Dharamdas v Boateng - [2017] NSWDC 441 - NSWDC 2017 case summary — Zoe

NSWNSWDC

Dharamdas v Boateng

[2017] NSWDC 441

District Court of NSW|2017-10-16|Before: Mr J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-10-16

Before

Mr J

Catchwords

TORTS - negligence - motor vehicle accident - pedestrian struck by taxi whilst crossing roadway - negligence and contributory negligence already determined
214 CLR 118 Fox v Wood [1981] HCA 41

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - motor vehicle accident - pedestrian struck by taxi whilst crossing roadway - negligence and contributory negligence already determined214 CLR 118 Fox v Wood [1981] HCA 41

Judgment (64 paragraphs)

[1]

Table of Contents Nature of case and factual background [1] - [3] Issues [4] - [6] Evidence overview [7] - [12] Credibility and reliability of testimony [13] - [32] Plaintiff [25] - [26] Plaintiff's wife [27] - [28] Plaintiff's daughter [29] - [31] Expert evidence [32] Facts [33] - [256] (1) Plaintiff's background circumstances [35] - [40] (2) Plaintiff's pre-accident health issues [41] - [45] (3) Accident circumstances [46] - [49] (4) Injuries and initial treatment [50] - [64] (5) Subsequent medical and allied reviews [65] - [66] (6) Video surveillance evidence [67] - [91] (7) Evaluation of expert commentaries on DVD material [92] - [209] (8) Evaluation of pivotal medical issues [210] - [224] (9) Evaluation of 1 December 2014 transcript [225] - [231] (10) Disabilities that remain [232] - [235] (11) Work effects [236] - [247] (12) Domestic effects [248] - [249] (13) Mitigation [250] (14) Plaintiff's most likely circumstances [251] - [256] Assessment of damages [257] - [1?3] Actuarial factors [258] Past economic loss [259] - [264] Past loss of superannuation [265] Fox v Wood [266] - [269] Future loss of earning capacity [270] - [271] Future loss of superannuation [272] Past domestic assistance [273] - [283] Future domestic assistance [284] - [291] Future treatment expenses [292] - [301] Past out-of-pocket expenses [302] - [310] Summary of damages assessment [311] Disposition [312] Costs [313] Orders [314]

[4]

Evidence overview

Oral evidence was given by the plaintiff, by his wife Mrs Philomena Dharamdas, and eldest daughter Ms Joan Dharamdas. The remainder of the evidence comprised medical records and reports, related documents, some DVD surveillance footage, and medical commentaries concerning that footage, all of which requires analysis.
The assessment requires consideration of numerous and voluminous medical materials, reports and opinions, in circumstances where the parties did not call any explanatory oral evidence from any of the authors of the medical reports. This raised disputes that persisted even after joint meetings were convened, and joint reports obtained from three sets of expert witnesses, as selected by the parties. Unfortunately, not all relevant experts participated in that process.
Those circumstances rendered the analysis of over 1000 pages of medical materials and reports more burdensome than would otherwise have been the case.
In cases where the authors of medical reports are not called to give explanatory evidence, the reports tendered in evidence must be analysed according to the persuasiveness of their content and underlying reasons. The task of reconciling disputed matters of opinion is well-recognised as being a more burdensome exercise where the opinions givers are not called or required to give oral evidence: Cupac v Cannone [2015] NSWCA 114, at [17] - [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] - [22].
In cases such as this, where the rational basis for expert evidence is either absent, or inadequately provided, the matters in dispute must be determined according to the onus of proof on any particular issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
The analysis is guided by the degree to which the expert opinions comply with, or fail to comply with, the requirements of UCPR r 31.27(1)(c) and UCPR Sch 7 cl 5(1)(c) when determining which aspects of that evidence should be either accepted or rejected. These are matters that must be grappled with in the course of the required analysis: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, at [53]; Coote v Kelly [2013] NSWCA 357, at [39] following Waterways Authority v Fitzgibbon [2005] HCA 57, at [129] - [130].

[5]

Credibility and reliability of testimony

The defendant raised the credibility and the reliability of the evidence of the plaintiff as being the foremost significant issue in the case. The defendant claimed that the plaintiff had deliberately exaggerated his claim for compensation, including by overstating the effects that the accident had upon him, given his age, and his pre-existing medical and health history. Although the plaintiff claimed he was unfit for work since his accident on 31 January 2011, the defendant maintained that the plaintiff had been fit to return to his pre-accident work by the end of 2011: T220.30 - T221.4.
The defendant relied upon video surveillance footage of observations of the plaintiff as carried out by the defendant's investigators in September 2015 and March 2017: Exhibits "1" and "2". The defendant also relied upon a series of commentaries by medical experts on that surveillance footage in order to make credit-based criticisms of the plaintiff. I have found critical aspects of those commentaries to be unreliable for reasons I will identify.
The significance of the September 2015 timing of the video surveillance footage was that it was obtained after judgment had been entered in the plaintiff's favour at the first trial of the proceedings, and before an appeal had been filed. That appeal was ultimately allowed, which has resulted in this further hearing. I remain unaware of the details of that first trial and appeal except in relation to the liability result, and in relation to a partial transcript of the plaintiff's evidence in chief in those proceedings, which was tendered in these proceedings: Exhibit "13".
The defendant's attack on the plaintiff's credibility in this hearing was that after the plaintiff had obtained the first instance judgment in his favour in 2015, he "thought … [he was] … free to go about normal activities" because the case was over and he no longer had to pretend to have a disability, as was submitted he had done after the accident and before that judgment.
In that attack, it was suggested that when the plaintiff went to see "the doctors" he had presented to them as someone who was only capable of walking very slowly, and it was suggested that he did so as a deliberate attempt on his part to claim a disability that he did not have. The plaintiff rejected that suggestion: T156.6 - T157.21.
The defendant's attack on the plaintiff was not limited to the activity of walking. It also extended to the extent to which the plaintiff had use of his right arm (T157.43 - T157.50), his use of a walking stick for support (T158.12, T162.16 - T162.18), holding his right arm in front of his stomach in a fixed position (T158.15 - T158.27; T162.34), his history as given to a doctor on 28 November 2012, that he could only walk on level ground for brief periods, such as for 10 minutes: T159.35 - T160.14, T161.20 - T161.45; T162.5.
The tenor and the effect of that cross-examination of the plaintiff was the defendant's contention that the plaintiff had intentionally deceived the examining doctors by presenting himself in a manner that suggested he was more disabled than he really was, as a deliberate exaggeration on his part. The plaintiff also denied those allegations. That position appears to have been based on medical opinions that I have found to be unsatisfactory and unreliable.
The plaintiff was cross-examined at length on the content of the DVD surveillance footage: T150 and following. At times, his defensive requests for clarification, and his attempts at giving over-inclusive answers, reflected an air of affront, frustration, and at times upset, that he plainly exhibited in the course of that cross-examination.
A difficulty faced by the defendant in relying on the cited medical commentaries on that DVD surveillance footage is that the medical opinions and commentaries on that material had inherent limitations, and raised questions of procedural fairness, which in one instance, it appeared, included material obtained in 2016 which was possibly viewed by experts, where that material was not tendered in evidence in these proceedings.
The tendered video surveillance material was not only not contemporaneous to any evidence of medical examinations at which clinical assessments had been made by those experts, but it was one side of the story, and the plaintiff's explanations comprised the other, which was a relevant matter that could not be explored by the defendant's experts.
Only one of the defendant's medico-legal experts, Dr Robert Lewin, a consultant psychiatrist, identified that qualification and recognised that difficulty in formulating his comments on the significance of the surveillance material. He noted that he had not had the opportunity to put those matters to the plaintiff: Exhibit "3", at p 1 76. Those matters will be taken up in the evaluation of the reliability of those medical opinions concerning the aptness of the interpretations that the experts have made of that surveillance footage.
For reasons that will be made plain in the course of my evaluation of the surveillance evidence, I considered that material and the related medical commentaries, to be unpersuasive insofar as they were said to support credit-based criticisms of the plaintiff. When those commentaries were considered in the proper context, they did not relevantly contradict the substantive elements of the plaintiff's claims that call for assessment, particularly his claim for economic loss. I considered that for reasons that will be stated in my evaluation of that material, only limited weight should be given to significant aspects of the interpretations and conclusions of some of the expert commentaries concerning that DVD surveillance footage.

[11]

(1) Plaintiff's background circumstances

The plaintiff was born in India in 1947. He immigrated to Australia in 1976. At the hearing he was aged 70 years. He is married with two adult daughters.
The plaintiff left school in 1963. After completing an apprenticeship as a toolmaker in India, he obtained qualifications in that trade. He has always worked in that trade, in various countries, and for various employers from that time, until the time of the accident. The work was heavy, and often required the use of cranes and chains to position, manipulate, lift and separate metal moulds and plates, of varying weights and sizes. In the course of that work, the plaintiff on occasion sustained injuries, the effect of which have not been shown to have had any long term deleterious effect on his capacity to work.
For a relatively short period of time in 1997, the plaintiff had unsuccessfully attempted a period of self-employment. That endeavour proved financially unsuccessful for him. In those circumstances, the financial losses he incurred in that venture caused him to lose his home. He then returned to paid employment in his trade. He therefore had a very strong financial incentive to continue working in the area he knew best in order to recover from that financial setback.
From September 1998, until the time of the subject motor vehicle accident in 2011, the plaintiff was employed in full-time work as a precision toolmaker with HPM Industries, which has merged with another company, to become HPM Legrand. The result of that merger was that a significant number of toolmakers in its employ became redundant. In those events, it is significant that the plaintiff kept his job. I take that circumstance to mean that he was a valued employee.
Before the subject motor vehicle accident, the plaintiff had no apparent difficulty coping with the significant physical demands of his work, despite having some health issues and having sustained some previous work-related injuries from which he had recovered. At times, in the pre-accident period, this involved him working six days per week, including working overtime hours on three days per week.
Prior to the subject accident the plaintiff was physically active around his home, and he personally attended to many home maintenance, repair, cleaning and other chores and tasks.

[12]

(2) Plaintiff's pre-accident health issues

Given that over many years the plaintiff had been engaged in heavy and physically demanding mechanical work, unsurprisingly, his tendered medical records revealed a number of pre-accident instances of medical and allied consultations for both work and non-work related matters that had affected his health from time to time.
In view of the defendant's attack on the plaintiff's credit, and in view of the critical content of certain commentaries made by some of the defendant's medical experts, the available medical evidence relating to the plaintiff's previous health and injury history that pre-dated the subject accident is summarised in the following 41 sub-paragraphs, as a prelude to further analysis of the elements of the plaintiff's claims: 1. On 17 July 1997, the plaintiff was hospitalised for the investigation and management of atypical chest pain of four days duration, which was thought to be due to stress and tension associated with a business transaction that had been problematic for him: Exhibit "B", pp 241-246; 2. On 19 November 1999, the plaintiff underwent an MRI scan of his right wrist for a queried triangular fibro-cartilage complex (TFCC) tear that followed a radial fracture. The scan showed minimal swelling in the triquetrum of that wrist, and no definite tear was demonstrated: Exhibit "B", p 1 ; 3. In 1998, the plaintiff was assaulted and sustained a back and an arm injury when he was pushed: T70.40 - T71.3. 4. On 11 February 2000, at the request of Dr Sikkina Tejani, his general practitioner, the plaintiff consulted Dr Peter Katelaris, a gastroenterologist, regarding "long standing upper gut symptoms" which he had experienced for a number of years, including retro-sternal heaviness and acid regurgitation. A suggested diagnosis of reflux was made, and a gastroscopy procedure was suggested: Ex "B", p 2; 5. On 6th March 2000, Dr Katelaris carried out an upper tract endoscopy procedure on the plaintiff which revealed gastritis, which was later described as significant pangastritus, with active chronic gastritis, requiring antibiotic therapy for eradication: Exhibit "B", pp 3-4. 6. On 7 February 2001 the plaintiff injured his right forearm at work when that arm became jammed in a machine. At that time it was noted the plaintiff had fractured his right forearm two years earlier: Exhibit "4" p 37; 7. On 7 February 2001, the plaintiff had a diagnostic x-ray of the right forearm and wrist, which was reported as showing no abnormality: Exhibit "B" p 5; 8. On 11 October 2001 the plaintiff's left thumb was accidently hit by a hammer and this required medical treatment: Exhibit "4", p 38; 9. On 23 November 2001, the plaintiff was seen by Dr Sheik Habib for an orthopaedic review of a hammer strike injury to his left thumb, which occurred on 11 October 2001, and which resulted in a fracture of the distal phalanx of that thumb, requiring the use of a splint in the healing process: Exhibit "B", p 6; 10. On 14 December 2001 Dr Habib again reviewed the plaintiff's left thumb injury and recommended the continued use of a protective splint and the use of a padded finger stall: Exhibit "B" p 7; 11. In the year 2002, as shown in some poorly copied and not completely readable Workcover medical certificates, the plaintiff had some unidentifiable days off work: Exhibit "4", pp 140-169; 12. On 14 May 2002 the plaintiff had an episode of experiencing pins and needles sensation on his right leg: Exhibit "4", p 40; 13. On 1 December 2006, an abdominal ultrasound shown the plaintiff to have a large gallstone in his gallbladder: Exhibit "4", p 113; 14. On 26 February 2007, the general practitioner's notes record that the plaintiff complained of pain in both shoulders of six weeks duration due to heavy work: Exhibit "4", p 171. It appears that as a result of that injury, he was left with some residual shoulder discomfort when carrying out some work tasks due to repeated and forceful hammering of metal moulds in order to manipulate and separate them; 15. On 26 February 2007, the plaintiff underwent on x-ray of a shoulder and his thoracic spine. The shoulder showed a little narrowing of the acromio-clavicular joints that were thought to be probably due to early osteoarthritis, and the thoracic spine showed some lateral osteophytes and anterior wedging of a few upper dorsal vertebral bodies: Exhibit "B", p 8; 16. On 13 March 2007, it was noted that x-rays revealed the plaintiff to have wedging of a few mid-dorsal/upper dorsal bodies and early arthritis in the acromio-clavicular joint: Exhibit "4", p 171; 17. On 20 March 2007, the plaintiff sustained a back straining injury when bending over to move a mould on a pallet. This was said to have involved a disc protrusion of the lumbar spine and it involved an injury management plan that was kept under review for at least 26 weeks: Exhibit "4", pp 135-136; 18. On 20 March 2007, the plaintiff underwent an x-ray of his lumbar spine, which revealed anterior osteophytosis at L5/S1: Exhibit "B", p 9; 19. Between 23 March 2007 and 7 November 2008, there were some 30 or so consultations with the plaintiff's general practitioner about low back ache issues which related to physiotherapy and injury management: Exhibit "4", p 183; 20. On 26 March 2007, a physiotherapy management plan was established and scheduled to conclude on 30 July 2007. The plan was directed at back strengthening exercises: Exhibit "4", pp 140-143; 21. On 3 April 2007, the plaintiff's treating physiotherapist noted slow improvement in lumbar mobility but suggested continued restriction of work duties until lifting capacity was upgraded: Exhibit "4", p 111; 22. On 19 April 2007, the plaintiff's treating physiotherapist noted the plaintiff had increased back pain following his return to work. He suggested a 5kg restriction on lifting and to continue on restricted duties for one week: Exhibit "4", p 110; 23. On 26 April 2007, the plaintiff's treating physiotherapist reported that the plaintiff's back pain was not worse, and that he should stay on his current work duties and not upgrade just yet: Exhibit "4", p 172; 24. On 11 May 2007, the plaintiff's treating physiotherapist noted that the plaintiff was participating in stability and strengthening exercises and there were doubts about whether he was ready to upgrade for work duties at that time: Exhibit "4", p 148; 25. On 31 May 2007, the plaintiff's general practitioner indicated to the workers' compensation insurer that the plaintiff's shoulder pain required he should avoid excessive lifting and bending at work: Exhibit "4", pp 144-146; 26. On 31 May 2007, the plaintiff's treating physiotherapist noted that the plaintiff was still presenting with back pain and spasm after work but was slowly improving. Fortnightly physiotherapy for a strengthening programme was continuing: Exhibit "4", p 139; 27. On 31 May 2007, an injury management plan was at that time developed for the plaintiff in respect of his shoulder pain, which included avoiding excessive lifting and bending at work: Exhibit "B", pp 10-11; 28. On 17 July 2007, a physiotherapy management plan noted that the plaintiff was subject to functional restrictions limiting his return to work involving activities such as bending, sitting, walking, lifting or carrying: Exhibit "B", p 12; 29. On 31 July 2007, the plaintiff underwent a CT scan of his thoracic and lumbar spines. The CT of the thoracic spine showed anterior osteophytes, but without disc protrusion or canal stenosis. The CT of the lumbar spine showed a mild loss of disc height and a broad based central disc protrusion resulting in mild canal stenosis and minimal foraminal stenosis bilaterally, with an L5/S1 broad based degenerative disc protrusion with mild bilateral foraminal stenosis and canal stenosis: Exhibit "4", pp 137-138; 30. On 29 August 2007, the plaintiff received further physiotherapy treatment for a lower back injury. The presentation was thought by the physiotherapist to be due to annular tear of one of the lumbar discs. Post vertebral muscle spasm was present, with restructured forward bending; and tenderness over the left L5 facet joint; Soft tissue massage treatment improved the symptoms but there were still limitations noted at that time: Exhibit "4", p 109; 31. In the year 2008, as shown in some incompletely readable and poorly copied Workcover medical certificates, the plaintiff had some unidentifiable days off work: Exhibit "4", pp 123-126; 32. On 17 January 2008, at the request of Dr Tejani, the plaintiff was seen by Dr Paul Russell, a consultant cardiologist, for a stress test and CT angiogram, which revealed only very minor coronary artery disease, but with cardiac risk factors which were thought to be present: Exhibit "B", p 15; 33. On 2 September 2008, the plaintiff was assessed as being fit for his work as a toolmaker: Exhibit "B", pp 16-17; 34. On 7 November 2008, the plaintiff completed a Peak Conditioning training programme with the aim of upgrading his work abilities to his pre-injury duties. The programme addressed lifting and handling issues, and fear of entering and exiting forklifts: Exhibit "4", pp 98-100; 35. On 9 November 2009, the plaintiff was assessed by Dr Chhaya Tangirala, a gastroenterologist, for management of his foregut problems comprising epigastric fullness, pressure and excessive belching. A gastroscopy was recommended to be carried out on 26 November 2009: Exhibit "B", pp 18-19; 36. On 26 November 2009, Dr Tangirala carried out a gastroscopy procedure on the plaintiff. She found a sub-mucosal lesion in the fundus of the stomach, and mild central erythema. She recommended a follow-up gastroscopy in a further 3 years: Exhibit "B", p 20; 37. On 16 December 2009, Dr Tangirala wrote to Dr Tejani to report that the plaintiff had a small oesophageal hiatus hernia, with mildly erythematous vocal cords, as well as a sub mucosal lesion of the stomach. He recommended dietary modifications, and a follow up appointment in 12 months, with a follow up endoscopy in 2-3 years: Exhibit "B", p 22; 38. On 14 July 2010, the plaintiff underwent a hernia operation from which he appears to have recovered, as he has worked in the full duties of his job since then: Exhibit "B", p 197; 39. On 16 January 2011, the plaintiff complained to his general practitioner, of a painful and tender right shoulder of a few weeks duration, with a restricted range of movement: Exhibit "4", p 91. In cross-examination the plaintiff explained that the context was that of an old injury due to excessive use of his right shoulder at work: T93.12; 40. On 28 January 2011, which was just 3 days before the subject accident, at the request of Dr Russell, the plaintiff underwent a cardiac stress test in light of a history of his previous experience of mild angina in 2008. That stress test revealed an ischemic response to exercise and the perfusion test was consistent with a mild and small degree of ischemia of the apex of the heart: Exhibit "B", p 32; 41. On 31 January 2011, which was the same day as the subject accident, Allianz, the workers' compensation insurer, co-incidentally approved a physiotherapy treatment plan for the plaintiff's right shoulder, neck, back and left thumb: Exhibit B, p 27. Whilst that approval bears the same date as the subject accident, I infer from the facts identified in sub-paragraph (39) above that this approval for physiotherapy related to the plaintiff's pre-accident right shoulder condition, and it appears that it was not due to the accident that occurred on 31 January 2011. It seems the problem was due to the hammering requirements of his work: T19.28 - T19.42.
Despite his previous shoulder injury as described above, the plaintiff coped with the physical requirements of his work: T18.6 - T18.12. There is no convincing evidence to the contrary. He managed his pre-accident episodes of back pain and shoulder pain by taking painkilling medication and having massages: T18.40.
In addition to the matters outlined above, the plaintiff also had a longstanding unrelated but pre-existing health problem consisting of diabetes mellitus, which was apparently diagnosed when he was aged about 50 years. He has kept that condition under control by keeping physically active, including by swimming, and by taking medication. His general practitioner had also referred him for specialist cardiological management.
Having reviewed the matters outlined above, I find that none of those matters had any lasting effects on the plaintiff's pre-accident capacity to carry out his work as a toolmaker in his pre-accident employment. That said, those earlier events and injuries undoubtedly predisposed the plaintiff to being vulnerable to suffering aggravations of those problems if he were to sustain injuries to those earlier affected areas.

[16]

St Vincent's Hospital records

At 07:45 hours, at the St Vincent's Hospital records are noted to refer to the plaintiff's history of right shoulder pain, pain to his lumbar spine, and pain in his pelvis: Exhibit "B", p 109.
At 12:50 hours, the secondary assessment made of the plaintiff at St Vincent's Hospital was that he had a 2 cm laceration of the left palm, on part of the left thumb, with a stable tendon and 2 cm diameter superficial abrasions to both knees. He was found to have tenderness over thoracic, lumbar and sacral spines and he was placed in a cervical collar pending clearance of any doubt over the nature and extent of his spinal injury. He had x-rays taken of his right elbow, right shoulder and left thumb: Exhibit "B", p 106.
At 13:30 hours, a secondary survey was undertaken at St Vincent's Hospital, which noted soft tissue swelling in the plaintiff's right arm, the left thumb laceration, grazes over both patellae, tenderness of the right side of the lower back: Exhibit "B, pp 114-115. At that time, on x-ray, a minor disc bulge at L5/S1 was noted, with the presence of L1 osteophytes: Exhibit "B" p 115. The CT scans taken of the plaintiff at St Vincent's Hospital showed osteophytes in the lumbar spine, with a minor disc bulge at L5/S1 and mild narrowing of the spinal cord, and degenerative changes in the thoracic and lumbar spines: Exhibit "B", pp 127-128.
A physiotherapy assessment carried out at St Vincent's Hospital on 31 January 2011 concluded that the plaintiff also had a likely sprain to the right acromio-clavicular joint: Exhibit "B", p 117.
On the basis of the above survey, the plaintiff's injuries were noted to have been occasioned to the lumbar spines, the right shoulder, the left thumb and abrasions to both knees: Exhibit "B", p 116. It appears that the plaintiff used his left hand to try and stop the vehicle at the time of the accident: Exhibit "B", 336. That description of events would explain the injury to his left thumb.
A matter requiring resolution in the evaluation of the plaintiff's evidence and the medical evidence is whether it was likely that he had a head injury of some kind that might explain the fact that, at some time after the accident, in 2013, he developed seizures, a matter that was the subject of conflicting medical opinions by consultant neurologists. There was no convincing evidence that the plaintiff has sustained a period of loss of consciousness in the subject accident.

[20]

(5) Subsequent medical and allied reviews

Before identifying my findings as to the plaintiff's accident-related disabilities, at this point I will set out some findings on my consideration of the medical and allied evidence, video surveillance evidence, and my findings on matters of conflict within the medical and allied evidence.
The salient features of the plaintiff's post-accident medical and allied attendances, and the related assessments that ensued are extracted and summarised from the Exhibits and re-arranged in chronological order, in the following 143 sub-paragraphs: 1. After being attended by ambulance personnel (Exhibit "B", p 100), the plaintiff was taken to St Vincent's Hospital for assessment and treatment: Exhibit "B", pp 103-128. The details of the notes and the assessments undertaken at that hospital have been summarised at paragraphs [46] to [49] and [51] to [58] above; 2. On 1 February 2011, Dr Tejani saw the plaintiff and noted that he was still in shock after the accident, and in a lot of pain. She noted the plaintiff's lacerated left thumb, which was in plaster, grazes to both knees, thighs and the right elbow. She noted the plaintiff had restricted right shoulder movements, very painful and stiff knees, lower back pain and neck pain; and that he felt miserable: Exhibit "B", pp 603-604; 3. On 1 February 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 11 February 2011: Exhibit "B", p 292; 4. On 11 February 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 14 March 2011: Exhibit "B", p 291; 5. On 17 February 2011, at the request of Dr Tejani, the plaintiff underwent an ultrasound examination of the right shoulder, which revealed a high grade tear along the anterior/mid supraspinatus tendon insertion, likely to be a full thickness tear: Exhibit "B", p 24; 6. On 23 February 2011, the plaintiff first saw Dr Daniel Biggs, a consultant orthopaedic surgeon, for assessment of his painful right shoulder. Dr Biggs noted that the plaintiff gave him no prior history of right shoulder injury, Dr Biggs considered that the plaintiff landed heavily on his right shoulder in the accident, and subsequently developed a painful and weak right shoulder. He was of the opinion, on the balance of probabilities, that the rotator cuff tendon tear of that shoulder was due to the accident: Exhibit "B", pp 50-52. 7. On 11 March 2011, at the request of Dr Biggs, the plaintiff underwent an MRI scan of his right shoulder, which revealed a number of tears, thickening, effusions and mid acromio clavicular joint arthrosis of the right shoulder joints Exhibit "B", p 25; 8. On 14 March 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 15 April 2011: Exhibit "B", p 290; 9. On 17 March 2011, Dr Tejani referred the plaintiff for physiotherapy treatment to the neck, back, right wrist, knees and left shoulder: Exhibit "B", p 41; 10. On 20 March 2011, an x-ray of the plaintiff's lumbar spine was reported as showing anterior osteophytosis at L5/S1: Exhibit "4", p 122; 11. On 31 March 2011, Dr Biggs reviewed the plaintiff's MRI scans and confirmed the presence of a right rotator cuff tendon tear: Exhibit "B", p 26; 12. On 12 April 2011, Dr Tejani identified the plaintiff's injuries as comprising a deep laceration to the left thumb, grazes to both knees, thighs and right elbow, a painful right shoulder, and back pain: Exhibit "B", p 28; 13. On 15 April 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 17 May 2011: Exhibit "B", p 289; 14. On 11 May 2011, Dr Biggs undertook an arthroscopy and repair procedure of the plaintiff's right rotator cuff. At that time the plan was for rehabilitative exercises and soft tissue releases with physiotherapy: Exhibit "B", p 30. 15. On 11 May 2011, at the request of Dr Tejani, the plaintiff had an x-ray of his left thumb which showed chronic spurring of his fifth metacarpal. He also had an unremarkable x-ray of the right wrist: Exhibit "B", p 32; 16. On 16 May 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 May 2011: Exhibit "B", p 288; 17. On 27 June 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 29 July 2011: Exhibit "B", p 287; 18. On 29 June 2011, at the request of Dr Biggs, the plaintiff underwent an x-ray of his right shoulder, which showed two post-operative suture anchors in the humeral head: Exhibit B, p 29; 19. On 29 June 2011, seven weeks post-operatively Mr Vukovic, a physiotherapist, commenced the plaintiff on a program of post-operative physiotherapy: Exhibit "B", pp 30-31; 20. On 27 July 2011, Mr Vukovic commenced the plaintiff on physiotherapy treatment eleven weeks post operatively: Exhibit "B", pp 33-34; 21. On 28 July 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 30 August 2011: Exhibit "B", p 286; 22. On 1 August 2011, a physiotherapy management plan noted the plaintiff's condition of chronic shoulder capsulitis: Exhibit "B", p 36; 23. On 11 August 2011, at the request of Dr Yee, a hand and wrist surgeon, the plaintiff underwent an ultrasound of the left thumb, which revealed a post-operative fluid collection or cystic structure, and an MRI of the right wrist revealed a full thickness tendon tear, some capsule thickening, and some tendinopathy of a tendon sheath: Exhibit "B", pp 37-38; 24. On 17 August 2011, Dr Yee reviewed the plaintiff again and identified the need for a procedure to release the plaintiff's left trigger thumb abnormality, and recommended the full thickness triangular fibro-cartilage complex tear be left for a while to see if the symptoms resolved spontaneously: Exhibit "B", p 39; 25. On 30 September 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 15 November 2011: Exhibit "B", p 285; 26. On 4 November 2011, Dr Yee performed a trigger release procedure and tenolysis on the plaintiff's left thumb: Exhibit "B", p 42; 27. On 9 November 2011, and again on 21 November 2011, Dr Yee noted the plaintiff's left thumb flexor tendon was significantly adherent; and would require a lot of physiotherapy: Exhibit "B", pp 43-44; 28. On 11 November 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 January 2012: Exhibit "B", p 284; 29. On 22 November 2011, a four month psychological management plan was established to assist the plaintiff with his psychological problems of post-traumatic stress, anxiety and depression; Exhibit "B", pp 45-49; 30. On 27 November 2011, at the request of Dr Tejani, the plaintiff was assessed by Dr Yee, who requested radiological investigations: Exhibit "B", p 35; 31. On 8 December 2011, at the request of the workers compensation insurer, the plaintiff was examined by Dr Robert Drummond a consultant orthopaedic surgeon. Dr Drummond was provided with unspecified documentation for that purpose. Dr Drummond stated (at p 69), that his opinion and report "is based entirely upon the evaluation of objective findings today". He identified his diagnosis (at p 74), as a right shoulder rotator cuff tear, injury to the left thumb involving the flexor tendon, TFCC injury to the right wrist, soft tissue injuries to the cervical and lumbar spine, and a direct injury to the patello-femoral joints of both knees. He also stated it was possible that the accident had aggravated pre-existing spondylosis to the cervical and lumbar spines by the nature of the impact of the accident. He also noted the slow recovery. He believed the ganglion on the plaintiff's right wrist was not accident-related. He predicted that it was unlikely the plaintiff would return to full work duties, and identified anxiety and an attitude to work that needed to be overcome with psychological treatment to avoid a chronic situation developing. He considered the plaintiff had lost the motivation and attitude required to undertake the heavy nature of his work as a toolmaker. He predicted a poor prognosis for full recovery because of anxiety, motivation, and attitude, for which he considered that the plaintiff required psychological help: Exhibit "3", pp 69-76; 32. On 14 December 2011, five weeks post-surgery, Dr Yee re-assessed the plaintiff's left thumb, and recommended continued hand therapy: Exhibit "B", p 53; 33. On 19 December 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 21 January 2012: Exhibit "B", p 283; 34. On 25 January 2012, Dr Yee reviewed the plaintiff and noted that the plaintiff's left thumb was not likely to improve; that the presenting right wrist problem was due to a TFC tendon tear seen on MRI, and that the plaintiff should have his shoulder surgery before any wrist surgery: Exhibit "B", p 54; 35. On 18 February 2012, a psychologist noted the plaintiff had been suffering from injury-related emotional difficulties due to multiple sites of chronic pain, and recommended massage therapy to foster endorphin and oxytocin release: Exhibit "B", p 55; 36. On 21 February 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 23 March 2012: Exhibit "B", p 281; 37. On 7 March 2012, at the request of Dr Biggs, the plaintiff underwent a right shoulder ultrasound which revealed glenero-humeral capsulitis and an intact surgical repair of the mid to anterior right supraspinatus insertional rotator cuff tear: Exhibit "B", p 56; 38. On 23 March 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 26 April 2012: Exhibit "B", p 280; 39. On 4 April 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 16 January 2013: Exhibit "B", p 318; 40. On 19 April 2012, at the request of Dr Biggs, the plaintiff underwent an MRI scan of the right shoulder which showed an intact surgical repair, with low grade post surgical tendonitis: Exhibit "B", p 57; 41. On 26 April 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 May 2012: Exhibit "B", pp 278-279; 42. On 24 May 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 28 June 2012: Exhibit "B", p 277; 43. On 31 May 2012, at the request of his solicitor, the plaintiff was examined by Dr John Harrison, a consultant orthopaedic surgeon. Dr Harrison noted the plaintiff's physical complaints as comprising problems with his right wrist, left thumb, right shoulder pain, which limited his reaching ability, base of neck pain in the interscapular distribution, pain with shoulder and arm movements, lumbo-sacral pain with radiation to the lower limbs, aggravated by activity, pain in both knees and walking with a limp. He also noted the plaintiff had phobias and fears about driving and being outdoors. Dr Harrison's examination of the plaintiff was impeded by psychological factors and the plaintiff's apprehensiveness. Dr Harrison nevertheless concluded that the plaintiff was not fit for work and would not be safe to work around machinery: Exhibit "B", pp 320-335; 44. On 6 June 2012, at the request of his solicitor, the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon. His assessment of the plaintiff's right shoulder, neck, right wrist, left limb, low back and bilateral knee disabilities, which he listed in detail, were accident-related. He considered the plaintiff to be permanently unfit for work as a toolmaker, and for labouring work generally, including tasks such as repetitive bending, heavy lifting, carrying, twisting, pushing and dragging actions. He also considered the significance of the plaintiff's neck problems. He went on to explain why the plaintiff's upper limb and lower limb problems would limit his work activities and his activities of daily living, the latter issue requiring an occupational therapy assessment. He also made significant recommendations for further treatment, noting that the plaintiff's condition had not yet stabilised: Exhibit "B", pp 367-372; 45. On 14 June 2012, the plaintiff's solicitor received an undated letter from Dr Tejani in which she summarised the history of the plaintiff's accident, the injuries he sustained, and the course of treatment. Dr Tejani also noted that the plaintiff was in constant pain, was getting very anxious and depressed, and was referred for counselling, noting also that the plaintiff may need psychiatric intervention and medication for his depression and his anxiety: Exhibit "B", pp 603-604; 46. On 21 June 2012, the plaintiff underwent a gastroscopy performed by Dr Tangirala, for GORD, which recorded fundal polyps in the stomach. A colonoscopy was recommended: Exhibit "B", pp 58-60; 47. On 25 June 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 6 August 2012: Exhibit "B", p 276; 48. On 5 July 2012, at the request of the workers' compensation insurer, Dr Margaret Gibson, an occupational physician, assigned to the plaintiff an impairment assessment of 4 per cent. Her letter which incorporated that assessment did not indicate when she had examined the plaintiff for that purpose: Exhibit "3", pp 126-128. This gives rise to a question of whether a full portfolio of Dr Gibson's reports had been tendered by the defendant. As the parties did not address that question I will not give it further consideration; 49. On 15 July 2012, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Gibson. Dr Gibson took the approach that if the plaintiff's injuries were not mentioned in the medical documentation provided to her, it would not be reasonable for her to accept the accident as the cause of the plaintiff's complaints of injury. On that basis, she "was not convinced that there was a right wrist injury as this was not mentioned in the certificate of the general practitioner. There should have been some complaint much earlier on after the accident". She stated there was no evidence of pre-accident conditions or injuries that would impact on the activities of daily living or work. She accepted the plaintiff had an "ongoing partial incapacity". She summarised the plaintiff's accident-related injuries as laceration to the left thumb, grazes to both knees and thighs, soft tissue injury to the right shoulder and a musculo-ligamentous strain to the lower back. The documents that were provided to her were apparently listed and identified as Attachment "A" to her report, but that attachment was not included in the tender bundle. This leaves uncertain the question of what material she relied upon for the purpose of preparing her report: Exhibit "3", pp 129-140; 50. On 29 August 2012, Dr Yee saw the plaintiff and noted ongoing pain in the right wrist and noted the plaintiff's wish for arthroscopy and TFC repair. Dr Yee suggested waiting a while longer for surgery to the plaintiff's frozen (right) shoulder: Exhibit "B", p 61; 51. On 29 August 2012, the plaintiff was reviewed by Dr Tangirala, who noted ongoing right shoulder, neck and back pain, and within his specialty, ongoing heartburn, probably from reflux oesophagitis: Exhibit "B", p 62; 52. On 5 September 2012, at the request of the CTP insurer, the plaintiff was examined by Dr Raymond Wallace, a consultant orthopaedic surgeon. Dr Wallace noted that the plaintiff had been certified as being unfit for work since the accident, and his employment had been terminated in July 2012. Dr Wallace accepted that the plaintiff's neck, right shoulder, right wrist, left thumb, lumbar spine and bilateral knee conditions were caused by the subject accident. He considered that the plaintiff remained unfit to return to his pre-accident work. In contrast to the opinion of Dr Harrison, Dr Wallace did not consider that any of the plaintiff's problems were as a result of aggravation of a pre-existing condition: Exhibit "B", pp 348-357; 53. On 11 October 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 11 November 2012: Exhibit "B", p 319; 54. On 15th October 2012, Dr Wallace was asked by the solicitor for the plaintiff to clarify his opinion. Dr Wallace agreed with Dr Drummond's view that the ganglion on the plaintiff's right wrist was not accident-related, but he confirmed his view that the triangular fibrocartilage injury to the right wrist was as a result of the plaintiff's fall in the accident, and this was consistent with the pathology. He disagreed with Dr Drummond's view that the plaintiff would not benefit from surgery to the right wrist. He was of the view that the plaintiff was unable to drive a motor vehicle at that time: Exhibit "B", pp 360-361; 55. On 22 November 2012 at the request of the CTP insurer, the plaintiff was examined by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh noted the plaintiff reported significant anxiety symptoms, avoidant behaviour, hyper-arousal and agitation. He considered the plaintiff to have a significant psychiatric condition involving anxiety, which was consistent with the DSM IV diagnosis of chronic post-traumatic stress disorder, and that the subject accident was the substantial contributing factor to that condition: Exhibit "B", pp 362-366; 56. On 30 November 2012, Mr Vukovic noted the plaintiff was making steady progress with physiotherapy and hydrotherapy in his rehabilitation programme. Allianz was requested to renew the plaintiff's hydrotherapy pool pass: Exhibit "B", p 63; 57. In either November or December 2012, Dr Tejani wrote a short but detailed letter to the insurer, Allianz, outlining the plaintiff's accident circumstances, noting amongst other things, that "no head or spinal injuries were noted" and that on examination the day after the accident, the plaintiff "was very confused and still in shock from the accident". She also noted the plaintiff was not capable of driving at the time of writing, that the prognosis was uncertain, and that it would be months before he would be able to start work on restricted duties: Exhibit "B", p 98; 58. In December 2012, Dr Virk, another of the plaintiff's treating general practitioners, was treating the plaintiff for his right shoulder tear, a cartilage tear of the right wrist, an injury to the left thumb, post traumatic stress disorder, and depression; Exhibit "4", pp 102-108; 59. On 8 January 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 17 February 2013: Exhibit "B", p 317; 60. On 21 January 2013, at the request of Dr Tejani, the plaintiff was reviewed by Dr Tangirala for PR bleeding, which was not suggested to be accident-related: Exhibit "B", p 64; 61. On 21 January 2013, at the request of his solicitor, the plaintiff was examined by Dr Bruce Westmore a consultant psychiatrist Dr Westmore noted that the plaintiff had numerous stressors arising from the multiple injuries he sustained in the accident, including ongoing concerns about his current and future health, and the impact on his career and lifestyle in general, which had led to a decline in his functioning. He stated that in his opinion, the plaintiff developed chronic pain symptoms and a post-traumatic stress disorder with high levels of stress and anxiety, which required treatment: Exhibit "B", pp 387-394; 62. On 23 January 2013, at the request of his solicitor, the plaintiff was assessed by Ms Carolyn Grinter, an occupational therapist. She assessed him at his home on that date. She reviewed the plaintiff's history, his physical activities, his household activities, his outdoor domestic activities, his driving and his need for domestic assistance. She made recommendations as to the plaintiff's need for past and future domestic assistance. I will review those recommendations in my reasons for the assessment of the plaintiff's damages concerning those issues: Exhibit "B", pp 410-415; 63. On 31 January 2013, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Drummond. In his report that followed this, his second examination of the plaintiff, Dr Drummond again stated that his opinion and report were "based entirely upon the evaluation of objective findings today". He considered that the plaintiff had reached a state of recovery. He commented upon the plaintiff's symptoms of pain and disability as exceeding the pathology in the right shoulder, left thumb, right wrist and both knees. He described the plaintiff's presentation as being exaggerated and non-compliant with clinical testing of the involved joints, and suggested, pejoratively, the plaintiff "is happy to project a disabled image". He suggested that psychological symptoms have developed, and the plaintiff needed to be assessed and treated by a psychiatrist. He suggested that whilst the plaintiff was not fit for his pre-injury duties, he was fit to work full hours involving sedentary work, with rest breaks and stretch breaks during the day. At that time the plaintiff was aged 66 years. He noted the plaintiff was unable to drive because of anxiety, because of subjective stiffness in the cervical spine, and an inability to comfortably use his right arm to turn the steering wheel due to shoulder stiffness and pain, as influenced by psychological factors. Dr Drummond concluded that : "the only objective pathological finding is the tear of the rotator cuff in the right shoulder. The effect of the peripheral tear of the TFCC in the right wrist would not become symptomatic unless strenuous manual tasks were performed using the right wrist and hand": Exhibit "3", pp 77-89. In my view, only limited weight should be placed on Dr Drummond's opinion because a focus on only objective findings without a consideration of the plaintiff's subjective complaints is an incomplete assessment; 64. On 8 February 2013, the plaintiff was admitted to Westmead Hospital in relation to an episode of unconsciousness. The assessment was that this was due to blood sugar changes and a hypoglycaemic seizure due to him fasting for a colonoscopy: Exhibit "B", pp 221-240; 65. On 27 February 2013, the plaintiff was taken to Westmead Hospital because of a seizure episode with loss of consciousness. The ambulance officer who attended the scene noted that the plaintiff had a clonic toxic seizure, with eye rolling, full body shaking and a post-ictal Glasgow Coma Score of 7: Exhibit "B", pp 215-220; 66. On 27 February 2013, in response to an email from the solicitor for the defendant, Dr Drummond provided a clarification letter which further explained his earlier assessment. The solicitor for the defendant had queried Dr Drummond's comment that several of the plaintiff's injuries had "resolved". He explained that he did not mean by his use of that description that the plaintiff's injuries had resolved to a normal state, but rather, they had healed to a level that was not likely to change, so that the stage had been reached for an impairment assessment to be made. In his report, he hinted that, without surveillance films, he was bound to report the clinical findings. He also wrote: "… I have provided you with an argument to reduce the permanent impairment relating to the right shoulder". He also reminded the solicitor for the defendant that the plaintiff "was hit by a car producing significant injuries from which he is likely to have some ongoing impairment": Exhibit "3", pp 90-91; 67. On 28 February 2013, the plaintiff had an abnormal EEG result which supported a diagnosis of focal seizure disorder, but this was said to need co-relation to neuroimaging: Exhibit "B", pp 264-265; 68. On 1 March 2013, the plaintiff's diagnosis of focal seizure disorder was confirmed, first, as being secondary to hypoglycaemia and second, as a simple partial seizure of temporal lobe onset. That confirmation followed CT and MRI head scans which showed no abnormalities on neuroimaging: Exhibit "B", pp 266-275. The Westmead Hospital clinical notes dated 1 March 2013 recorded a history of the plaintiff having "spells" since his accident in January 2011, the duration being for about 30 seconds each time: Exhibit "B", p 225. This was recorded again on 8 March 2013: Exhibit "B", p 247. The plaintiff did not give that evidence. The cause of the plaintiff's epilepsy will be the subject of analysis upon consideration of the whole of the medical evidence; 69. On 14 March 2013, at the request of his solicitor, the plaintiff was examined by Dr Neil Berry, a consultant surgeon. Dr Berry considered that the medications the plaintiff was taking have increased his pre-existing but not accident-related gastrointestinal symptoms and this is the cause of his constipation with related haemorrhoidal PR bleeding. He therefore supported the recommendation for colonoscopy to exclude other causes for that bleeding: Exhibit "B", pp 416-421; 70. On 2 April 2013, and again in November and December 2013, the plaintiff was seen by Dr Hugo Gonzales, a psychologist for unspecified psychological treatment: Exhibit "B", p 65; 71. On 4 April 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robert Lewin, a consultant psychiatrist. Significantly, in my view, Dr Lewin noted the plaintiff had not experienced anxiety, depression or post-traumatic symptoms of anxiety before the accident. Dr Lewin noted the plaintiff had disuse features in his right arm, he was fearful of re-injury, and has allowed pain to become his guide. He found evidence of intense anxiety in the plaintiff. He noted the plaintiff had a driving phobia. He diagnosed a chronic post-traumatic stress disorder. He did not consider the diagnostic criteria for major depression were satisfied. He found no evidence of exaggeration. He stated that the plaintiff needed to have psychiatric treatment: Exhibit "3", pp 141-152; 72. On 22 April 2013, at the request of the solicitor for the defendant, Dr Drummond provided a supplementary commentary on the plaintiff's shoulder injuries. Dr Drummond noted that he had been provided with reports relating to a previous right wrist injury dating back to 14 May 1999, a right shoulder injury on 28 June 2007, and a lower back injury in February and March 2007. He said the materials provided did not cause him to change his previously expressed views: Exhibit "3", pp 92-93; 73. On 14 May 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Brian Zeman, a consultant in rehabilitation medicine. Dr Zeman considered the plaintiff was not a reliable historian with regard to his prior medical history. It is difficult to ascertain the aptness of that statement without the elements of purported unreliability being identified for evaluation. I therefore place little weight on that aspect of Dr Zeman's conclusion. Dr Zeman commented that the plaintiff's stated intention to have worked past his retirement age if the accident had not occurred was "not consistent with the background of his complaints, or his assertion that his wife's disabilities affected her ability to do things at home which would require his assistance". Unlike Dr Gibson, Dr Zeman accepted the possibility that the plaintiff's TFCC tear in the right wrist could have occurred in the fall in the accident. Dr Zeman considered that the accident caused minor soft tissue injuries to the knees, neck and back which have resolved, but that his complaints of pain and impaired function were not consistent with organic pathology. He conceded that the diagnosis of "depression or PTSD etc if present are likely to be factors in his complaints and impaired function". There is an apparent inconsistency in Dr Zeman's report (at p 282), where he stated his diagnosis of "Soft tissue injury to knees, low back and neck unrelated to the accident". [Emphasis added] I am unable to determine whether this was a typographical error or an unexplained inconsistency within the report. That matter remains unexplained as Dr Zeman was not called to give oral evidence: Exhibit "3", pp 272-284; 74. On 27 May 2013, the plaintiff was seen by Dr Andrew Bleasel, a neurologist at Westmead Hospital in relation to a seizure following taking carbazine medication. At that time, it was not suggested that the plaintiff's seizures were due to the subject motor vehicle accident: Exhibit "B", p 66; p 261; 75. On 12 June 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Ms Kathryn Caukill, a consultant occupational therapist. Her brief (as is evident from the copy of her letter of instruction at p 44) was to examine the plaintiff at his home, obtain a full account of his history, and provide her opinion regarding first, the plaintiff's care needs, and secondly, whether he was capable of driving a motor vehicle. In the opinion section of her report (at p 33), she noted that the plaintiff reported an inability to perform tasks in his usual manner "including driving" but she appears not to have addressed the second question asked of her, on that topic, by the solicitor for the defendant. She noted her view that the plaintiff was very fearful and avoidant of movement which he perceives would exacerbate pain, and that his activities have become contained to a minimally demanding routine. She also stated "with respect to personal and instrumental activities of daily living, I was not able to obtain a clear understanding of the nature of Mr Dharamdas' functional limitations". Her subsequent recommendations were "aimed at maximising Mr Dharamdas' capacity for functional independence. Recommendations are made in the context of a response to the opinion and recommendations of Ms Carolyn Grinter". That was not quite the question that she was asked to address. Ms Grinter's report was not in existence when Ms Caukill was instructed on 7 January 2013 (pp44-46). It was later sent to her "for her assistance" by a letter dated 27 February 2013, without identifying any further questions or comments (p47). The comparative analysis of the respective views of Ms Caukill and Ms Grinter will be undertaken in connection with the assessment of the plaintiff's claim for domestic assistance. At this point, as will later emerge in this chronology, it is relevant to note that Ms Caukill subsequently withdrew her recommendations concerning domestic assistance in light of some DVD observation material, which will also be analysed: Exhibit "3", pp 1-49; 76. On 14 June 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 July 2013: Exhibit "B", pp 293-295; 77. On 13 July 2013, a further physiotherapy programme was prepared for the plaintiff to have five treatments up to 1 October 2013 with the aim of enabling him to become fit for suitable part time duties: Exhibit 'B', p 162; 78. On 15 July 2013 at the request of Dr Tejani, the plaintiff was examined by Dr Peter Puhl, a consultant neurologist for an unexplained loss of consciousness, which was thought to represent a focal dyscognitive seizure or focal seizure with secondary generalisation. Dr Puhl considered this could have been triggered by bowel preparation for a colonoscopy, or from a head injury in the accident with a probable brief loss of consciousness: Exhibit "B", pp 163-164; pp 429-430. The latter explanation can be discounted as there was no convincing evidence of the plaintiff having sustained a head injury involving a loss of consciousness. 79. On 16 July 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 August 2013: Exhibit "B", pp 296-298; 80. On 22 July 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 August 2013: Exhibit "B", pp 169-170; 81. On 8 August 2013, MAS Assessor Dr Philippa Harvey-Sutton issued a MAS Certificate which certified that the plaintiff's left trigger thumb, which required flexor tendon tenolysis, the plaintiff's right shoulder, which required rotator cuff repair, and the soft tissue lumbar spine injury, gave rise to a permanent impairment of 11 per cent: Exhibit "G"; 82. On 13 August 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 September 2013: Exhibit "B", pp 177-178; pp 299-301; 83. On 16 August 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 October 2013: Exhibit "B", pp 168-173; pp 302-304; 84. On 27 August 2013, at the request of Dr Tejani, the plaintiff underwent MRI scanning of his lumbar spine, which was reported as showing at L5/S1 broad based disc bulge and a right paracentral protrusion which impinged on the right S1 nerve root on weight bearing. Disc bulges were also noted at other levels, but not associated with nerve impingements: Exhibit "B", p 67; 85. On 28 August 2013, MAS Assessor Dr Hunter Fry, a plastic surgeon, assessed the plaintiff's scarring to the left thumb, and his abdominal endoscopy scars, at 2 per cent: Exhibit "H"; 86. On 6 September 2013, a further physiotherapy plan was established, the fourth in a series of such plans: Exhibit "B", pp 68-70; 87. On 9 September 2013, MAS Assessor Alex Apier, a consultant psychiatrist, assessed the plaintiff's post-traumatic stress disorder with depression, at greater than 10 per cent impairment: Exhibit "J"; 88. On 14 September 2013, at the request of the solicitor for the defendant, Ms Caukill provided a supplementary occupational therapy commentary based on a MAS Certificate from Dr Harvey-Sutton and the report of Dr Zeman. Based on those opinions, which suggested the plaintiff's gastro-intestinal and right wrist problems were not related to the subject accident, Ms Caukill revised her earlier opinions. In my view, that approach was flawed for reasons that will be identified when analysing the reliability and acceptability of opinions on matters of dispute in the medical and allied evidence: Exhibit "3", pp 50-57; 89. On 15 October 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 21 November 2013: Exhibit "B", pp 181-183; pp 305-307; 90. On 7 November 2013, at the request of Dr Tejani, the plaintiff was examined by Dr Randolph Gray, a spine surgeon, in relation to his problem of continuing and increasing lower back pain radiating down the posterior aspect of his thighs and calf, the left leg being more affected than the right. Dr Gray noted the MRI signs of degeneration at L5/S1 with broad based disc herniation causing stenosis. He suggested the plaintiff had not yet had a proper course of rehabilitation and physical therapy to manage those problems, and he also suggested that a decompression procedure at L5/S1 would only relieve the leg symptoms, and not the mechanical backache: Exhibit "B", pp 160-161; 91. On 14 November 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 December 2013: Exhibit "B", pp 165-167; pp 184-186; pp 308-310; 92. On 5 December 2013, the plaintiff was re-examined by Dr Drummond. He was provided with further material for consideration at this time. He commented that examination revealed the plaintiff was not compliant with examinations of the left thumb and right wrist. Whether or not this could have been due to an apprehension of pain was not stated. He commented that the 27 August 2013 MRI of the plaintiff's lumbar spine revealed a significant lumbosacral disc prolapse, with degenerative and age related changes. How much of that degeneration could have been due to the subject accident was a matter that was not evaluated. He identified abnormal illness behaviour in the plaintiff in the context of "exaggerated pain" and restriction of movement, not compatible with pathology. He suggested psychiatric treatment to improve the plaintiff's perception of disability, otherwise the plaintiff's current physical symptoms (which he recorded at pp 95-96) would continue indefinitely. He considered the plaintiff was unfit for work. He agreed (at p 102) with Dr Harvey-Sutton's assessment that the plaintiff's right wrist should be excluded from the consideration. For reasons that will be made plain, I do not accept that opinion: Exhibit "3", pp 94-105; 93. On 5 December 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Peter Slezak, a consultant physician. Dr Slezak focussed upon the plaintiff's gastrointestinal and diabetes problems, his medications (at pp 250-251), and on life expectancy issues. He used his access to the life tables maintained by Hannover Life Reinsurance of Australasia Limited, to assess the plaintiff's life expectancy to be a further 10 - 13 years, from December 2013. The agreement of the parties has made it unnecessary to further analyse that opinion: Exhibit "3", pp 249-252; 94. On 20 December 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 29 January 2014: Exhibit "B", pp 311-313; 95. On 30 January 2014, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 28 February 2014: Exhibit "B", pp 314-316; 96. On 2 February 2014, at the request of the solicitor for the defendant, Dr Slezak provided a commentary in which he stated that, on viewing workers' compensation records and general practitioner's records, he did not alter his previously stated opinion: Exhibit "3", p 253; 97. On 4 February 2014, at the request of the solicitor for the defendant, Dr Drummond prepared a commentary. For that purpose, he was provided with a "collection of documents", and the report of Dr Wallace dated 5 September 2012. He provided a short commentary in which he said he did not alter his earlier opinions dated 7 January 2013 and 5 December 2013: Exhibit "3", p 106; 98. On 4 February 2014, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Lewin. The solicitor for the defendant had asked Dr Lewin to provide a commentary on 10 questions. Dr Lewin noted some historical variations arising from other psychiatric opinions. Dr Lewin noted the plaintiff was experiencing sleeping difficulties. He observed that the plaintiff appeared downcast, dispirited and sad, and displayed objective evidence of personal neglect, and was pain focussed. Dr Lewin noted that on this second examination, that there was a clinical worsening of the plaintiff's presentation. He said that the condition of a chronic post-traumatic stress disorder and morbid depression was evident. He said the plaintiff now had a major depression with melancholic features. He considered the plaintiff to have a vulnerable personality and an obsessional make-up. There was no evidence that the depressive illness he diagnosed could have occurred irrespective of the accident. Dr Lewin considered that, having regard to the plaintiff's meticulous nature, his troubled state of mind, his lack of confidence, his subjective experience of mental slowing, and his memory functioning, the plaintiff was unfit for work as a direct result of the diagnosed psychiatric condition, and that it was unlikely that he would again become fit for work: Exhibit "3", pp 153-163; 99. On 18 February 2014, at the request of the solicitor for the defendant, Ms Caukill provided the defendant's solicitor with a supplementary occupational therapy commentary on some materials provided to her. These comprised some incompletely specified Allianz workers' compensation documents, Dr Wallace's report dated 5 September 2012, and some treating doctors' records. Ms Caukill did not re-examine the plaintiff for the purpose of preparing the requested commentary. She did not change her opinion dated 12 December 2013: Exhibit "3", pp 58-62; 100. On 4 March 2014, at the request of Dr Tejani, the plaintiff was examined by Dr Charles New, a consultant orthopaedic surgeon, who gave consideration to the plaintiff's complaints of debilitating pain in his right shoulder, both wrists and right knee, with bilateral leg pain from the back, the latter exacerbated by walking, changing positions, coughing, sneezing and prolonged sitting. The clinical examination revealed a protected sitting attitude, with an antalgic gait favouring the right side. Dr New considered the plaintiff had a right sided radiculopathy consistent with L5/S1 disc prolapse, with a guarded prognosis: Exhibit "B", pp 75-78; 101. On 9 April 2014, at the request of Dr New, the plaintiff underwent nerve conduction studies of his lumbar nerves in view of the history of back pain and an antalgic gait. Dr Dowla, the testing neurologist, reported no evidence of generalised focal or generalised neuropathy but there was some evidence in keeping with right S1 radiculopathy: exhibit "B", pp 71-72; 102. On 22 April 2014, the plaintiff was re-examined by Dr Deveridge, who reiterated the opinions he expressed in his earlier report dated 6 June 2012. He stated that, in his opinion, the plaintiff's prognosis remained guarded. He also reiterated that the plaintiff remained permanently unfit for work: Exhibit "B", pp 373-380; 103. On 28 April 2014, at the request of the solicitor for the defendant, Dr Slezak provided a commentary on the plaintiff's other medical conditions. He commented that the plaintiff had managed to work for 14 years following his diagnosis of type 2 diabetes mellitus. He said that he could not possibly state with confidence that the plaintiff would have developed vascular and cardiovascular complications of that condition before the age of 65 years: Exhibit "3", pp 254-255; 104. On 1 May 2014, Dr Bleasel saw the plaintiff at the Westmead Epilepsy Unit, where he observed one of his partial seizures. A neuropsychological report was suggested: Exhibit "B", pp 73-74; pp 262-263; 105. On 8 May 2014, the plaintiff was re-examined by Dr Westmore, who considered that at that time, the plaintiff's post-traumatic stress disorder had resolved, but he nevertheless had a pervasive depressive disorder resulting in a provisional diagnosis of a chronic major depressive disorder, with a differential diagnosis of a moderate to severe adjustment disorder with depressed and anxious mood. He noted low levels of energy, a loss of motivation and morbid thoughts of self-harming, and loss of self-esteem. He noted the development of epilepsy but made no connection between that emergent condition and the subject accident: Exhibit "B", pp 395-403; 106. On 28 May 2014, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Richard Sekel an occupational physician. To assist him in that examination, Dr Sekel was provided with "the large box of documents contained in 6 large ring binders". Those documents were not completely identified. He spent 3 hours interviewing the plaintiff and spent "well in excess of 12 hours" preparing his somewhat complicated report. Plainly, it was a long day's work for him. His report contains numerous comments with emphasis added. He recorded a history from the plaintiff that in the events of the accident, his right hand and arm were outstretched in an effort to try and fend off the collision. Without reliable evidence, Dr Sekel inferred that Dr Puhl was of the view that the plaintiff's seizures were not due to the subject accident. That interpretation will be revisited in the consideration of Dr Puhl's report. Dr Sekel argued that the plaintiff's right wrist problem pre-dated the subject accident. In view of the described mechanisms of the accident, where the plaintiff put out his right hand in anticipation of the impending impact, I do not accept that view. It is not supported by any other medical opinion in this case. He was of the opinion that there were other reasons for the plaintiff being unable to work, as the following extract states: "6. For some years he has had an increasing number of other significant general medical conditions that cause him to have greater difficulty remaining at work and undertaking domestic assistance, even if the subject motor vehicle accident had not occurred. These included cardiac disease (for which he was attending a cardiologist for several years before the accident and the records indicate it was becoming increasingly difficult to manage), peptic symptoms for many years (for which he had been attending a gastroenterologist for several years before the subject accident), and an epileptic seizure 1(quarter symbol) years ago while undergoing bowel preparation for a colonoscopy, most likely precipitated by low sodium due to the bowel preparation." [Exhibit "3", p 194 - emphasis is as appears in the report] In the opinion section of his report (between pp 195-202), Dr Sekel commented on a number of the plaintiff's claimed accident-related problems. Dr Sekel accepted the accident caused the plaintiff's trigger left thumb problem (at p 195), and the rotator cuff tear of the right shoulder (at p 186). He considered (also at p 196), that the plaintiff exhibited abnormal illness behaviour in relation to the right shoulder, and without reliable evidence, he concluded "it is far more likely than not that Mr Dharamdas is able to mobilise his right shoulder through significantly greater ranges than he claims, and that he does not have the degree of discomfort in the right shoulder than he claims". Without there being any evidence of Dr Sekel having fairly put his belief in that regard to the plaintiff for comment, especially in the context of pain or anticipation of pain, I am not prepared to accept that cited opinion. Furthermore, I found Dr Sekel's argument (at p 197) which suggested the plaintiff's torn right rotator cuff was not caused by the subject accident to be tortuous, and inapt, when compared to the other reasoned specialist clinical opinions. I therefore do not accept his argument to the cited effect. Dr Sekel's argument (at p 197), that the plaintiff would have been restricted in his earning capacity even if the accident had not occurred, is just that, an argument, which must be evaluated in light of the body of medical evidence as a whole, including physical and psychological factors: Exhibit "3", pp 180-203; 1. On 28 May 2014, Dr Sekel issued an addendum report about the plaintiff, in which he drew upon a number of medical annexures. Dr Sekel issued this report as an impairment assessment, in which he stated that all of the plaintiff's injuries have stabilised, as the conditions have become settled, and were unlikely to change, either with or without treatment. He issued an impairment assessment of 1 per cent, related only to the plaintiff's physical problems he listed (at p 205), which did not include scarring because "the scars are almost invisible". That opinion is only of relevance to the threshold or gateway question of whether or not the plaintiff has an entitlement to claim damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90]; Brown v Lewis [2006] NSWCA 87, at [23]. It therefore requires no further analysis: Exhibit "3", pp 204-230 including annexures; 2. On 10 June 2014, Dr New wrote to Allianz in response to that insurer having raised the suggestion that the plaintiff had not at that stage had enough conservative treatment before having the spinal surgery that Dr New was contemplating. Dr New rejected that suggestion, noting that in his view, the plaintiff had exhausted all reasonable conservative options: Exhibit "B", pp 79-80; 3. On 2 July 2014, at the request of his solicitor, the plaintiff was examined by Dr Puhl, who considered that the plaintiff's seizures dated back to shortly after the accident, with "a presumed head injury and probable loss of consciousness" That presumption has not been made out on the evidence at that time: Exhibit "B", pp 431-440; 4. On 31 July 2014, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Grant Walker, a consultant neurologist. Dr Walker's opinion was that, as there was no evidence of a traumatic brain injury, or a loss of consciousness or amnesia, this indicated that there was no connection between the plaintiff's "turns" and the subject accident: Exhibit "3", pp 262-265; 5. On 17 November 2014, Dr Puhl provided a supplementary report, in which he addressed the connection between the plaintiff's epilepsy and the subject accident. Notwithstanding that there was no objective evidence of the plaintiff having a period of loss of consciousness after the accident, Dr Puhl has argued the relevant mechanism is likely related to a contusional injury to the cortex of the brain, leading to localised dysfunction with abnormal electrophysiological function that could serve as a focal trigger for developing seizures. That opinion was not challenged or contradicted: Exhibit "B", pp 441-442; 6. On 1 December 2014, at the request of the solicitor for the defendant, Dr Walker provided a further commentary on the opinion of Dr Puhl, dated 17 November 2014. Dr Walker considered the possibility of the plaintiff developing "post traumatic epilepsy" with little or no loss of consciousness in a "contusional injury". He agreed in conceptual terms that there was such a possibility and concluded, rather emphatically that there was "utterly no evidence" to suggest the plaintiff's "turns" were post-traumatic in origin: Exhibit "3", p 266. That statement must be read in light of his joint subsequent report with Dr Puhl dated 11 October 2017; 7. On 3 June 2015, the plaintiff underwent a coronary artery angiogram following a positive exercise stress test. Some irregularities and narrowing of the arteries were noted, but not being more than 50 per cent: Exhibit "B", p 81; 8. On 31 May 2016, Dr Bleasel wrote to Dr Tejani after seeing the plaintiff again to review his past history of daily unusual seizure episodes, which had by that time stopped. Dr Bleasel noted that an EEG test had been performed in the past and which had shown an epileptiform discharge: Exhibit "9"; 9. On 18 September 2016, at the request of the solicitor for the defendant Dr Slezak provided a commentary on some investigation materials that were provided to him, and also on a court transcript that was not in evidence in these proceedings. In that regard, Dr Slezak noted : "At the outset, I must make mention that Mr Dharamdas did not make any mention whatsoever of his having experienced or developed lower lumbar pain, right wrist joint pain, right elbow pain in the aftermath of the subject accident of 21 January 2011". That circumstance may or may not be due to the nature of the questions asked of him by Dr Slezak. I have no evidence of those matters, so I cannot draw a reasoned conclusion on the significance of that comment as being adverse to the plaintiff's credit; 10. On 21 September 2016, at the request of the solicitor for the defendant, Ms Caukill provided a supplementary occupational therapy commentary based upon some DVD footage and some related extract photographs that had been provided to her for comment. Ms Caukill was asked to consider the transcript of the plaintiff's responses given at a court hearing on 1 December 2014, pp 31-69. She commented, that material "generally corresponds" with the account she obtained from him as to his perception of disability and restrictions. On the evidence before me I am unable to evaluate that assessment for its appropriateness. She then commented that the investigation material that she had been given to review (some 50 minutes of DVD material taken over the course of 3 days, and which related to activity that post-dated her examination of the plaintiff by 27 months) indicated to her that the plaintiff walked with a symmetrical gait, at a normal pace, turning his neck in a normal manner, in contradistinction of when she saw him on 12 June 2013. She then concluded that he had no restriction in walking, "no observable signs indicating pain or restriction" with forward flexion or reaching to ground level, apparently unrestricted use of his right upper limb, no apparent difficulty or restriction carrying light household items, no apparent restriction with function or grasp of the right hand, and she therefore considered the plaintiff had achieved a good recovery of function. She therefore withdrew her earlier recommendations concerning a need for the plaintiff to be provided with domestic assistance: Exhibit "3", pp 63-68. The procedural fairness of that approach will be analysed in due course; 11. On 13 October 2016, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Walker. In that examination, he observed no difference in the plaintiff compared to his examination in 2014. He commented on orthopaedic matters which on the face of the report seemed to be outside the remit of his specialty (at p 269), and he reiterated his view that he remained unconvinced that the plaintiff had genuine epileptic seizures. He said that without an EEG, the diagnosis remained uncertain in his view. He also stated that he did not believe the plaintiff embellishes his problem. He stated the plaintiff "no doubt is in genuine pain and he has no capacity for paid work": Exhibit "3", pp 267-269; 12. On 20 October 2016, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Drummond. For that purpose, he was provided with "documentation" that was not specified. Although Dr Drummond commented (at p 117), on the plaintiff's pre-existing cervical and lumbar intervertebral disc degeneration as being age related pathology that was not influenced by the accident, this did not seem to me to be a complete or definitive causation analysis as to the reason for the plaintiff's symptoms as it did not deal with the question of traumatic aggravation of underlying degenerative changes. This report by Dr Drummond was a gateway analysis for the purpose of applying the Guides to the Evaluation of Permanent Impairment, 4th Edition, which was only relevant to determining whether or not the plaintiff was entitled to claim damages for non-economic loss, and not otherwise. As I read his report, Dr Drummond explained (at p 118), that pathology does not represent symptomatology or restricted range of motion, absent an injury. Dr Drummond considered (at p 118), that the plaintiff's perception of incapacity overwhelmed his ability to function normally, and in the workplace. At that time, the plaintiff was aged 69 years. Significantly, Dr Drummond related the plaintiff's complaints concerning the right shoulder, left thumb, both knees, cervical and lumbar spine, to the subject accident: Exhibit "3", pp 107-123; 13. On 20 October 2016, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Lewin. The solicitor for the defendant had asked Dr Lewin to again consider the plaintiff's psychological or psychiatric diagnosis and prognosis, treatment needs, causation, fitness for work and the need for domestic assistance. Dr Lewin's previous assessment was in February 2014, at which time he considered the plaintiff's melancholic depression and chronic post-traumatic stress disorder gave rise to permanent impairment. The previous observation of personal neglect was not made on this occasion. He considered the plaintiff had a mild degree of cognitive impairment, most likely due to his intake of prescribed narcotic analgesia. He confirmed his diagnosis of melancholic depression, pain disorder, and a chronic post-traumatic stress disorder. At this time, he considered the plaintiff was totally incapacitated for work, and he stated that it was uncertain (at age 69 years) as to whether treatment would alter that assessment: Exhibit "3", pp 164-173; 14. On 13 November 2016, at the request of the solicitor for the defendant, Dr Walker commented on some DVD surveillance material and a transcript dated 1 December 2014 that were provided to him for that purpose. Dr Walker stated (at p 270), that the question of whether the plaintiff had epilepsy, remained entirely uncertain for as long as there was no EEG study available for consideration. Dr Walker commented on the DVD surveillance material by stating (at p 271), that unless there was a marked deterioration from when the DVD material came into existence (in September 2015) and when he saw the plaintiff in October 2016, he considered that his earlier observation that the plaintiff did not embellish his problem, "is clearly wrong". He went on to state : "Clearly, he does embellish his problem for the benefit of the medical and legal profession. His general movements and arm movements indicate no significant disability whatsoever". Those comments require evaluation for reliability. Perhaps Dr Walker meant to say that the plaintiff embellished his problems to benefit himself rather than the medical and legal profession. Be that as it may, I consider that his cited remarks must be viewed with great caution. This is because, first, there is no evidence that Dr Walker gave the plaintiff the procedurally fair opportunity to explain the apparent discrepancy, secondly, the cited quotation, expressed by Dr Walker in qualified and flourishing adjectival terms, is a sweeping statement that indicates little if any reliance should be placed on it. The term "whatsoever" appears to be something of a misnomer, especially considering the plaintiff had a psychiatric diagnosis. Thirdly, in his commentary, Dr Walker does not seem to have considered the possibility that the plaintiff's intake of medication influenced the capacity for the range of movements shown on the DVD footage he saw. For those reasons, I do not accept as reasonable, Dr Walker's comments, which I consider to be unfairly prejudicial absent the elements of analytical consideration I have here identified: Exhibit "3", pp 270-272; 15. On 17 November 2016, at the request of the solicitor for the defendant, Dr Drummond commented on the content of 3 DVD's provided to him, dated 13 September 2015. He concluded (at p 124), that the clinical picture projected by the plaintiff in the examination of 20 October 2016 was completely different to the mobility demonstrated in the 13 September 2015 DVDs. The detail that Dr Drummond focussed his comments on, were that the plaintiff was walking "freely and comfortably" standing erect, without limping, and without a walking stick. He said (at p 125), this was "completely free and apparently comfortable, not the restricted range of motion of 30 degrees shoulder flexion demonstrated during clinical examination". He made the comment that when examined formally, the plaintiff projected a restricted range of motion of the right shoulder, the implication of which, was a contrasting presentation. The apparent logical fallacy of comparing observations on DVD surveillance in 2013 and a clinical examination in 2016 was not explored by Dr Drummond: Exhibit "3", pp 124-125; 16. On 8 December 2016, at the request of his solicitors, the plaintiff was re-examined by Dr Harrison. Dr Harrison noted that the plaintiff uses a walking cane in his left hand to help him feel more secure when walking. He also outlined the plaintiff's history of restricted neck movements, disturbed sleep due to back pain, and shoulder and neck pain, at different times. He also recorded radiation of the back pain to the right leg, and anterior knee pain. Dr Harrison considered that the plaintiff jarred and injured his neck in the accident. He also expressed the opinion that the accident exacerbated degenerative changes in the plaintiff's neck and back, and was substantially responsible for the plaintiff's current condition, with little prospect of improvement: Exhibit "B", pp 336-345; 17. On 13 December 2016, the plaintiff was re-examined by Dr Berry, who considered that the plaintiff would continue to require daily medication both for pain and his digestive tract symptoms of chronic gastritis precipitated by the intake of pain relieving medication. He established a causal connection between those matters and the subject accident: Exhibit "B", pp 422-426; 18. On 14 December 2016, Dr Berry prepared a further report in which he reiterated the contribution of the accident to the plaintiff's need for medication and for the chronic inflammatory changes in his stomach: Exhibit "B", pp 427-428; 19. On 19 December 2016, at the request of the solicitor for the defendant, Dr Lewin provided a supplementary report which commented on a transcript of evidence given by the plaintiff on 1 December 2014. Dr Lewin stated that it contained answers to questions that were essentially consistent with the history he obtained from the plaintiff. Dr Lewin went on to consider observations made by Dr Walker on the epilepsy question, Dr Slezak's comments, in which he considered the materials he saw, contrasted with the plaintiff's presentation in the consulting room when compared to the DVD material, and Dr Drummond's commentary which suggests a pattern in the plaintiff's behaviour of somatisation. Dr Lewin concluded (at p 176), that the material dated September 2015 did not appear consistent with the plaintiff's presentation of persisting depressive symptoms and an overwhelming pain disorder. He could not be certain it was the plaintiff who was seen in the DVD material, but that is not an issue in the case. Dr Lewin went on to fairly state (at p 176), that he has not had the opportunity to put the observations from this data to the plaintiff to hear his side of the story. The most he could say was that there was some evidence of dissimulation. He went on to say that, this data placed some doubt upon the reliability of the reports the plaintiff gave him, and he went on to say that it "is most unlikely that an individual with a morbid depressive condition such as Major Depression with Melancholia would present in the manner demonstrated in the video material in September 2015 when considering the clinical presentation in February 2014 and October 2016". He considered the clinical picture to be not consistent with the material observed in September 2015. If there was some explanation that could have reconciled these two positions, the plaintiff was not given an opportunity to explain this to Dr Lewin. No further examinations of the plaintiff were arranged for Dr Lewin to explore such matters: Exhibit "3" pp 174-177; 20. On 20 December 2016, in clarifying correspondence raised by the plaintiff's solicitor, Dr Harrison considered the symptoms arising from the plaintiff's neck are a much more significant contributory factor to upper limb pain than had previously been considered. He made the connection between the subject accident and the plaintiff's neck problems: Exhibit "B", pp 346-347; 21. On 9 January 2017, at the request of his solicitor, the plaintiff was examined by Professor Daniel Chan a consultant geriatrician and general physician, who considered that an operation on the plaintiff's affected S1 nerve root, if successful, would improve his quality of life. As the result of an agreement between the parties, it is not necessary to examine Dr Chan's opinions on the plaintiff's likely life expectancy: Exhibit "B", pp 443-449; 22. On 24 January 2017, the plaintiff was re-examined by Dr Deveridge, who reiterated the opinions he expressed in his earlier reports. He added that the plaintiff will require ongoing medication indefinitely for his chronic but stable condition. He recommended a number of treatment modalities that will be considered separately in connection with the assessment of that claimed head of damage: Exhibit "B", pp 381-386; 23. On 17 January 2017, at the request of his solicitor, the plaintiff was again examined by Dr New, who reiterated the view the plaintiff remained unfit for work, and he reiterated his view that the plaintiff needed further treatment, emphasised that there had been a premature closure of investigation of the plaintiff's lumbar spine problems and, he suggested that this be re-activated: Exhibit "B"; pp 91-95 24. On 1 February 2017, in response to an email that is not in evidence, Dr Lewin provided the solicitor for the defendant with a further commentary on "further extensive documentation and with video materials recorded in 2015". Dr Lewin added to his previous commentary by stating that the video materials cannot be reconciled with the clinical presentation during the second and third examinations of the plaintiff Dr Lewin had previously undertaken. Dr Lewin further stated that the sort of behaviours seen in the video material, as reviewed in his December 2016 report, are inconsistent with the clinical presentation of melancholic depression. He said that : "These two versions of the facts cannot co-exist". He said that if the behaviour documented in the video materials in September 2015 accurately represents the behaviour of the plaintiff, "then I have been deceived". He went on to say that if this has occurred, he could make no psychiatric diagnosis and it follows that there is no permanent impairment resulting from the motor vehicle accident: Exhibit "3", pp 178-179; 25. On 15 February 2017, the plaintiff was re-examined By Dr Westmore, who reiterated his earlier diagnosis, referring to his reports dated 10 October 2012, 6 May 2014 and 8 February 2017: Exhibit "B", pp 404-409; 26. On 15 February 2017, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Sekel. In his report of that examination, Dr Sekel confirmed all of the opinions he had expressed in his earlier reports, without alteration. He stated that the plaintiff's physical problems ought not have prevented him from returning to his normal work within two months of 4 November 2011, namely early January 2012, as a "maximum". I do not accept that opinion as it is against the preponderance of the medical evidence and it is contrary to the effect of the medical certificates of Dr Tejani, which were not the subject of challenge. Dr Tejani was in my view, in a far better position than Dr Sekel to make reliable assessments of the plaintiff's fitness for work. His opinion deals only with physical matters, and not any psychological or psychiatric considerations: Exhibit "3", pp 231-242; 27. On 23 February 2017, Dr New provided a commentary on the report of Dr Slezak concerning Dr Slezak's opinion on the plaintiff's reduced life expectancy, said to be due to his pre-existing vascular disease. As a result of agreement between the parties, it is not necessary to further analyse those views: Exhibit "B", pp 96-97 28. On 5 March 2017, at the request of the solicitor for the defendant, Dr Slezak provided a commentary on some of the plaintiff's medical records that he had reviewed for that purpose. That further material related to some pathology test results, and the results of a CT coronary angiogram that was undertaken on 4 January 2008 involving the left anterior descending coronary and a related arterial branch. He stated that his earlier opinions and sentiments set out in his report dated 5 December 2013 remained unaltered: Exhibit "3", pp 258-259; 29. On 23 March 2017, Dr Sekel issued a supplementary report in which he commented upon some DVD evidence dated 17 September 2015 "and some recent reports". Dr Sekel reviewed his reports dated 28 May 2014 and 15 February 2017 in light of the DVD material that the solicitor for the defendant had provided to him for comment. His commentary appears at pp 243-245, with stated times. Those matters will be analysed separately. Dr Sekel concluded (at p 245), that the plaintiff "demonstrated completely normal ranges of free flowing movement of all the joints where he claims that he sustained injuries from the subject accident, including his neck, right shoulder, right wrist and both knees… The video also indicated that the extreme and bizarre disabilities that he claimed to be demonstrating during the physical examinations were not genuine". That view must be read in light of the products of a joint meeting between Dr New, Dr Harrison and Dr Drummond on 4 October 2017, as well as the products of an earlier meeting between Dr Lewin and Dr Westmore on 5 May 2017: Exhibit "3", pp 243-248; 30. On 30 March 2017, at the request of the solicitor for the defendant, Dr Slezak provided a commentary on the reports of Professor Chan and Dr New. Dr Slezak's opinion on the plaintiff's life expectancy as expressed in his report dated 5 December 2013 remained unchanged notwithstanding those materials. The plaintiff's probable life span requires no further reconciliation or analysis in light of the agreement between the parties on that topic. Exhibit "3", pp 260-261; 31. On 5 May 2017, a conclave meeting took place between Dr Westmore and Dr Lewin. In that meeting they agreed that: (1) The plaintiff's chronic post-traumatic stress disorder was largely in remission; (2) he had an untreated melancholic major depressive disorder and possibly, mild cognitive impairment, the likely explanation being the chronic use of prescribed narcotic medication; (3) the plaintiff needed referral for psychiatric treatment and pain management; (4) The plaintiff was unemployable both generally, and on account of his psychiatric condition; (5) the plaintiff's presentation over time, was of being downcast, with psychomotor retardation: Exhibit "B", pp 450-455. The experts went on to consider the plaintiff's "pattern of behaviour in the videos". The videos were not further identified. The experts observed there was a divergence between the plaintiff's behaviour that was observed in "the video" and the observed "behaviour in the psychiatric consulting rooms" Exhibit "B", pp 454-455. Their analysis and commentary is of great relevance to the resolution of the question of the plaintiff's credit, and I propose to cite their commentary on the video in my evaluation of their evidence; 32. On 17 May 2017, MAS Assessor Dr Matthew Jones, a consultant assessed the plaintiff as having a chronic adjustment disorder with depressed mood: Exhibit "K". He considered that there were no major inconsistencies in the plaintiff's presentation or his narrative of his problems. He had the reports of Dr Apler, Dr Teoh, Dr Westmore and Dr Lewin before him for his assessment. He accepted the plaintiff fulfilled the criteria for the diagnosis of chronic adjustment disorder with depressed mood. He allocated an assessment of 7 per cent impairment in accordance with the applicable MAS guidelines; 33. On 7 July 2017, the plaintiff was assessed by MAS Assessor Ian Cameron who in his further certificate determined that the plaintiff had sustained musculo-skeletal soft tissue injuries to his left thumb, right shoulder, cervical spine and lumbar spine, and that those injuries have resulted in a permanent impairment: Exhibit "E"; 34. On 31 July 2017, MAS Medical Assessor Kathryn Williams issued a further combined MAS Certificate in which it was determined that the plaintiff's permanent impairments did not exceed 10 per cent: Exhibit "F"; 35. On 4 October 2017, Dr Slezak and Professor Chan met and prepared a joint report in which they agreed that the plaintiff's further anticipated life expectancy was 10 years, plus or minus one year: Exhibit "7"; 36. On 4 October 2017, the orthopaedic surgeons, Dr Drummond, Dr Harrison and Dr New, met and prepared a joint report in which they considered the plaintiff's work restrictions. Dr New maintained his view that the plaintiff was not fit for employment at all: Exhibit "6", p 4. Dr Drummond believed that the plaintiff was generally fit for employment involving bench work without restriction, but there should be restrictions on lifting and spine flexion: Exhibit "6", p 2. Dr Harrison agreed with Dr Drummond, but qualified that agreement, he was of the opinion that the plaintiff's lack of condition, his age, and the "psychological aspects" of the plaintiff's injury would constrain the plaintiff with work opportunities: Exhibit "6", p 3. The experts expressed views on the plaintiff's treatment needs (at Exhibit "6", pp 6-8), which will be addressed in the assessment of damages. The experts expressed disparate views on the extent of the plaintiff's accident-related orthopaedic disabilities, and their effects after viewing "the DVD", which was not otherwise identified except as to the description of the plaintiff walking and carrying what was described as a light box that was presumed to be not heavy. The range of views expressed were that: 1. Dr Drummond believed that the plaintiff was "just feigning and generating symptoms" (about his walking and lifting his right hand up to shoulder level) which are not a reflection of the underlying pathology: Exhibit "6", p 5; 2. Dr Harrison accepted that the plaintiff's lumbar spine, his neck and his left thumb injury were accident-related, and that the right shoulder problem was still an issue, although he agreed with Dr Drummond "that there is a disproportion between the subject incident sequelae and the plaintiff's ongoing complaints, leaving out the psychological ones": Exhibit "6", pp 5-6. Dr Harrison noted the DVD showed the plaintiff walking with an antalgic gait, with a limp favouring his right leg: Exhibit "6", p 5; 3. Dr New saw the plaintiff limping on the DVD. He noted a positive Trendelenburg sign which he said should not be discounted. He did not see anything on the DVD "which demonstrated a dramatic deviation from the complaints that the plaintiff had". He noted that with back complaints and related leg complaints, scope should be allowed for some day-to-day variations in levels of activity: Exhibit "6", p 6; 4. On the question of the plaintiff's shoulder injury, Dr Harrison "struggles with the inconsistency between what he observed when examining the plaintiff [which he did on 31 May 2012 and 8 December 2016] versus what he observed on the video": Exhibit "6", p 10; 5. Dr New noted, perspicaciously in my view, "that we cannot see and feel other people's pain and it is a very subjective way of looking at things" to dismiss a patient's complaints in that regard. He believed the plaintiff's decreased range of neck movements and the back injury (which was not just soft tissue) were genuine, and seriously limited the plaintiff's activities: Exhibit "6", p 10; 1. On 11 October 2017, the neurologists, Dr Puhl and Dr Walker, met and prepared a joint report: Exhibit "8". Dr Puhl's impression was that there may be a causal relationship between the plaintiff's accident and the subsequent diagnosis of epilepsy. Dr Walker did not believe there was necessarily such a relationship, and he then went on to say that he believed there was no such relationship. Both experts agreed that diagnosis would depend on what was shown in an EEG study.

[23]

DVD footage taken on 12 September 2015 - 44 minutes 50 seconds

The footage taken on 12 September 2015 is extensive. It covers what I analyse for convenient reference purposes, as being eleven basic segments, as follows.
The first segment in this series shows the plaintiff standing outside of his house, in various stances, with his hands resting on his hips, then in his pockets, then momentarily raising his right hand to his forehead, and then walking back to his house in a manner that appeared to me to involve him limping slightly.
The second segment in the series shows the plaintiff undertaking what ended up being an extended walk, with pauses. In that walk, he was seen, variously swinging his left arm, having his right hand in his pocket, then holding a small object, such as a glasses case or a wallet in his left hand, then scratching his ear with his right hand and then leaning with his right forearm on a rendered fence for an extended period.
The third segment in the series shows the plaintiff walking to a shop. On the way, he twice raised his right arm and hand for a short time to point at something in the distance. He did so with his arm momentarily at shoulder height, also gesticulating briefly with his right hand as he did so. In that third segment, he also stood near a bus stop, outside some shops.
The fourth segment in the series shows the plaintiff variously, walking in a shopping centre, with an apparent slight limp, then walking into a carpet shop, favouring one leg, and then walking into an electronics shop, apparently limping or favouring one leg, with a shopping bag slung on his left shoulder. He displayed several activities such as gesticulating with his right hand, visually inspecting some goods in the store, speaking to a sales person, inspecting a vacuum cleaner, and using his mobile telephone in his right hand, holding it to his right ear for an extended period of time. He then purchased what appeared to be a small vacuum cleaner which was boxed. He then awkwardly handled the box, which from the way he handled it, did not appear to be heavy, holding it in his right arm, and he then walked out of the store, apparently limping.
The fifth segment in the series shows the plaintiff carrying the boxed vacuum cleaner in the bent crook of his left arm, and apparently limping slightly. He then walked in the street with the box still in his left arm extended, crossed the road, and then changed the position and his grip of the box, to hold it in the bent crook of his right arm. This segment shows an extended period of some minutes of the plaintiff walking on the pavement whilst carrying the box, but by now holding the box against his abdomen, obliquely, and hugging it using both arms for obvious support.
The sixth segment in the series shows that the plaintiff at some stage paused whilst walking on the pavement, where he found some binding tape, and he then spent some minutes first leaning in forward flexion, and then in a more pronounced bend forward, as he repeatedly tried, and eventually succeeded, in fashioning a tied carrying handle around the box with that tape. He then continued walking for some time, holding the box in his straightened right hand by his side using the tie handle that he had fashioned.
The seventh segment in the series shows that the plaintiff then walked into a car park and then into a shopping centre, whilst continuing to hold the box by the tie handle. He occasionally briefly swung his right arm whilst walking. He walked into an appliance store, spoke to a sales assistant and occasionally gesticulated with his right hand. He then walked out of the store, with what appeared to be a slight right limp.
The eighth segment in the series shows the plaintiff standing outside a furniture store using his right hand to hold his mobile telephone to his ear. He then proceeded to walk, within the shopping centre, whilst apparently limping, and continuing to use his mobile telephone in his right hand.
The ninth segment in the series shows that the plaintiff then sat, and continued to sit, for a prolonged period of time, outside an electrical goods store, occasionally turning his head from left to right. During that time, he was apparently waiting for his wife, who it appears, was shopping in the vicinity.
The tenth segment in the series shows that the plaintiff eventually got up from his seated position, and then walked around within the shopping centre. This footage appeared to me to be discontinuous, because some scenes showed the plaintiff walking in the shopping centre whilst still holding the box handle in his right hand, and inexplicably, at other subsequent times, he walked around without evidence of the box in his hands. He is eventually seen to walk out of the shopping centre and car park with the box handle in his right hand.
The eleventh segment in the series shows the plaintiff standing at a bus stop, then standing in a bus. The photographer appears to have then followed the bus to continue to film. The plaintiff is next seen walking in the street with the box handle held in his left hand, then entering the gate of his house, whilst using his right hand to open the gate.

[29]

(7) Evaluation of expert commentaries on surveillance footage

It is plain from the detail of the chronology of medical and allied reviews set out at sub-paragraphs (113) and (114) of paragraph [66] above, that the dates on which the defendant's surveillance material was obtained, namely 11, 12 and 13 September 2015, and for that matter, 3, 5, 6 and 7 March 2017, do not contemporaneously coincide with any medical examinations undertaken by the defendant's medical and allied experts who have provided critical commentaries on the content of that material.
In my view, the conclusions expressed within the commentaries from the defendant's experts on the significance of the DVD surveillance footage comprising Exhibits "1" and "2" must be considered in that light. I consider that the absence of such contemporaneous examinations by those commentators necessarily limits the reliability of the critical commentaries to self-evident factual matters, unless it can be established that the experts, in their commentaries, by reasons stated, have brought to bear in their analyses, matters of medical expertise.
It seems tolerably clear that the DVD surveillance materials raise factual interpretations for consideration. As I read them, the commentaries, as framed, do not expressly seek to rely upon, or do not seek to invoke the existence of an expertise in making those factual interpretations. In my view, the consequence of that conclusion is that the experts are in no better position than the Court to consider and to make an evaluation of the factual matters arising for interpretation from within the DVD surveillance footage.
In my view, the video surveillance material is not of such a character that it compels the drawing of an inference that the plaintiff's ability to carry out the activities shown there, such as they were seen, also existed at an earlier point in time, suggesting that the plaintiff was feigning or exaggerating his claimed disabilities, either at earlier or at later medical examinations, as has been suggested by the defendant.
There is a heavy evidentiary onus on medical experts who make such allegations, which is tantamount to asserting a fraudulent misrepresentation for monetary gain. Cogent reasons are required to sustain the validity of such opinions: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). I shall return to this point after analysing the reliability of the commentaries on that material.
Of overarching relevance to the issues to be determined in this case, is that the video surveillance material does not suggest that in 2015, or beforehand, the plaintiff was at any stage after the subject accident, fit for his pre-accident work duties.
Only one medical expert, Dr Richard Sekel, has made a suggestion to that effect, and the reliability of his comments in that regard must be considered and evaluated in terms of whether his opinions in that regard meet the reasoning standard required by UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).
The consideration of the suggestion that the plaintiff has exaggerated his disabilities must be evaluated alongside the consistent pattern of unfitness for work certificates issued by Dr Tejani, and the periodic assessments made by the workers' compensation insurer, to continue to pay the plaintiff weekly workers' compensation payments until he was in his 66th year: Exhibit "B", p 471.
The defendant did not seek to challenge the successive and numerous certificates Dr Tejani issued to the plaintiff certifying that he was unfit for work. The defendant did not suggest to the plaintiff that he had successively feigned disability when seeing Dr Tejani for the purpose of obtaining those certificates of unfitness. Accordingly, I identify the reasonable working hypotheses that Dr Tejani used her clinical acumen when making those assessments, and that it is unlikely that over time, the plaintiff would have been able to deceive her on the numerous occasions identified in the sub-paragraphs of paragraph [66] above, when she made those assessments.
The experts who provided commentaries which considered and interpreted the factual matters seen on the DVD surveillance footage did so in the following sequence: 1. 18 September 2016 - Dr Slezak; 2. 21 September 2016 - Ms Caukill; 3. 13 October 2016 - Dr Walker; 4. 17 November 2016 - Dr Drummond; 5. 19 December 2016 - Dr Lewin; 6. 1 February 2017 - Dr Lewin; 7. 23 March 2017 - Dr Sekel; 8. 5 May 2017 - Dr Westmore and Dr Lewin, jointly; 9. 4 October 2017 - Dr Drummond, Dr Harrison and Dr New, jointly.
In the paragraphs that follow, I set out my evaluation of the aptness and applicability of the interpretations by those commentators concerning the plaintiff's activities. My evaluation proceeds according to a logical and commonsense analysis, in the same chronological sequence in which the comments were made, and with the focus of the requirements of UCPR R 31.27(1)(c) and Sch 7 cl 5(1)(c).

[30]

18 September 2016 - Dr Slezak's surveillance commentary

Dr Slezak's commentary on the DVD material appears at Exhibit "3", pp 256-257.
Dr Slezak took the view that a comparison of the transcript of evidence the plaintiff gave on 1 December 2014, and what he saw on the DVD surveillance footage dated September 2015, indicated to him that the DVD material "contradicts" the plaintiff's "alleged discomforts/symptoms", as noted at the hearing on 1 December 2014: Exhibit "3", pp 256-257.
In my view, that opinion is problematic insofar as it is sought to be used as a criticism of the veracity of the plaintiff's claim, and of his evidence, without Dr Slezak having questioned him on relevant aspects that arise in an evaluation of that material. It is difficult to see how that material could serve to contradict the plaintiff's statements of experiencing discomfort and symptoms without Dr Slezak knowing whether or not the plaintiff was, at the relevant times, assisted in his activities by having taken pain relieving medication or whether the activity seen was within a range of variables that influenced the plaintiff's activity levels: T100.25; T135.30.; T160.30
The apparent basis for Dr Slezak's stated opinion was that the DVD recording reveals the plaintiff "to walk freely, swing his right upper limb without any suggestion of discomfort or limitation", to "gesticulate freely", to "elevate his right arm above shoulder heights without any suggestion of discomfort", as well as being able to "walk freely carrying a small bag in his right hand": Exhibit "3", p 256.
I find myself unable to agree with aspects of Dr Slezak's factual observations and the conclusions he has drawn are open to serious and fundamental doubts, as follows.
First, the description "walk freely" completely overlooks what appears to me to be an obvious limp or tilted gait, elsewhere described as an antalgic gait, that the plaintiff exhibited in that surveillance footage. That is irrespective of whether the plaintiff was in fact free of restriction or discomfort at the relevant time.
Secondly, and on an ordinary logical and fair analysis, it is difficult to see how evidence given on 1 December 2014, without specific exploratory questions which seek to clarify the content and the context of what was there stated, could be reasonably said to be contradicted by activity seen on a video recording 9 months later in time.
Thirdly, without Dr Slezak having questioned the plaintiff on whether he had experienced discomfort associated with the described activity upon which he based his comments critical of the plaintiff, his description that there was no "suggestion of discomfort or limitation" is no more than an unexplored and an unproven assumption on his part. In my assessment that is not a satisfactorily reasoned conclusion within the reasoning of UCPR r 31.27(1)(c) or UCPR Sch 7 cl 5(1)(c). The cited statement by Dr Slezak is therefore unconvincing and unpersuasive.
Fourthly, without Dr Slezak having provided the plaintiff with the fair opportunity of asking him questions seeking explanations on those matters, I consider that it would be procedurally unfair to the plaintiff, for the Court to place reliance on that opinion, as it is inherently apt to be misleading, and therefore unfairly prejudicial to the plaintiff: s 136 of the Evidence Act 1995. The description of movements without the suggestion of discomfort is an argument that assumes an equivalence that has not been explained or established by Dr Slezak.
For each of the above reasons, independently of the other, I do not accept Dr Slezak's cited interpretation of the plaintiff's activities following his viewing of the video surveillance material.

[32]

13 October 2016 - Dr Walker's surveillance commentary

Dr Walker's commentary on the DVD material appears at Exhibit "3", pp 370-371.
Although not entirely clear, Dr Walker was apparently asked to undertake the same assessment tasks that were asked of Dr Slezak. The letter of instruction which generated Dr Walker's report dated 3 November 2016 was not in evidence.
Dr Walker interpreted the September 2015 DVD surveillance footage to show that the plaintiff was seen to move his arms freely, and point in the air which demonstrated "completely normal abduction of the shoulder" and that he was walking without the aid of a walking stick, as he was seen to use when Dr Walker examined him on 13 October 2016. He then stated the plaintiff was clearly embellishing his problem and concluded that his "general movements and arm movements indicate no disability whatsoever": Exhibit "3", p 271;
I am unable to accept the sweeping nature of Dr Walker's opinions concerning alleged embellishment, as cited above. This is not only because of the sweeping nature of that last cited comment, but also for the reasons that follow.
First, Dr Walker seems to have limited his consideration of disability to the question of movement, without a consideration of whether movement was associated with pain. This must necessarily be a one-sided and incomplete evaluation on his part, where no consideration was given to the possibility that the activity seen was aided by the effects of medication: T100.25; T135.30; T160.30. In his report dated 13 October 2016, and in his earlier report dated 31 July 2014, he recorded his testing of pain in the plaintiff's right shoulder: Exhibit "3", pp 263, 267. Dr Walker's cited comment about the plaintiff having completely normal abduction of the shoulder is made without any investigation or apparent consideration of whether the movements were associated with any pain. In his commentary dated 3 November 2016, he makes no mention of pain in discussing disability. I therefore consider that he has based his conclusion on what I find to have been an incompletely reasoned comparison that does not include a balanced discussion of the relevant factors: UCPR r 31.27(1)(c); Sch 7 cl (1)(c).
Secondly, Dr Walker's cited expression that the plaintiff walks "quite freely" does not accord with my own factual observation of the DVD surveillance footage where the plaintiff is seen on the video material to be walking with a limp.
Thirdly, there was no opportunity provided to Dr Walker to pursue exploratory or explanatory questioning of the plaintiff to seek to clarify as to why the plaintiff was walking without a stick in September 2015 as distinct from when Dr Walker saw him in 2016. This is a relevant consideration because the evidence is that the plaintiff used the stick for security but did not always use it. Furthermore, Dr Walker appears not to have given any consideration to the weight of the object the plaintiff was seen to be carrying (2.3 kgs), or whether the plaintiff was, for example, taking pain relieving medication at the relevant time: T100.25; T135.30; T160.30. It is not to the point that the commentary was requested without a medical examination. There was no impediment to prevent an expert seeking that opportunity by requesting it from the briefing party.
For the above reasons I find that I cannot accept the sweeping terms of Dr Walker's rejection of the plaintiff's veracity. I give no weight to his commentary on the DVD footage comprising Exhibits "1" and "2", because it appears that he failed to detect or to mention the fact that the plaintiff was limping when seen in that footage, which I consider to be a fundamental matter of significance.

[33]

17 November 2016 - Dr Drummond's surveillance commentary

Dr Drummond's commentary on the DVD material appears at Exhibit "3", pp 124-125.
Dr Drummond's evaluation was stated to have been limited to his review of the video surveillance on 13 September 2015: Exhibit "3", p 124. The letter of instruction to Dr Drummond (which apparently also referred to the transcript of evidence given by the plaintiff at the first trial on 1 December 2014) was not tendered.
Dr Drummond stated (at p 124), that the plaintiff was seen to walk "freely and comfortably standing erect without limping and without using a walking stick", and (at p 125), pointing "up equivalent to flexing the right shoulder through 130 degrees" which was "completely free and apparently comfortable, not the restricted range of motion of 30 degrees shoulder flexion demonstrated during the clinical examination in October 2016", and also (at p 125), "carrying a box under his right arm without apparent difficulty", and being able "to flex forward from the waist beyond 90 degrees reaching to the box and reaching out with his hands to tie the tape with the hands moving freely above shoulder height".
It is not entirely clear how, and Dr Drummond has not explained how, he was able to arrive at his stated measurements of the plaintiff's shoulder movements as shown on the video material as being equivalent to the kind he measured with stated accuracy in the clinical setting. Absent such an explanation, I do not see a reliable equivalence between those two processes of measurement. If there is an approximate equivalence, it could only be a rough estimate, which, absent explanatory evidence, seems to me to be a relatively unsound basis of comparison for the purpose of supporting criticisms of the kind that Dr Drummond made of the plaintiff.
Dr Drummond's interpretative comment was that the plaintiff was, when examined in 2016, projecting a restricted range of motion "of the right shoulder and his general function" in the formal clinical setting compared to the video material taken in September 2015. The logical dissonance of that comparison in terms of its lack of reliability is obvious.
Dr Drummond's use of the term "general function" was not sufficiently specific to render it reliable for the critical purpose submitted by the defendant. The disparity in time between Dr Drummond's clinical evaluations and the date of the video material also raises doubts about comparative equivalence. That is especially so without a consideration of whether, on the dates the plaintiff was filmed in September 2015, there was pain, or whether the activity was assisted by the ameliorating effects of painkilling medication: T100.25; T135.30; T160.30.
Dr Drummond's commentary did not seek to explain the existence of an implied equivalence between shoulder movements whilst standing or sitting in a formal orthopaedic examination and the videoed activity of reaching out with the arm whilst bending. In my view, the absence of an explanation along those lines gives rise to a need to apply great caution before drawing an inference of equivalence. I therefore do not draw that inference.
It is difficult to place reliance on Dr Drummond's commentary to the effect that the plaintiff was comfortable in the activities shown when he was not given the opportunity to ask the plaintiff questions that could have thrown light on that matter. Matters such as day to day variations (as explained in the plaintiff's evidence at T45.26 - T45.30; T51.45 - T51.50), intake of pain relieving medication (T59.46; T100.25; T135.30; T160.30), the effect of treatment, could all have been possibly influential on a consideration of that question. An analysis or discussion along those lines, or an allowance for such matters, was absent from Dr Drummond's commentary.
In considering the aptness of Dr Drummond's interpretation of the DVD footage to the effect that the plaintiff was shown to walk "without limping", I do not accept the factual correctness of that statement. It does not accord with my own factual assessment of what is shown on the video surveillance footage, where the plaintiff is shown to have been limping.
Another reason for doubting the reliability of Dr Drummond's commentary is that it appears to be focussed upon "Upper Extremity Impairment" according to MAS assessment guidelines, which is a threshold gateway question for determining eligibility for claiming damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90]; Brown v Lewis [2006] NSWCA 87, at [23]. That is a different analytical consideration to determining the factual matter of whether or not a particular disability or loss of function exists. By referring to that consideration, Dr Drummond has introduced a confounding factor that I consider necessarily limits the reliability of his commentary.

[34]

19 December 2016 - Dr Lewin's initial surveillance commentary

Dr Lewin's initial commentary on the DVD material appears at Exhibit "3", pp 174-177.
On 5 December 2016, Dr Lewin was asked to consider "various document (sic)" and prepare a supplementary report as to whether the "various new data" caused him to change his previous psychiatric opinion. His supplementary report in response to that request is dated 19 December 2016: Exhibit "3", pp 174-177.
Dr Lewin commented (at p 175), that the content of the 1 December 2014 transcript of the plaintiff's evidence, was essentially similar to the history that he had obtained from the plaintiff in the clinical setting.
Like Dr Slezak and Dr Drummond, whose commentaries were provided to Dr Lewin for his assistance, Dr Lewin referred to the plaintiff walking briskly, and freely. That is an interpretation which I find I cannot accept without qualification as I consider that the plaintiff was seen on the DVD surveillance material to walk with a limp. That is quite a separate concept from the term "walking briskly". I question whether that description is truly apt, given there was no evidence or analysis of the speed at which the footage was either filmed or viewed. The plaintiff was reluctant to accept the interpretation that he had walked briskly: T177.37; T180.29; T189.29. That matter, and the scope for the possibility of image distortion through magnification over distance, including using mirrors, are matters that would require explanatory evidence.
More relevantly to his own specialty, Dr Lewin stated (at p 175), that he did not observe the plaintiff to show pain behaviours in the video footage. On that question, in the footage viewed, I did not see any evidence of the plaintiff either smiling, laughing or grimacing. Whether or not this was possibly somehow associated with the effects of medication, or Dr Lewin's earlier diagnosis of iatrogenic narcotic dependence, this was not explored. Nevertheless, it is difficult to see how a video recording taken from a distance, as was obviously the case here in order to avoid operator detection, where some of the footage was filmed using a mirror, could provide a determinatively useful diagnostic insight into the limited behaviour which was seen and recorded. For that to be the case, cogent explanatory reasons would be required, but were not provided: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).
Dr Lewin seemed to have been impressed with video evidence of the plaintiff's interactions with others as appearing to be "in a lively and straightforward manner". In my view, this seems to me to be of limited significance in the absence of evidence about what might have provoked those interactions as interpreted by Dr Lewin. Dr Lewin was not given the opportunity to explore such matters with the plaintiff in a clinical setting in order to obtain the plaintiff's account of those matters.
Dr Lewin's generalised view (at pp 176-177), that the clinical picture presented by the plaintiff in consultation was not consistent with the material observed in the video surveillance material obtained in September 2015, in my assessment, represents a problematic analysis. It was not a view that Dr Lewin was able to fairly explore with the plaintiff. The two observational vantage points for drawing conclusions about the plaintiff were very different. Dr Lewin has not explained the diagnostic or observational equivalence of those circumstances.
In light of the foregoing factors, I discount Dr Lewin's cited commentary on the significance of the surveillance material. His statement that the plaintiff "did not appear sedated, withdrawn, downcast, or dispirited" is different to factually excluding such states. Absent an explanation from the expert as to why such material was a reliable source of diagnosis of an emotional state, or reliable source of contradiction of the plaintiff's case, especially where the plaintiff was not seen to be happy, or smiling, or laughing, I consider the video surveillance material and Dr Lewin's commentary upon it, to have little persuasive weight.

[35]

1 February 2017 - Dr Lewin's subsequent surveillance commentary

Dr Lewin's subsequent commentary on the DVD material appears at Exhibit "3", pp 178-179.
On 30 January 2017, the solicitor for the defendant sent an email to Dr Lewin asking him to clarify his opinion dated 19 December 2016. The request for clarification related to Dr Lewin's above-cited opinion on matters of psychiatric diagnosis and permanent impairment.
Dr Lewin referred to his earlier diagnosis of a morbid depressive condition in the form of major depression with melancholia, and stated that it was "most unlikely indeed" that an individual with that condition "would present in the manner demonstrated in the video material in September 2015 when considering the clinical presentation in February 2014 and October 2016": Exhibit "3", p 178.
In that regard, Dr Lewin explained that an important clinical characteristic of melancholic depression is that the condition presents with an enduring pattern of low mood, lethargy, social withdrawal and pessimism, "which is present almost all of the time on an ongoing basis". [Emphasis added] The fact that Dr Lewin referred to a pattern distinguishes it from continuity. A pattern allows for interruption of continuity and allows for variation.
In other words, as I read his comment, some scope should be allowed for variation in presentation from a diagnostic perspective. Otherwise, he would not have used the cited descriptor "almost" to which I have added emphasis in the preceding quotation.
Nevertheless, and unequivocally, without a differential discussion supported by adequate reasons, Dr Lewin stated that the plaintiff's behaviours observed in the video materials "are inconsistent with the clinical presentation … [the] two versions cannot co-exist". He then went on to say that he had been deceived by the plaintiff: Exhibit "3", p 179.
In my opinion, Dr Lewin's commentary is problematic and I am unpersuaded by it, for an array of reasons.
Given the non-exclusionary term "almost" used by Dr Lewin, he has not stated that he has considered any other possibilities that might arguably serve to reconcile what he has stated to be irreconcilable. Furthermore, Dr Lewin set the terms of his analysis as being the diagnosis of melancholic depression, which appears to be a different entity diagnosed by Dr Westmore as chronic pain symptoms, post-traumatic stress disorder, anxiety and depression. Without an accompanying discussion explaining such matters of difference, in my view, his opinion reveals a relevant imbalance in the consideration he applied.
Without attempting an exhaustive analysis, such other possibilities include the possibility of either a temporary recession of symptoms, which may have also raised the prospect of a different psychiatric diagnosis but still consistent with an accident-related cause, the ameliorating effects of the plaintiff's medication intake, whether painkilling or psychotropic (T100.25; T135.30; T160.30), and whether the plaintiff was experiencing a variation in the intensity of his symptoms at the time he was filmed, a possibility that was raised by the plaintiff's evidence: T45.26 - T45.30; T51.45 - T51.50.
In my view, Dr Lewin has limited his focus only on what he considered to be matters that were irreconcilable, and this has led him to the conclusion he had been deceived. In my view, he has not provided adequate reasons for that view because he has not differentially discussed other possible explanations for the purpose of exclusion: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c).
In making the statement that he could not make a psychiatric diagnosis because he had been deceived, Dr Lewin went on to say "it follows logically that there is no permanent impairment resulting from the motor vehicle accident": Exhibit "3", p 179.
I do not accept the aptness of that conclusion by Dr Lewin. This is because, first, it is difficult to see how his cited statement follows logically where he has not differentially or adequately excluded other possible psychological explanations, including the scope for day to day variations in the way the plaintiff has experienced his difficulties. Secondly, Dr Lewin has brought a confounding factor into the analysis by reason of his consideration of the MAS administrative criterion of an impairment assessment. Whilst he did as he was asked by the defendant's solicitor in that regard, the effect has been that he has intermixed the consideration of the issue of disability, which is a matter for diagnosis, and the separate question of the assessment of impairment. The latter question is a threshold or gateway consideration as to whether there should be an assessment of an entitlement to recover damages for non-economic loss. That is not an issue in this case: Pham v Shui [2006] NSWCA 373, at [90]; Brown v Lewis [2006] NSWCA 87, at [23].
I consider that by doing so, Dr Lewin has clouded his analysis in a way that cannot be clarified without explanatory reasons, which are absent in this instance. This serves to diminish the weight of his cited opinion.
The obvious and logical course would have been for arrangements to be made for the plaintiff to be re-assessed by Dr Lewin in person, in the clinical setting. This would have enabled him to apply his expertise to make a clinical appraisal, including by asking the plaintiff relevant questions about his presentation, his behaviour, his medication intake, and any other matters of relevance to the task of undertaking a psychological evaluation. It appears that neither Dr Lewin nor the solicitor for the defendant sought to take that course, which if taken, could have readily served to clarify that which became clouded by the forensic process which was adopted.
Accordingly, the process which has been adopted had significant limitations. This was also recognised by Dr Westmore: Exhibit "B", pp 454-455. For the reasons identified, I therefore do not accept Dr Lewin's conclusions. In referring to the "sorts of behaviours observed in the video materials", Dr Lewin did not once refer to the fact that in that material the plaintiff did not appear to laugh or smile, which I consider to be a relevant consideration in determining the plaintiff's emotional status, or whether or not he was in any way depressed.
Without an explanatory exploration of the "behaviours" seen in the surveillance footage, most of which were physical, and which included the plaintiff walking with an observable limp, which Dr Lewin did not seem to detect, I am not prepared to accept Dr Lewin's cited analysis, as thus far identified. I will return to the reliability of Dr Lewin's commentary after reviewing and considering the joint report of his meeting with Dr Westmore.

[36]

23 March 2017 - Dr Sekel's surveillance commentary

Dr Sekel's commentary on the DVD material appears at Exhibit "3", pp 243-248.
On a date which was unstated, Dr Sekel was asked by the solicitor for the defendant to consider the September 2015 DVD surveillance material, "and some recent reports", and to advise as to whether those materials caused him to alter his previous opinions. He responded that "the DVD confirms all of the opinions recorded in my previous reports, without alteration": Exhibit "3", pp 243-248. For the reasons that follow, I do not accept Dr Sekel's interpretation of the DVD surveillance material.
In his report (at p 243), Dr Sekel described the video material as showing the plaintiff at all times walking in a free-flowing and often at a brisk pace, "in marked contrast to the bizarre very wide based limp (holding a walking stick in his left hand) that he demonstrated during the medical assessment". I take that to refer to the plaintiff's antalgic gait as was identified by Dr New.
As with the other expert commentaries analysed in the preceding paragraphs, Dr Sekel was not given the opportunity to ask the plaintiff questions in order to see if, in the interests of procedural fairness, there was a rational explanation for the apparent discrepancy he saw between the observations he made of the plaintiff's gait in the consultations he had on 28 May 2014 and 15 February 2017, when compared to the video surveillance material obtained in September 2015, and which he viewed on 23 March 2017.
Accordingly, Dr Sekel's commentary did not take into account factors such as ameliorative effects on pain and movement if pain relieving medication had been taken, or possible variations of the effect of disability from day to day, as described by the plaintiff in his evidence, including the effect that pain relieving medication had on the suppression of his pain (T100.25; T135.30), and the scope for day to day variations which Dr New identified at Exhibit "6", p 6, lines 33-44, and which the plaintiff described: T45.26 - T45.30; T51.45 - T51.50. I consider that those considerations or the absence of them, diminish the persuasive value of Dr Sekel's commentary on the DVD evidence he reviewed and described.
Most significantly, in his commentary, Dr Sekel did not observe, or at least did not comment upon, the DVD surveillance material which showed the plaintiff to be limping, as I have observed to be the fact. I consider this to be a significant flaw in his cited opinion, which persuades me that it should not be accepted.
Allowing for the possibility that, by implication, in arriving at his conclusion on the significance of the plaintiff's walk as he interpreted the DVD footage, Dr Sekel has applied medical expertise to the question of whether or not the plaintiff was limping or significantly limping (although his report did not expressly state this), nevertheless his observation does not accord with my own factual observation.
In coming to that conclusion, I am cognisant of the need to avoid substituting my opinions on matters touching upon medical diagnosis for the views of experts on matters involving expertise: Strinic v Singh [2009] NSWCA 15. That said, I consider that the interpretation of the plaintiff's manner of walking as seen on DVD footage is a discrete matter of fact not involving medical expertise, such that, I consider I am not constrained from applying considerations of an ordinary commonsense factual appraisal of that material. My conclusion is that the plaintiff was seen limping, which is a matter of some significance which was not identified by Dr Sekel.
Allowing for the possibility that, on a narrow application of Strinic v Singh [2009] NSWCA 15, I may be found to have been incorrect in adopting that mode of analysis, I am nevertheless reinforced in my factual conclusion that the DVD material shows the plaintiff limping because that is also the conclusion of the trained medical examiner's eye that Dr New brought to the evaluation of the plaintiff's gait.
In Dr New's examination of the plaintiff he described this as an antalgic gait: Exhibit "B", p 76. Dr New's unchallenged view as stated in the joint report he was a signatory to, was that he saw nothing on the DVD which deviated from the complaints the plaintiff had (Exhibit "6", p 6, lines 33-44), which I infer included an antalgic gait. The term antalgic gait is commonly and uncontroversially understood to mean a walking limp adopted so as to avoid pain on weight bearing structures, which in the context of this case, would most probably include knees. I am therefore also guided by Dr New's view on that matter of fact.
Accordingly, I do not accept the options of Dr Sekel's view (at p 245), that the plaintiff was not genuine in his claimed disabilities. In my assessment, Dr Sekel's view (at p 245), that the plaintiff had "completely normal ranges of free flowing movement of all the joints" involves a significant and sweeping overstatement, as explained above, including by the absence of any mention of the plaintiff's limping gait, as seen on the DVD material.
I therefore conclude that I should place very little weight on Dr Sekel's interpretation of the DVD surveillance footage. I prefer Dr New's opinion in that regard, which happens to accord with my own factual observation of the plaintiff's walk with a limping gait.
Having reached that conclusion, it is unnecessary to further analyse Dr Sekel's subsequent commentary on the opinions of other experts.

[37]

5 May 2017 - Dr Westmore and Dr Lewin's joint surveillance commentary

The joint report commentary by Dr Westmore and Dr Lewin on the DVD material appears at Exhibit "B", pp 450-455.
Dr Westmore's observation (at p 454), to the effect that in psychiatric cases, psychiatrists recognise the limitations of surveillance material of the type under present analysis, was not disputed by Dr Lewin.
In that regard, Dr Lewin's position must be read in light of his earlier comment in his report dated 19 December 2016 (at p 176), where he noted he had not had the opportunity to hear the plaintiff's side of the story on the content of the DVD surveillance footage. His reference to that point, which involves procedural fairness, is uncontroversial.
Here, I interpolate that I have had the opportunity of hearing the plaintiff's side of the story, and I have considered the plaintiff's explanations of the ameliorative effects of medication intake on his activity, and the scope for variation on some days which are better than others, as earlier mentioned, and I have the benefit of Dr New's evidence to the same effect: Exhibit "6", p 6, lines 35-39.
I consider that cited evidence, whilst undoubtedly convenient to the plaintiff's case, was not inherently or glaringly improbable. The relatively meagre sample of the plaintiff's observed activities, as shown on a few instances of DVD surveillance undertaken in September 2015, should not, in my view, trump the plaintiff's cited evidence, which is of a broader application that applies over a much longer period of time than the video surveillance material.
Whilst Dr Lewin and Dr Westmore jointly noted a divergence between the plaintiff's behaviour as seen in the video material and his behaviour in the consulting rooms, I consider that the relevant differential context must be taken into account.
In that regard, I do not see an applicable equivalence between that cited comparison where the video material is no more than a random sample of observed movement behaviour, taken on limited dates without clarification by explanatory questions and answers, whereas in contrast, a psychiatric consultation is, I infer, a focussed discussion on the plaintiff's history and an analysis of the psychological issues that impact upon him.
I very much doubt that the psychiatric consultations respectively undertaken by Dr Lewin and Dr Westmore involved an observational analysis of the plaintiff's walking and box carrying activities as seen on the surveillance footage. If comparisons are to be made, like must be compared with like, absent explained justifiable exceptions. Accordingly, their commentaries must be considered in the appropriate perspective.
In that regard, I accept Dr Westmore's view (at p 454), that a concluded understanding of the plaintiff's observed behaviour would have been benefited by the opportunity of a further psychiatric consultation. Obviously, at that time, a relevant discussion and reconciliatory analysis, if available, could have been readily undertaken.
The meeting between Dr Lewin and Dr Westmore took place on 5 May 2017, which was 5 months before the hearing, the date of which had been allocated on 12 May 2017, and which later confirmed on 24 July 2017. In that period, neither party appears to have sought to take up or pursue Dr Westmore's cited suggestion.
It is in those circumstances that I must undertake the consideration as best I can, notwithstanding such limitations: Cupac v Cannone [2015] NSWCA 114; Manly Municipal Council v Skene [2002] NSWCA 385; Majkic v Bonnano [2008] NSWCA 253, following Larson v Commissioner of Police [2004] NSWCA 126.
In that regard, absent an opportunity for the psychiatrists to explore with the plaintiff the implications of the DVD material, and for the reasons outlined above, I place diminished weight on Dr Lewin's view to the extent that the defendant seeks to rely upon, to cast doubt upon the plaintiff's credibility.
Dr Lewin's comment (at p 455), that "in usual psychiatric experience melancholic depression is an enduring condition where there is very little variability from day to day" is not an exclusionary statement. In that regard, unusual does not mean not possible, usual does not mean invariably. It seems to me that Dr Lewin's explanation permits some scope for variation, which in turn highlights the sense of Dr Westmore's suggestion for a further psychiatric assessment to take place to try and reconcile apparent inconsistencies in order to determine whether they are explicable, or truly significant, or whether some other psychiatric diagnosis should be made.
Dr Lewin noted the obvious variant (at p 455), that people do cheer up for a short period day to day. He then posed the question "but is it improbable that someone with melancholic depression would exhibit the behaviours that were seen on the video in September 2015 and the more recent video from late last year". It is noteworthy, when considering matters of equivalence, that Dr Lewin's repeated use of the term melancholic depression, is not the language used by the other psychiatric assessors. Dr Lewin seems to have set his own variation for making his comments.
I recognise that in the preceding paragraph, I have identified Dr Lewin's cited phrase as a question that he may not have intended. I have considered the possibility that his cited phrasing could represent a typographical error that transposed "is it" for "it is".
However, absent explanatory evidence to that effect, I consider that to be an unlikely possibility or explanation. This is because, before it was signed, the report was separately reviewed by the two expert signatories, on different dates, which suggests the possibility of an error as an explanation an unlikely one. Furthermore, I infer that the joint report would have been read carefully by solicitors and counsel on both sides of the record, and, I infer, also by claims personnel. In those events, if one of those readers considered there to have been a typographical error, it would most likely have been clarified, just as the defendant sought to clarify other aspects of Dr Lewin's opinions in this case: Exhibit "3", pp 174-177; pp 178-179.
Accordingly, I read Dr Lewin's cited comment as a question. In my view, three things flow from that question.
First, the question was left unanswered by Dr Lewin.
Secondly, there is an underlying or threshold issue of whether the video material adequately displays sufficient behavioural information to make a reasoned psychiatric appraisal, which it seems Dr Westmore doubted, by adding his qualifying remark: Exhibit "3", p 454. I accept his view in that regard.
Thirdly, the video material referred to by Dr Lewin appears to have included material "from late last year" which, in May 2017, must be taken to be a reference to late 2016. The material from late 2016 was not in evidence before me in these proceedings. If Dr Lewin was commenting on 2016 surveillance material then, procedural fairness requires that, absent the material being tendered in these proceedings, Dr Lewin's commentary on it should be assigned very limited probative value.
That question arose during the trial, which resulted in the defendant tendering copies of correspondence to Dr Lewin: Exhibit "14": T354.27. The only evidence of the detail of the particular DVD material that had been briefed to Dr Lewin was a letter to Dr Lewin from the defendant's solicitor dated 5 December 2016, which was part of Exhibit "14". It simply refers to surveillance material dated 17 September 2015, which is the date of the 2015 investigation report comprising part of Exhibit "2".
There was no evidence from the defendant's solicitor to state that Exhibit "14" comprised copies of all the correspondence that had been sent to Dr Lewin enclosing surveillance material. In those circumstances I do not discount the possibility that Dr Lewin was somehow briefed with material for comment despite the absence of a formal letter. In that regard, and in support of that view, I note that Exhibit "14" does not include a copy of any email to Dr Lewin from the defendant's solicitor on 30 January 2017, as I have observed at paragraph [145] above. A copy of that email was not tendered or included in any other exhibit in these proceedings.
During the trial Dr Lewin was approached by the defendant's solicitor to provide a supplementary letter to clarify this position: Exhibit "15". That letter, which was dated 13 October 2017, appears to have been generated by means of a telephone call from the solicitor for the defendant, to Dr Lewin, in which his attention was drawn to a reference in the joint report of Dr Lewin and Dr Westmore, in which DVD material "… from September 2015 and late last year…" was mentioned.
In his 13 October 2017 letter, Dr Lewin stated that he could not recall the date of the video material. He also stated that the discs were discarded and his only handwritten notes relate to various dates in September 2015. He explained the report was prepared by a secretary who had transcribed a telephone conference some six months earlier.
It should be noted that Exhibit "15" contains a sentence that was struck out and which is not to be included in the evidence. It read: "the solicitor who instructed me informed me today that the two dates [of the video material] were September 2015 and March 2017".
On that state of the evidence, there being no precise evidence from the solicitor for the defendant as to what was provided to Dr Lewin, I am left with considerable unease about whether or not Dr Lewin saw video surveillance material that was dated late 2016, and whether or not such material may have influenced his views in a way that is now opaque to analysis in these proceedings.

[38]

4 October 2017 - joint surveillance commentary by Dr Drummond, Dr Harrison and Dr New

The joint report commentary by Dr Drummond, Dr Harrison and Dr New on the DVD material appears at Exhibit "6".
Dr Harrison's analysis on 5 October 2017 (at Exhibit "6", p 6), noted "… a disproportion between the subject incident and sequelae and the plaintiff's ongoing complaints", where he had last seen the plaintiff in consultation on 31 May 2012 and 8 December 2016, but he allowed for the possibility of psychological factors as sequelae.
The accuracy of Dr Harrison's earlier "private and confidential" commentary dated 31 May 2012, must be considered to be in doubt because of incomplete editing, where he described examining "this lady man" on 31 May 2012: Exhibit "3", p 334.
Dr Drummond's viewing of the video material indicated to him (at Exhibit "6", p 5), that the plaintiff was not limping when walking. That was a material matter that appears to have led him to the view that (as at September 2015), the plaintiff was "currently just feigning and generating symptoms which are not a reflection of the underlying pathology". I do not accept Dr Drummond's cited interpretation to that effect.
There is an obvious logical difficulty in inferring a presumption of continuance of observed disability between Dr Harrison's observations on 31 May 2012, 8 December 2016, and the video material dated September 2015 which was in between those dates. This is especially so where the evidence shows that there is scope for variation in levels of disability from day to day, as stated by the plaintiff (T45.26 - T45.30; T51.45 - T51.50), and as was observed by Dr New: Exhibit "6", p 6.
Relevantly, Dr New's assessment allowed for day to day variations in the plaintiff's level of exhibited disability. The joint report summarised his view in that regard, as follows: "Dr New did not see anything on the DVDs which demonstrated a dramatic deviation from the complaints that the plaintiff had. Sometimes he has a bad back; sometimes it is not so bad. As to the severity of back and leg pain, on any given day, a person with a substantial pathology could be having a good day and be resilient and trying to get on with activities, but that person can also have bad days and cannot get on with activities. The history of the plaintiff's knee pain is consistent with what Dr New saw. The plaintiff was not using a cane on every occasion that Dr New saw him." [Exhibit "6", p 6, lines 33-44]
In my assessment, Dr New's cited view provides the most reasonable and therefore the most acceptable analysis because of its non-dogmatic inherent commonsense approach, and the sensible allowance it makes for day to day variations to occur in levels of displayed disability, which in turn casts doubt on the overall reliability of the DVD surveillance material because it comprises a very limited sample.
In light of the above analysis, I find myself unable to accept Dr Drummond's conclusion that the DVD material reveals the plaintiff to be feigning and generating symptoms. He had last seen the plaintiff on 13 October 2016. The defendant would have had the September 2015 DVD material well before that time, and had the option of providing it to Dr Drummond for comment at an earlier time. Instead, a different forensic course was taken. Be that as it may, the end point of the analysis is that I consider Dr Drummond's assessment of the plaintiff feigning disability to amount to hyperbole, which I find to be unjustified on the medical evidence and the plaintiff's explanatory evidence when viewed as a whole. I do not accept Dr Drummond's stated conclusion in that regard. This causes me to doubt his analysis, which was expressed in terms that were highly critical of the plaintiff's probity.
In my view, for the above reasons, nothing adverse to the plaintiff's credit should be drawn from the joint report of Dr Drummond, Dr Harrison and Dr New.

[41]

Epilepsy - whether accident-related

I have given careful consideration to the question of whether the plaintiff suffered a loss of consciousness in the subject accident, or whether he suffered a contusional injury to the brain, a possibility that was raised by Dr Puhl, thereby offering a possible explanation for the plaintiff later experiencing a seizure on 8 February 2013.
The plaintiff was not able to positively assert that he lost consciousness in the accident, although he was in shock and struggled to speak at that time: T102.21 - T102.26. The plaintiff's evidence to the effect that his face was in contact with the road after the accident does not necessarily suggest that he sustained a head injury. There is no contemporaneous medical documentation of such an injury. It is unlikely that a head injury, if it had occurred, would have escaped the attention of the examining medical staff at St Vincent's Hospital when the plaintiff was examined there.
My conclusion on considering the evidence of the plaintiff, the contemporaneous medical records and reports, such as they are in this case, and specialist neurological opinions, is that the evidence does not support the contention that the plaintiff's seizures were post-traumatic and as a consequence of a head injury.
That said, I nevertheless consider that the initial seizure that the plaintiff experienced had a sufficient medical nexus to the effects of the accident that they should be considered to have been caused by the accident.
After the accident, the plaintiff had a need to take significant quantities of narcotic analgesic medication. This has caused him to experience gastro-intestinal symptoms of gastritis as a complicating feature of taking that medication. Those symptoms warranted him having the specific endoscopic investigations in February 2013, which in turn required him to undergo bowel preparation measures, which caused him to experience the onset of his first seizure due to a related hypoglycaemic event caused by fasting for that test. Dr Sekel also identified that mechanism for this occurrence and I accept that aspect of his opinion, as cited at sub-paragraph (106) of paragraph [66] above.
Whilst the medical evidence shows that the plaintiff had a pre-accident history of gastro-intestinal problems, with related investigations as summarised at sub-paragraphs (4), (5), (36) and (37) of paragraph [42] above, it was the subject accident that led him to suffer the gastritis that led to the procedure planned in February 2013, and to the related hypoglycaemic seizure due to fasting on 8 February 2013.
I therefore find that but for the accident, that occurrence would not have arisen. Accordingly, I find the subject accident caused him to experience the onset of that seizure. The subsequent investigations and treatment were accident-related: Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18] and [32]; s 5D(1)(a) and (b) of the CL Act.

[42]

Work fitness and need for domestic assistance

I am persuaded by the preponderance of the medical evidence that for both physical and psychological reasons, the plaintiff has been rendered unfit for his pre-injury employment. I am also persuaded that as a consequence of his injuries, the plaintiff has had, and continues to have an injury-related need for the provision of domestic assistance.
In coming to the conclusion that the effects of the accident have rendered the plaintiff unfit for employment, I have not overlooked the opinions of Dr Sekel as cited at sub-paragraph (106) of paragraph [66] above, which not only suggested the plaintiff would have had a restricted earning capacity in any event, even if the accident had not occurred, and as cited at sub-paragraph (132) of paragraph [66] above. Dr Sekel's opinion was to the effect that the plaintiff's physical problems ought not have prevented him from returning to his work within 2 months of 4 November 2011 as a maximum.
I do not accept Dr Sekel's views as cited in the preceding paragraph. In my view, it is an incomplete appraisal as it does not take into account the obviously relevant psychological and psychiatric considerations, as he has acknowledged. Also, I consider that Dr Sekel did not sufficiently deal with an evaluation of the physical requirements of that work to render his opinion reliable in that regard: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).
Furthermore, I consider that Dr Sekel's dismissal of the plaintiff's gait as "bizarre", should not be accepted in light of Dr New's more considered analysis that the plaintiff exhibited an antalgic gait. I infer from the descriptions in the evidence that Dr Sekel and Dr New were considering similar presentations. I find Dr New's analysis more considered and persuasive than Dr Sekel's dismissive commentaries.
I have considered Dr Sekel's evidence that seeks to describe much of the plaintiff's disabilities, such as right shoulder, neck, back and right wrist problems, as being pre-accident problems that were not caused or influenced by the subject accident. In my view, Dr Sekel's commentary in that regard is not sufficiently reasoned to permit a finding to that effect. Furthermore, his reasons fail to reflect the fact that whatever pre-accident injury-related problems the plaintiff had, he was coping with his work. In that regard, the defendant must take the plaintiff as he is found, including any underlying vulnerabilities to further injury: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]. The defendant has not provided satisfactory evidence to rebut the plaintiff's case on this point. The plaintiff has satisfied the requirements of s 5D of the CL Act as to those matters: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] - [47]
In coming to my conclusions on the plaintiff's work incapacity I have not overlooked the opinions of Dr Zeman. I have already identified at sub-paragraph (73) of paragraph [66] above, an inconsistency in the 14 May 2013 report of Dr Zeman which casts doubt upon his opinion that the plaintiff's soft tissue knee, low back and neck problems were accident-related. I do not accept Dr Zeman's views on the absence of a relationship of the plaintiff's gastro-intestinal and right wrist problems to the accident. I consider the preponderance of the medical evidence indicates the contrary view as already explained. Dr Zeman was of the view that the psychological factors of depression or PTSD were likely factors in the plaintiff's complaints of impaired function. I accept that latter view in relation to the plaintiff's work incapacity.
I find that the plaintiff's work incapacity consequent upon his residual accident-related physical problems also has a flow-on effect which interferes with his ability to carry out his pre-accident domestic tasks. My consideration of that topic will be taken up in my assessment of the plaintiff's claim for damages for domestic assistance.

[43]

(9) Evaluation of 1 December 2014 transcript pages 31 to 69

The defendant tendered pages 31 to 69 of the transcript of the plaintiff's evidence in chief given at a previous hearing of this case on 1 December 2014: Exhibit "3". The transcript references in the ensuing 6 paragraphs are references to that 1 December 2014 partial transcript.
The early part of that transcript dealt with the circumstances of the accident, in which the plaintiff described his right hand coming into contact with the bonnet of the vehicle: T33.1 - T33.5; a big impact with his right hip: T33.7 - T33.11; his back and his body coming into contact with the bonnet of the vehicle: T33.13 - T33.18; hitting the road with his right shoulder after a hard hit by the vehicle: T33.44; being hit by the vehicle again in those events: T34.9; and then rolling on the road with his hands in front of his face but with his face on the road: T34.30 - T34.50.
In those events, the plaintiff said he was aware of his ears buzzing, sharp pains in the back, the shoulder and head: T35.19 - T35.23. His left thumb was torn and bleeding: T36.2 - T36.6. He had no strength to speak to those who came to assist him: T36.43.
I infer from the above descriptions, which were not challenged or contradicted by the defendant, that in addition to the other identified parts of his body, the plaintiff experienced some kind of force applied to his head in those described events, either directly or indirectly. That said, the evidence does not reasonably support the contention that the plaintiff had sustained either a concussive head injury with a loss of consciousness, or a contusional brain injury.
In that earlier transcript of evidence, the plaintiff described the left thumb injury and its related treatment: T43 - T44. He also described his right wrist as hurting: T43.50 - T44.10. His right wrist injury later caused him to have difficulty with lifting weights of more than 2.5kgs and taking the tops off bottles: T46.34 - T46.46. He described the pain in his right wrist as stopping him writing: T47.1 - T47.36.
The plaintiff also described how his lower back problems had levelled off by about early 2012, but sometimes it gets worse, and he had to take care how he moved: T47.42 - T48.2. He described nerve pain from the back to the right buttock, leg and foot if he walks too long, that is, for about 20 minutes: T48.30 - T49.5. He takes Endone for neck, shoulder and back pain: T49.12. His knee pains appear to have stabilised by early 2012: T49.2.
That transcript went on to describe the different ways in which the plaintiff experienced physical and emotional sequelae from the accident, and his inability to carry out his former level of domestic activities: T54 - T64.

[44]

(10) Disabilities that remain

On reviewing the evidence of the plaintiff, and following my assessment of the credibility and the reliability of his testimony, aided by the medical opinions that I have accepted, I find that the plaintiff continues to suffer from a series of accident-related physical disabilities, as summarised below: 1. Restricted use of his left thumb, with associated scarring and lessened dexterity following a repaired laceration, including to a tendon; 2. Pain, discomfort and restricted movement of the right wrist, which was superimposed on an earlier, but symptomatically resolved, wrist injury, but now adversely affecting the plaintiff's manual dexterity in his dominant hand; 3. Pain and discomfort in the right elbow; 4. Pain, discomfort and restriction of movement in the right shoulder, with reduced function in the right upper limb; 5. Discomfort in the left shoulder due to compensatory overuse of the left upper limb consequent upon disability of the right shoulder; 6. Pain and discomfort in the cervical spine superimposed upon pre-existing degenerative changes; 7. Pain and discomfort in the lumbar spine superimposed upon pre-existing degenerative changes; 8. Bilateral knee pain, which has stabilised; 9. Antalgic gait, and the occasional need to use a walking stick for support; 10. Reliance on analgesic medications, which cause gastro-intestinal symptoms, including gastritis, superimposed upon previous gastritis, but now requiring closer monitoring and medical management; 11. Depression, and resultant altered interpersonal relations; 12. Impairment of earning capacity; 13. Reduced capacity to perform common-place pre-injury domestic tasks; 14. The requirement to pursue medical, pharmaceutical, and possible surgical treatments, as recommended.
The plaintiff's epileptic seizures have receded but vigilance is required in case of recurrence. I am not satisfied the plaintiff's diabetes condition has materially altered since the subject accident.
It is not necessary for me to describe those matters in further detail except as to work and domestic tasks, and future treatment needs, as there is no claim available to the plaintiff for damages for non-economic loss for pain, suffering and the loss of amenity of his life.
The practical effect of the plaintiff's disabilities is that his day to day activities have been adversely affected, including his ability to work and his ability to carry out day to day domestic tasks.

[45]

(11) Work effects

The plaintiff said, and I accept, that he could not have worked since the accident: T61.7 - T61.17. This is mostly because of the condition of his right shoulder, his right wrist, his lower back, and his left thumb, which are all accident-related disabilities.
Dr Slezak and Professor Chan offered no opinion on the plaintiff's employability: Exhibit "7". Dr Puhl and Dr Walker agreed that following a diagnosis of epilepsy, this would stop the plaintiff from driving and operating heavy machinery, although Dr Puhl thought the plaintiff would otherwise be able to be employed in full time alternative duties: Exhibit "8".
On 15 July 2012, Dr Gibson considered the plaintiff would have difficulty with work tasks requiring fine manipulation using his left thumb and with tasks requiring heavy lifting or carrying objects at or above shoulder heights. She was not able to identify any appropriate alternative light duty avenues of employment: Exhibit "3", p 139.
On 5 December 2012, the unchallenged opinion of Dr Wallace was that the plaintiff remained unfit for his pre-injury duties as a toolmaker and was at that time not fit for gainful employment: Exhibit "B", p 355.
I do not accept the views of Dr Sekel and Dr Zeman as to the plaintiff's work capacity, for the reasons already identified.
Dr Drummond believed that the plaintiff was fit for employment in his pre-injury job with restrictions for not working with his hand above shoulder height, no repetitive flexion of the spine, and not for lifting more than 10kgs: Exhibit "2", p 2. I do not accept that view for the reasons identified in my earlier analysis of Dr Drummond's opinions. Dr Harrison shared the view that the plaintiff could do bench work but his employability was constrained by the factors of age, lack of condition, and the psychological aspects of injury: Exhibit "6", p 3. Dr Harrison also considered that the plaintiff's incapacity included a diminished confidence in his mobility: Exhibit "6", p 4. That evidence, raised the procedural question of whether, realistically, the plaintiff had any earning capacity.
Dr New reiterated his view that the plaintiff is not fit for work as a toolmaker and that his age was a barrier to retraining, therefore rendering him unfit for employment: Exhibit "6", pp 3-4. In light of my findings as to the plaintiff's ongoing disabilities, I consider Dr New's cited opinion to be the most insightful and practical assessment of the plaintiff's work incapacity.
I also consider that the plaintiff's identified psychological and psychiatric problems of depression and loss of confidence serve to exacerbate the impact of his physical problems. This represents a further barrier to the plaintiff exercising an earning capacity since the subject accident.
In that regard, I accept as reasonable the opinions of Dr Westmore to the effect that since the accident the plaintiff has been unable to work: Exhibit "B", p 408.
On 24 January 2017, the unchallenged opinion of Dr Deveridge was that the plaintiff's injuries have rendered him permanently unfit for his pre-accident employment and he did not expect the plaintiff would be returning to gainful employment for which he was qualified or experienced. He placed many practical restrictions on alternative duties: Exhibit "B", p 385.
Having reviewed the array of medical evidence tendered in the proceedings, I find that the preponderance of that evidence, and on the basis of the plaintiff's evidence which I accept on this point, the plaintiff has remained unfit for work since the subject accident. Any suggestion of him being fit for light work or alternative duties is, in my view, theoretical.
The dispute over the extent of the plaintiff's claim for economic loss will be analysed and determined in my assessment of the plaintiff's most likely circumstances but for the subject accident, and with regard to his claim for damages for economic loss.

[48]

(14) Plaintiff's most likely circumstances but for accident

It is necessary that I identify my findings as to the plaintiff's most likely circumstances but for the subject accident before making findings on future economic loss: s126 of The MAC Act. Those findings also have a bearing on the assessment of the plaintiff's claim for past economic loss in light of the number of years that have passed since the accident.
It is clear from the chronology of the plaintiff's pre-accident health and injury history, as extracted from the evidence and summarised at paragraph [42] above, that the plaintiff's work history had made him vulnerable to incurring injuries from time to time in the course of his work. His pre-injury work was of a heavy nature. In particular, his previous left thumb, right wrist, right shoulder and low back injuries were vulnerable to further disabling effects, if re-injured.
Those matters, the plaintiff's pre-existing type 2 diabetes, and his cardiovascular issues, when taken together, in my view represented an ever-present prospect that he may not have been able to continue to carry out the heavy work of a toolmaker indefinitely. Those pre-accident vulnerabilities to the effects of further injury, whilst quiescently in the background, meant that a tortfeasor such as the defendant had to take the plaintiff as he was found, including with those underlying vulnerabilities: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].
Whilst I accept that the plaintiff had a sound incentive for continuing to work beyond the usual retirement age because of his experience of an earlier financial setback, and the inability of his wife to work due to her own health problems, I very much doubt that the plaintiff, at age 63, would have been continuing to carry out the heavy work of a toolmaker well into his seventies, as he envisaged would have been the case, and as was submitted on his behalf: T21.9; T23.33.
Taking into account the plaintiff's pre-accident health, his previous injury and disability history, his heavy non-sedentary work, I consider it more probable than not, that uninjured, the plaintiff would have ceased his pre-accident work at the age of 70 years: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
I find that until that time, the plaintiff would have continued to work in his pre-injury employment. There was no evidence to suggest that his pre-accident work, or similar work, would not have been open or available to him.

[51]

Past economic loss

The plaintiff makes a claim for past loss of earnings over the period of 346 weeks from the date of the accident to the date of the hearing at the average rate of $1235.80 per week net: MFI "14", par 144. I consider that figure to represent a reasonable overall undiscounted average rate for the period of the claim. Applying this rate to that period of claim, the plaintiff's submission as to his past loss of earning amounts to $427,586.80.
In contrast, the defendant has conceded an amount for past loss of earnings at the initial rate of $960.54 per week net, over a limited period of 52 weeks, namely $58,555.64. In my view, the defendant's submission must be rejected as being somewhat arbitrary, and being without reasonable foundation in the evidence.
The defendant submitted that the plaintiff's loss of income should only be calculated up to the age of 65 years, by which time, it was submitted, the plaintiff would most probably have retired from work. For the reasons already identified as the plaintiff's most likely circumstances but for his injury, I do not accept that submission. Although not determinative, the workers' compensation insurer continued to pay the plaintiff weekly compensation until he was aged 66 years: Exhibit "3", at T50.9. Perhaps the defendant's submission was based on a variant of that evidence.
In light of my findings as to the plaintiff's most likely circumstances but for his accident, I find that the plaintiff would have continued to work in his trade beyond the age of 65 years. There is no evidence that his employer would not have continued to employ him if he had not been injured. He was obviously skilled in a trade that was in demand. I consider that health permitting, the plaintiff would most probably have continued to work to the age of 70 years if he had not been injured. He had a strong financial incentive for doing so.
In making that finding, having regard to potential adverse vicissitudes, and in favour of the defendant, I consider that a discount could be applied to the plaintiff's claim on account of the plaintiff's pre-accident health history as outlined at paragraphs [41] to [43] above, together with the fact that the pre-accident work in which he was engaged was heavy, and he was vulnerable to injury in that work, or that he may have found that he had a reduced capacity to continue with such heavy work on account of his age, and due to the effect of his prior injuries which rendered him vulnerable to aggravation of underlying conditions of his right shoulder, back and right wrist: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
In applying that discount broadly, I assess it at 30 per cent. I therefore assess the plaintiff's claim for past loss of earnings in the net discounted amount of $299,310.

[56]

Past domestic assistance

The plaintiff's submissions made a claim for the value of past gratuitous domestic assistance provided to him by his wife and his two adult daughters "at a minimum of 8 hours per week", at the rate of $24.50 per hour from the date of the accident to the date of the hearing, at $203.20 for a period of 349 weeks, calculated at $70,916.80: MFI "14".
The defendant submitted that claim was grossly excessive for the assistance alleged, especially since it was in addition to the 6 hours per week of paid assistance that was funded by the workers' compensation insurer, as well as for gardening and yard maintenance assistance: MFI "15", par 259.
The state of and the detail of the evidence given by the plaintiff and the plaintiff's daughter on what services were actually provided to him on account of an injury caused need was imprecise. In my view, that evidence did not provide a reliable basis upon which to ascertain the number of hours per week required by the plaintiff as an accident-related need for domestic assistance, as distinct from companionship, including assistance with outings for shopping, and in relation to social visits.
In this case, I consider that the array of reports from medical practitioners who have assessed the plaintiff and considered the extent of any need he may have for domestic assistance is not sufficiently qualified on that subject to render the opinions reliable concerning the estimated number of hours per week required for such assistance: Sampco Pty Ltd v Wurth [2015] NSWCA 117; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443.
It is therefore necessary to look to the expert reports of the occupational therapists for guidance on this head of damage as, prima facie, those experts are suitably qualified by their training and experience to make reliable estimates of the need for such assistance.
The evidence of Ms Grinter, the plaintiff's occupational therapist who provided a report on such matters, estimated the plaintiff's needs for vacuuming, mopping, bathroom cleaning, dusting, changing bed linen, window cleaning, garden maintenance, lawn mowing, car washing and transport to medical appointments, to be an aggregate of 5.5 hours per week. If one were to add some time for weekly shopping to that set of tasks for which assistance was required, the revised aggregate would appear to exceed 6 hours per week.
That said, I consider that the tasks described by Ms Grinter, and the time estimates for those tasks, are not all of a character that could reasonably give rise to recurring precise estimates of the kind put forward by Ms Grinter, even if a benevolent view of average times was to be adopted. Her evidence is not prescriptive. It is only a guide to assessment, and for reliability, it should be limited to specific inabilities in the plaintiff in this case. Those criteria remain unsatisfied on the evidence.
It should be observed that the calculation of damages for past domestic assistance as put forward on behalf of the plaintiff is in any event inaccurate. In that regard, for example, the claim could not reasonably relate to the periods when the plaintiff was away from home for several months when he travelled to India.
The defendant's occupational therapist Ms Caukill, initially proffered an estimated need for domestic assistance at 1.75 hours per week, which she subsequently withdrew after seeing the DVD footage referred to at paragraphs [67] to [91] above. Her estimate does not assist the plaintiff.
On the above survey of the evidence concerning this head of damage, I am not persuaded that the plaintiff has discharged the evidentiary onus of demonstrating that the statutory threshold for the provision of domestic services of 6 hours per week for a minimum of 6 months has been satisfied in this case: s 141B of the MAC Act.
Accordingly, I decline to assess any damages for past gratuitously provided domestic assistance.

[57]

Future domestic assistance

The plaintiff makes a claim for future domestic assistance, on a commercially paid basis, at the rate of $38.50 per hour for 6 hours per week, being $232.80 per week for 10 years (x 412.9) without any further discount, in the total amount of $96,123.12" MFI "14". In contrast, the defendant submits no such allowance should be made: MFI "13", par 280.
Although I have found that in this case, the opinions of the medical experts are not reliably prescriptive of the amount of hours of domestic assistance required by the plaintiff, those reports are relevant to the question of the identification of whether or not there is an identifiable accident-related need for such services.
Of the array of medical opinions that reviewed and expressed opinions on the need for future domestic assistance, I consider Dr New's discussion as set out in the joint report dated 4 October 2017, comprising Exhibit "6", is in my view the most analytical and the most insightful. I find his views as to the need for the plaintiff to have domestic assistance the most reliable and informative.
As to the quantification of the hours required for such services, I infer from the fact that the workers' compensation insurer was persuaded to pay for 6 hours per week for such services in the past, that those hours may be taken to represent a reasonable guide to the quantification of the plaintiff's need for such services, but with some necessary qualifications.
However, on the state of the evidence, it is not possible to approach this head of damage with such mathematical precision. Given the indoor and outdoor activities comprising the domestic tasks formerly undertaken by the plaintiff, but which he is no longer able to perform comfortably and on a sustained basis, I consider that a conservative approach to that task is warranted. My assessment is that 4 hours per week represents a reasonable lifetime average approach.
In quantifying that approach for the assessment of future paid care, 4 hours per week, at $38.50 per hour is the equivalent of $154 per week. The projection of that weekly sum over 10 years on the 5 per cent tables (x 412.9) yields $64,664.
That calculation is not the end of the analysis because the plaintiff's pre-existing health problems, and his advancing age, indicates that a discount on account of potential adverse vicissitudes should be applied to the calculation of commercially provided domestic assistance over the plaintiff's estimated statistical life span of 10 years. In light of those factors, I consider that a reasonable discount on that account would be 25 per cent of the calculation identified in paragraph [289] above.
I therefore assess the plaintiff's damage for future commercially paid domestic assistance in the discounted sum of $48,498.

[58]

Future treatment expenses

The plaintiff makes a claim for future treatment expenses in the total sum of $239,188.75 comprising one-off costs of $67,955, recurring medical treatment costs of $138,201.76, and recurring medication costs of $33,032. The recurring costs are claimed for a projection over a further 10 years: MFI "8"; MFI "14", paragraphs 161 to 186. In contrast, the defendant submitted that there should be no allowance made for future treatment expenses: MFI "13", paragraphs 179 to 233.
The plaintiff's claim for future treatment expenses comprised the following one-off cost elements which total $67,955 as follows: 1. Right wrist arthroscopy and TFC tendon repair: $10,700; 2. Decompression laminectomy, discectomy and lumbar neurolysis: $36,155; 3. Perineural neck and back injections: $4000; 4. Colonoscopy and gastroscopy: $5000; 5. Pain management: $7000; 6. Psychiatric and psychological treatment: $4800.
In addition to those one-off cost estimates totalling $67,955, a claim was also made for ongoing treatment needs for consultation with a general practitioner for 10 visits a year, specialist consultations, physiotherapy, hydrotherapy, remedial massage, and related transport costs. Those recurring costs were submitted to be in the annual sum of $17,405, which is the equivalent of $334.71 per week. The submissions made on behalf of the plaintiff then sought to project that analysed weekly sum over 10 years on the 5 per cent discount tables (x 412.9) to yield the undiscounted amount of $138,201.76.
The combined total of the claimed one-off costs of $67.955 and the projected 10 years claim of recurring costs of $138,201.76 combine to a total claim of $206,156.76.
In my view, on the evidence adduced, that pseudo-mathematical approach is not the appropriate method by which to quantify this component of the plaintiff's claim. I am of that view because, at the plaintiff's age of 70 years, I consider it unlikely that he will be submitting himself to future treatment to such an elaborate and extensive degree.
Insofar as the surgical treatment is concerned, it is significant that he has not had or sought to have the full extent of that treatment to date. The suggested surgery carries risks as well as having potential benefits. It is by no means clear the plaintiff will submit himself to the risks of wrist and back surgery. Accordingly, the capital costs of those treatment modalities should be significantly discounted for the prospect that not all of the suggested treatment is likely to be undertaken by the plaintiff.
Similarly, the claimed recurring treatment costs, whilst reasonable as to the suggested modalities as recommended by the expert evidence, need to be discounted to reflect likely variations in the frequency and intensity that would be undertaken over time, and that consideration would necessarily influence the extent to which the plaintiff is likely to incur future treatment costs.
In those circumstances, I consider that the pseudo-mathematical approach as was contended on behalf of the plaintiff is not justified, and instead, a lump sum buffer amount is the most appropriate method of assessment, albeit imprecise.
The fact that a precise mathematical assessment of this head of damage may be difficult to achieve does not mean that an attempt at assessment should not be made in the form of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
Doing the best I can on that approach, I assess the appropriate buffer amount to meet the plaintiff's future treatment needs in the discounted lump sum of $45,000.

[59]

Past out-of-pocket expenses

The plaintiff claimed past out-of-pocket expenses for medical and hospital treatment totalling $59,681.50 of which he had paid $2755.70. The balance, $56,925.80 was paid by his employer's workers' compensation insurer: MFI "9". The defendant submitted that the award of out-of-pocket expenses be limited to the sum of $8544: MFI "8".
On the last day of the hearing, the list of payments made by the workers' compensation insurer was tendered: Exhibit "16"; T355.20. The defendant made a separate submission on the plaintiff's claim for out-of-pocket expenses: MFI "12".
The effect of MFI "12" is that the defendant concedes that the amounts referred to in the schedule produced by the workers' compensation insurer, namely $54,796, were paid, but disputes that all of those items should be allowed because, it was argued, that they relate to matters not caused by the accident, specifically the claim of post-traumatic epilepsy, travelling expenses and taxis fares, and amounts paid to the plaintiff's treating neurologist, Dr Bleasel, consistent with its contention that investigation and treatment for epilepsy was not an accident-related item of expense. The defendant made similar submissions relating to expenses paid to Dr Yiannikas, Professor Dwyer, Dr Gomes, Dr Khoo, Dr McKay and Dr Puhl.
The parties provided little assistance to the task of determining those matters. I therefore have to do the best I can with the information that is available.
The starting point in the analysis is to infer, as I do, that it was unlikely that the workers' compensation insurer would make payments for medical investigation and treatment that was unrelated to the subject accident. That said, it is still necessary to scrutinise the schedule for matters that might be inherently improbable as accident-related expenses, absent other explanations being made available.
Exhibit "16" at p 50, makes it clear that the unrecoverable items of expenditure that the workers' compensation insurer expended for medico-legal investigations and the like, have been deducted from the amount claimed.
As to the balance, I consider all the items are recoverable for the reasons stated at paragraphs [211] to [217] above. It is plain that the plaintiff's gastritis, which emerged following the accident to the extent that it required treatment, due to his medication intake, needed to be the subject of medical investigations. I therefore decline to accept the defendant's submissions in that regard. The remainder of the defendant's submissions on the amounts to be deducted from the claim for out-of-pocket expenses, as listed at paragraph 24 of MFI "12", seem to me to be arbitrary, and I do not accept those submissions.
On the basis of the extent and the detail of the payments made by the workers' compensation insurer in respect of the plaintiff's treatment costs, I find that the plaintiff's claim for past out-of-pocket expenses should be assessed as being in that amount, namely $54,796, plus an amount of $2129.70 which was paid by Medicare. The total amount is assessed at $56,925.70.
I therefore assess the plaintiff's out-of-pocket expenses in the amount of $56,925.70.

Dharamdas v Boateng

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Judgment (64 paragraphs)

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Cases Cited (31)

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