL $245,404.39

Non-economic loss

The plaintiff's demeanour in the witness box and his responses to questions concerning his reasons for distress suggest that the litigation process has had a particular impact upon him, in that he has had to struggle with feelings of unresolved anger at the refusal of the insurance company to pay for medical treatment, which he stated he could not individually afford. He also appears to have become mistrustful of his solicitors, whom he said explained their failure to do anything in the first year after the accident was because of legislative requirements. It is easy to see why his solicitors took the view that the appointment of a tutor was necessary.
However, the plaintiff, particularly in unguarded moments in the witness box, demonstrated a strength of purpose in relation to his future life, indicating that a more positive view can be taken of his future than that taken by Dr Allnutt.
The plaintiff's major physical injury has been to his ankle, and has responded to surgery. In the future he will come to further surgery. He walks with a limp and is in pain. However, he is still able to perform tasks such as walking his dog along the beach on the sand. It is the heavier tasks which are a problem to him.
It is always helpful when the parties give sensible indications of the amount of damages a court is likely to award. One factor is his age, which is 64, but great caution should be exercised concerning this issue. In Varga v Galea [2011] NSWCA 76 at [72]-[74] McColl JA (with whom Beazley P and Handley AJA agreed) stated as follows: [72] Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). [73] Age, however, is only one of the numerous matters the court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: non-economic loss means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. [74] The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71-72) remain cogent: "Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables."
I take into account not only the plaintiff's age but also his prior active lifestyle and the impact this accident had upon him both physically and mentally.
While I am of the view that $250,000 is too high an amount to place on the plaintiff's non-economic loss, I am satisfied that a substantial sum should be awarded. I accordingly propose to award the sum of $200,000 for non-economic loss.

Past and future out-of-pocket expenses

All but one of the expenses set out for past and future out-of-pocket expenses on behalf of the plaintiff are reasonable, in my opinion.
The sole exception is the claim for physiotherapy which is not supported by any of the medical practitioners, as the reports of Dr Bodel and Dr Buckley make clear.
The plaintiff has had very little physiotherapy. For the reasons previously outlined, I do not accept his claim that he was unable to afford to do so, nor do I accept his lay opinion that he would feel better if he did have physiotherapy.
Accordingly, while I will award $46,592.69 for past out-of-pocket expenses (which figure includes the costs of shoes claimed by the plaintiff), I propose to award only a cushion for physiotherapy in the future, having regard to the right ankle joint replacement in five to seven years. In those circumstances, the cushion of $25,000 allowed for by the defendants is a better guide to future treatment costs. I consider this estimate is nevertheless too low and propose to increase it to $35,000 to allow for contingencies such as further physiotherapy and medication if the plaintiff suffers a fall, or his recovery from surgery is not as expected.

Past and future economic loss

The plaintiff no longer relies upon a report of Mr Michael Lee or his two supplementary additional updates. Instead the plaintiff claims a loss of earning capacity or the capacity to earn an income in a manner productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347).
Mr Andrews draws to my attention the observations of McColl JA in Sretenovic v Reed [2009] NSWCA 280 at [80] of McColl JA as follows: "80. Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340(at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). 81. It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the Court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future"."
The reasons for a buffer may be summarised as follows: 1. The plaintiff's tax returns show that the plaintiff has been receiving director's fees of $22,500, and no superannuation. The plaintiff is currently 64 years of age and will turn 65 in September 2018. He has no prior history of ever having superannuation. While Mr Andrews pointed to some early employment in positions where he might have been eligible, these seem to pre-date the introduction of superannuation registration in 1992. 2. The plaintiff's evidence was that he intended to retire when he turned 65 and he hoped to pass on the business so that he would continue to receive director's fees of $1,000 per week. How this was possible in a business where he was currently earning less than half of this sum is unexplained.
The difficulty that the plaintiff has is one which is not uncommon in personal injury, namely that his net salary as a director was $330 per week prior to his business being flooded. In addition, the business records showed that the business continued to generate profit after the plaintiff's accident and it was only when the flood wiped the business out that the business ceased to be profitable.
Nor can I assume that the plaintiff is likely to receive the pension at the age of 65 because the pension is asset-tested and the plaintiff and his wife have set up a bed and breakfast business which commenced advertising for customers in 2017. While it was too early to tell if the business would be successful, Mr Andrews submitted, and I accept, that it is more likely than not that an asset-tested pension may not be available to the plaintiff (T 110-111).
Mr Lee's report suffers from the handicap that he had accepted without question the plaintiff's assertion that the number of cars sold had been reduced when in fact the financial records demonstrated to the contrary.
Ms Lindsay's report (Exhibit 1, pp. 60-97) makes it clear that the business was generating a great deal of gross profit, the precise whereabouts of which (in terms of being spent on overheads such as salaries and rent) was uncertain. In the words of Senior Counsel for the plaintiff, "What's left over we just don't know" (T 117).
Mr Lee did not identify any residual money in the business at all.
As a result, apart from knowing that the business simply ceased to exist after it was destroyed by the floods, I have no information capable of explaining what the profitability of the business was, and why those figures were unaffected by the plaintiff's accident and in fact increased.
Senior Counsel for the plaintiff also pointed to the likelihood of a man about to turn 65 having difficulty obtaining work on the north coast in relation to his prior history of working in wholesaling motor vehicles. While I must be cautious in drawing any such conclusions, there is no expert evidence to talk about the plaintiff's other opportunities of obtaining employment in the area. The most likely scenario is to assume that, the plaintiff and his wife having built up the business and started to advertise a bed and breakfast, this is the likely form of employment he will have in the future.
Clearly, some figure must be allowed for past economic loss to take into account that the plaintiff was unable to be employed in any position for a significant period after the accident. While he was able to return to work part-time, the length of time that he was away should be the subject of a past cushion.
The defendants make an allowance of $20,000 for past economic loss. In practical terms, that sum is very similar to the plaintiff's official annual income of $22,500 in director's fees. I propose to allow the defendants' assessment sum, namely $20,000, for past economic loss.

Future economic loss

I repeat the issues discussed above concerning past economic loss; quantification of future economic loss is even more difficult: 1. Unlike other similar future economic loss claims, such as Varga v Galea, there is no vocational report (see, more recently, Townsend v O'Donnell [2016] NSWCA 288, where both sides tendered vocational reports). 2. Senior counsel for the defendants notes that the plaintiff has elected to live in the country to avoid former bad associations with city persons, and to run a bed and breakfast there, both of which make his employment prospects difficult to assess. 3. The accountant's report is demonstrably wrong and has been largely abandoned. 4. The plaintiff turns 65 in September and gave evidence he hoped to retire at 65. 5. The alternate basis of loss of director's fees is, senior counsel for the defendants submits, little more than wishful thinking.
The plaintiff's figure of $120,000 is for the loss of director's fees of $1,000 per week for a period of time after the plaintiff retired (although I note that this figure would amount to a two year loss period), or alternatively, a general claim of loss of earning capacity.
The medical evidence supports the plaintiff being unable to work, including being able to work in his former source of employment, from which I infer that tasks of the kind he would be called upon if running a B&B could, at least in part, be performed by him. I acknowledge the force of the submissions by the defendants that the plaintiff lost his business because of the floods, not because of the accident.
The plaintiff has failed to discharge the onus of demonstrating in accordance with the Motor Accidents Compensation Act 1999 (NSW) that he has in fact suffered any loss.
In fact, all of the evidence points to the plaintiff having successfully changed his occupation to that of bed and breakfast proprietor, with the result that he will be able to carry on business of this sort, whether profitable or not, in the future. From the description given by the plaintiff and his wife of the premises and their location to beach and virgin bushland, all of the evidence points to the plaintiff suffering no economic loss in the future. While this business is only in its infancy, there is no evidence to suggest it will fail to produce an income stream comparable with that enjoyed by the plaintiff prior to the accident.
For the above reasons, no allowance should be made for future economic loss.

Past and future domestic assistance

Past domestic assistance is somewhat artificial in that, somewhat unusually, no claim is made prior to March 2015. While the plaintiff and his wife were living in rented premises at Bangalow, the outside maintenance was carried out by the landlord.
For the period from March 2015 to date, when the plaintiff and his wife have lived in the premises that were being renovated for the bed and breakfast, two problems emerge. The first is that the receipts in question commence in March 2017 in circumstances where maintenance of the grounds of this very large property, while it was being renovated and the degree to which this was in fact carried out, is unclear. The maintenance in question consists of claims for mowing and keeping the extensive grounds of the bed and breakfast mowed and weeded, which is 166 weeks at $200 per week. No receipts are provided.
The future domestic assistance claim is for half this sum on the basis that 50% of the premises are tenanted, and therefore this would be a tax deduction.
There is a degree of artificiality in all of this. The plaintiff is living in these premises because he wants to make money from a bed and breakfast set in extensive grounds. To deduct 50% on the basis that it relates to the use of premises by customers is artificial. Nor is it relevant whether there are customers in fact there or not. The cost of mowing the extensive grounds is one which arises from the plaintiff's home's identity as a bed and breakfast business and the cost of mowing and garden maintenance would be tax deductible. In addition, Senior Counsel for the defendants draws to my attention the plaintiff's statements to Dr Virgona that he enjoyed sitting on the ride-on mower and was able to do this work.
In Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 at [71] the Court noted it was "not appropriate to simply pluck a figure out of the air because there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future". The same might be said of taking an arbitrary percentage of the cost of work of a commercial nature carried out as part of a business activity for the bed and breakfast business the plaintiff carries on with his wife. That work is necessary because the plaintiff is running a business, in circumstances where he has told medical practitioners he actually enjoys mowing. I am not prepared to accept this fanciful (to borrow the Court of Appeal's term) future home care assessment method.
A small allowance should be made, however, for heavier outdoor tasks around the home. The defendants make an allowance of $5,000 for this kind of work. In the circumstances, that is the sum I propose to award.

Summary of Damages Non-economic loss $200,000 Past out-of-pocket expenses $46,592.69 Future out-of-pocket expenses $35,000 Past economic loss $20,000 Future economic loss NIL Past care NIL Future care $5,000 TOTAL $306,592.69

Orders 1. Judgment for the plaintiff for $306,592.69. 2. Defendants to pay plaintiff's costs. 3. Liberty to apply in relation to costs. 4. Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2018

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Judgment (21 paragraphs)

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Cases Cited (20)