Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, (2000) 75 ALJR 3339

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Griffith's v Kerkemeyer (1977) 193 CLR 161

Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

MGCIA v Kenny & Good (1996) 135 ALR 743

Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283

Wilson v Piesly (1975) 7 ALR 571

1. Judgment be entered for the plaintiff in the sum of $594,865.41.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 17 February 1995 on Ginninderra Drive in Belconnen in the Australian Capital Territory. The plaintiff was driving home from work at around 5pm on a major arterial road, and noticed a problem in the traffic flow caused by the presence of a brick pallet in the roadway. A taxi had stopped to try to clear this obstacle, and the plaintiff slowed to stop behind the taxi. The defendant, who was driving behind the plaintiff, failed to stop, and collided with the rear of the plaintiff's car, pushing him forward into the vehicles in front. Liability was admitted, and the matter proceeded before me as an assessment of damages only. The matter proceeded to hearing over two days in April 2000, and was then adjourned on the basis that counsel would deliver written submissions on aspects of the superannuation claim. There were complications in developing these submissions, the last of which was received in my Chambers on 11 October 2000.

2. As a result of the accident the plaintiff claims ongoing problems with his lumbar back, neck and jaw, with ongoing pain and headaches. He was and remains a public servant, but the medical evidence on all sides seems agreed that as a consequence of his ongoing cervical and lumbar back pain he is now restricted to working less than full hours, and will probably remain limited to his present 20 hour working week. The real issue in this case is the extent to which this disability is accident related, or related to a longstanding degenerative condition in the plaintiff's cervical and lumbar spine. The plaintiff admits previous complaints of back pain, but says these were isolated instances, and while he took some time off work, he was able to return to full time duties, and continue an active involvement in a range of sporting and fitness activities until this motor vehicle accident. It is the plaintiff's case that his present condition is accident related.

3. The plaintiff was born in 1952. After completing his education to the end of High School he commenced employment in the Commonwealth Public Service in July 1971 at the Australian Bureau of Statistics. He has continued with a career in the Public Service ever since, with service in the Department of the Capital Territory, the Capital Territory Health Commission, the Department of Administrative Services, the Australian Surveying and Land Information Group, the Australian Protective Service and the Department of Immigration and Ethnic Affairs. He achieved promotion to the level of Clerk Class 11 in 1983, and has worked at that level, or its equivalent, up to the time of the accident, as a section head or director in finance and financial management positions. He had from time to time acted in Senior Executive Service positions as an Acting Assistant Secretary in the Department of Immigration and Ethnic Affairs in the Resource Management Branch. The plaintiffs claim is for economic loss based on the difference between his expected full time earnings and his present limitation. At a late stage in the proceedings the statement of particulars was amended to include a substantial claim in respect of lost superannuation benefits. After discussion with counsel I gave leave to amend to include this claim, on the understanding that the case would otherwise be dealt with that day, and that any submissions or evidence in reply on the issue of superannuation would be dealt with by way of written submissions and affidavit evidence, and that the defendant would have its costs in any event occasioned by this late amendment.

4. The plaintiff acknowledged in his evidence in chief that he had suffered episodes of back pain in the past and he was subject to considerable cross-examination on this issue. Given that it is common ground that the plaintiff suffers from a marked degenerative condition in his spine at both lumbar and cervical levels, this is of course crucial to the case. The plaintiff in cross-examination stated that he did not recall some matters which I am satisfied he had earlier referred to in conversations with doctors. Counsel for the defendant invited me to make a finding that the plaintiff was being deliberately untruthful in seeking to conceal the true extent of his back symptoms prior to the accident. He was also invited to see some video material of him engaging in what were in truth quite moderate gardening activities, involving holding a yard vacuum cleaner/blower device. He was most reluctant to concede that the person shown in his yard, working with his son, and wearing his clothes, was in fact him. Again, the defendant invited me to draw an adverse conclusion about his credit.

5. Against this, counsel for the plaintiff pointed out that the plaintiff has attended the same medical practice, the Florey Medical Centre, since the late 1970's, and his full clinical record has always been available. This is not a case where there is any suggestion of a plaintiff changing doctors in the hope of concealing prior symptoms. Moreover, the plaintiff has provided histories to some of the treating and medico legal doctors which provide a history of prior symptoms which fairly clearly match the most adverse version put forward by the defendant in cross-examination. This is quite inconsistent with a plaintiff attempting to conceal a medical condition. I am satisfied that the plaintiff has presented a fair picture of his past history throughout these proceedings, and while he has gone further in disclosures to doctors than he has in the witness box, his assertion under oath of a lack of memory is not, in my view, an indication of an intention to deceive. I am satisfied that the plaintiff has been generally truthful throughout, and accept him generally as a witness of credit.

6. In about 1984 the plaintiff had some time off work due to lower back pain following a fall onto his coccyx during a squash game. He says that he gradually recovered from this, and that this was a very different form of back pain, being localised to the base of the spine. He also referred to an incident in 1993 when he experienced a sharp pain in his lower back as he was loading groceries into his car. He attended his local general practitioner, and took about a week off work. He says he gradually recovered, and had no further back pain. He says, and this was supported by the evidence of his wife, that in the years leading up to the accident he would play tennis or squash weekly, as well as playing social cricket and golf. He denies regular back pain in this period.

7. His sick leave records show a period off work in November 1994 for "back injury". The plaintiff's evidence is that this was not the true reason for the time off work. He says that he had a vasectomy, and that there was then an infection, and that this was the true reason for the time off. He said that he was concerned that putting the true reasons for his time off would become common knowledge and subject of gossip through the department. He was not cross examined as to the veracity of this explanation, and it did match the general practitioners notes. I am satisfied that this was not an example of time off work due to a back injury, and I accept the plaintiff's explanation as to why he gave the reasons he did. The defendant did not invite me to make a generally adverse inference as to the plaintiff's honesty from this false reason, and I am satisfied that he had what he considered to be an appropriate reason to be less than fully frank as to the reasons for some time off work.

8. In cross examination Mr Hackett said that these were the only instances of back pain that he could remember, but he conceded that he did know that he had a condition known and described by doctors as spondylolisthesis in his lumbosacaral spine, and that he knew of this because it had been diagnosed many years ago following x rays. He said that he thought that this had been diagnosed at about the time of his 1984 squash accident, and that he had seen a chiropractor over a period of time after this. When he first saw his general practitioner after the present accident he recorded,

"He also complained of pain in the lumbar spine but stated that this had been under treatment for 12 years although only by a chiropractor."

9. Mr Hackett said in cross examination that this was not the case, and that it was probably a mistake from his statement that he had had chiropractic treatment about 12 years ago, referring to the 1984 incident. There is no evidence of ongoing chiropractic treatment, and I accept this explanation.

10. Mr Hackett was taken to notes from his general practitioner, which showed a series of consultations in 1989 for complaints of lower back pain. On 27 January 1989 the plaintiff attended his medical centre and complained of low back pain. His present general practitioner, Dr Cameron, was unable to identify from the handwriting which doctor had seen him, but he read the note to say,

"Recurrent lumbrosacral back pain (1984). Bad again today, was seeing chiropractor, not much help, on examination some lumbrosacral paraspinal spasm".

11. It appears he was prescribed voltaren and physiotherapy, and given a week off work. A note for three days later says, "improved a lot" and continues voltaren and physiotherapy.

12. There is a further record in his notes at the Florey Medical Centre for 7 August 1989, which states, "Lower back pain acute since squash game 3/52 ago Had on and off for three years." The doctor recorded a complaint of pain down both legs, and limitation of straight leg raising to both legs. He made a diagnosis, according to the notes of "disc prolapse?" and the plaintiff was prescribed anti inflammatories (naprosyn). He was given another week off work.

13. Although the plaintiff in cross examination said that he had no recollection of these events, he had told Professor Jones, who he saw for the purposes of a medico legal examination in October 1999 that a spondylolisthesis of 8mm had been diagnosed in 1984, and Professor Jones recorded, "He would get pain from his back intermittently and on perhaps four or five occasions since 1984." In cross-examination he said he had no recollection of saying this to Professor Jones, but in fact it accurately sets out the history as recorded in the notes of his long time family medical practice.

14. The plaintiff described the impact a quite severe, and I am satisfied that he sustained whiplash type injuries in the impact. I am also satisfied that he struck his head in the impact. He says that after the impact he felt shocked and nauseous, with a burning and tingling sensation in his shoulders and neck. He says that while he was making a statement to police he felt pain down his right leg. He was then dropped at Calvary Hospital by the tow truck operator who took his car away for repairs. His neck was x-rayed and he was given pain relief and allowed home. He was advised by the Hospital doctors to rest over the weekend, which he says he did. He had some urgent tasks on Monday to finalise some financial reports for tabling in the Parliament, and he attended work, but says that he was restricted in his movements, and had pain in his neck, lower back and leg. He also says that he became aware of pain and restriction of movement in his left side of his jaw. He left work early and attended his local general practitioner, who prescribed physiotherapy, and put him off work.

15. The report from the general practitioner, Dr Brooks, says that he initially presented on 20 February 1995 complaining of neck pain. It also states,

"He consulted me on 23/02/95 saying that he has awoken on 21/02/95 with a painful jaw joint on the left side."

16. I am satisfied that, although there is some confusion as to whether this first manifested on the Monday or the Tuesday following the accident, the jaw problem is related to the motor vehicle accident. This is supported by the report of Dr Vickers, maxillo-facial surgeon, of 3 April 1995. This condition was causing the plaintiff considerable difficulty, as it prevented him from eating solid food. He was advised to wear a jaw splint, and he began to use this, although it did not resolve the pain. In October 1996 he had arthrocentesis of the left temporomandibular joint with the injection of long acting anaesthesia and steroids, and this has been effective. The condition, however, caused him to have to use a jaw brace for a period of some 18 months. On review in March 1997 Dr Vickers said that the procedure had been successful and that the return of function to the jaw was about 75-80% of pre injury state. He noted that the plaintiff continued to use a night time splint as required and the plaintiff still wears this from time to time at nights.

17. His neck and back continued to cause problems through 1995 as he attempted to return to work. He was referred to Dr Newcombe by his general practitioner in September 1995. In his report of November 1995 he stated that a CT scan of the cervical spine of 30 May 1995 showed C5/6 and C6/7 cervical spondylosis with osteophyte formation, and x rays of the lumbar spine of 23 August 1995 showed spondylolisthesis with 8mm forward slip of L5 and S1 with pars inter articularis defects. This was confirmed by a CT scan of the lumbar spine on 4 September 1995. Dr Newcombe took a history that,

"Prior to this accident he had suffered from spondylolisthesis for which he had chiropractic treatment when he had occasional low back pain."

18. He formed the view that "as a result of the injury of 17.2.95 he has suffered aggravation of cervical spondylosis and aggravation of lumbar spondylolisthesis." Dr Newcombe expressed the view that Mr Hackett would only obtain substantial relief if he underwent surgery by way of fusion.

19. Mr Hackett says that he was and remains reluctant to undergo surgery. He obtained a second opinion from Dr Blum, consultant Neurosurgeon, at Randwick in August 1996. He confirmed that the plaintiff was suffering from the symptoms of a degenerative condition, and said that he did not believe that surgery was indicated, expressing the view that,

"My results for operating for this sort of pain is not good, I really think that no more than 30 odd percent get a worthwhile result from either the cervical or lumbar regions."

20. The plaintiff continued with physiotherapy and exercise programs through 1995 and 1996, and continued to attempt to return to work. His symptoms fluctuated with activity, and he was not able to return to full hours. He achieved consistent periods of 20 hours a week at work. In September 1995 he was referred to Dr McGrath, rehabilitation physician. He undertook a neck-strengthening programme, and underwent a joint block injection. By February 1997 he left Dr McGrath's care and continued with a home exercise programme.

21. He continues to see his general practitioner for medications in respect of pain relief for his neck and back, and for headaches. He has received some psychological counseling in respect of his adjustment to working restricted hours, but no report was served from a psychologist. He has been on antidepressant medication from his general practitioner.

22. Mr Hackett was reviewed by Dr Griffith, consultant surgeon, in May 1997. He concluded that the accident had rendered his underlying degenerative condition symptomatic. He said,

"Prognosis of degenerative disease in cervical and lumbar spine is for slow progression over decades. It is unlikely that he will suffer major acute prolapse or exacerbation of this nature. He will remain prone to further attacks of both cervical and low back pain, which is the natural history of this condition, as the years pass. Such exacerbations usually respond to conservative treatment and resolve to baseline levels if not completely. Spondylolisthesis may slowly progress over a period of months to years."

23. Dr Griffiths expressed the view that home exercises would be more effective than ongoing physiotherapy, which he said should be reserved for periods of exacerbation of his symptoms.

24. The plaintiff was seen in October 1999 by Associate Professor Jones, Senior Specialist, Department of Rehabilitation Medicine at Prince Henry Hospital. Professor Jones took a history which, as outlined above, referred quite fully to his history of previous back problems. He concluded,

" Mr Hackett has a multiplicity of problems some of which relate to a motor vehicle accident on 17.2.95. He has degenerative changes in his spinal column and the lesions at L5/S1 described as spondylolisthesis are due to constitutional impairment and have from time to time caused him symptoms. He also has degenerative arthritis of the cervical and upper thoracic region, which he said was asymptomatic prior to the accident of 17.2.95. In that accident he had soft tissue injuries with some irritation of nerve roots as they exit from the spinal canal in three cervical regions and he has facet joint symptoms causing him pain radiating across his head and presumably related to the distribution of the occipital nerve. I would accept that he as the symptoms that he describes and there is a direct nexus between those symptoms and the accident of 17.2.95 although his symptoms are superimposed on a previously asymptomatic constitutional degenerative arthritis. He has now various treatments including medications and has altered his lifestyle. I believe him to be independent in personal care and many activities of daily living although his vocational status is limited to approximately 20 hours per week. Despite those hours of duties he would still have various discomforts. He will not be able to return to his full time employment in the civil service and this is a factor in his feeling of malaise. Whilst there will be from time to time some alleviation of his symptoms, they will recur from time to time depending upon his physical activities and his level of stress and anxiety."

25. The plaintiff has been examined by Dr McEwan for the defendant. He acknowledged that the accident caused the jaw problem. In relation to the plaintiff's neck problems, Dr McEwan noted that the CT scan in May 1995 showed the presence of an osteophyte, which takes a considerable time to grow. He concluded,

"Because of the age of the degenerative changes seen in the cervical spine in May 1995 it is my view that cervical spondylosis with degeneration, particularly at C5/6 and C6/7 was present prior to the motor accident. The motor accident of February 1995 would have aggravated these changes. Such a period of aggravation would in my view last for about six months. The extent of the degeneration, particularly by the osteophyte, indicates to me that had he not had the accident he still would have developed the disability and incapacity arising from the cervical spine that he now has. However the onset of such disability and incapacity may not have occurred for a year or so after the motor accident and thus was accelerated by the motor accident. In my view he would have been in his present state of invalidity due to his cervical spine regardless of whether he had had this motor accident or not but the time of onset may have been somewhat later without the accident."

26. Dr McEwan took a similar view of the plaintiff's lumbar spine, saying,

"The defects in the (lumbar spine) is a congenital defect which would have been present since birth. Because of the presence of this congenital defect Mr Hackett would have developed low back pain with the sciatica that he now has even if he had not had this motor accident. The motor accident may have accelerated the onset of these symptoms. I believe that without the motor accident he still would have developed the same back symptoms and the same invalidity and incapacity within a year or two. It is my opinion that the onset of these symptoms may have been accelerated by the motor accident."

27. In his later report of March 2000 Dr McEwan accepted that the plaintiff's complaints of headaches did not predate the accident, and he accepted that his headaches were attributable to the accident. Dr McEwan expressed the view that the plaintiff will ultimately come to surgery, but that this will be entirely to correct his degenerative and congenital conditions, and will not be related to the accident.

28. Professor Jones has commented on Dr McEwans views, and stated that the opinion that the plaintiff would have been in his present condition within a year or so even without the accident is merely an opinion by Dr McEwan. His treating general practitioner was cross examined on this point, and stated that he disagreed with Dr McEwan, as degenerative conditions can take many years to progress, and the plaintiff had been very physically active prior to the accident. I am satisfied that, although there were isolated complaints of low back pain in the decade leading up to the accident, the plaintiff was generally very fit and active, and was also working long hours, in marked contrast to his condition since the accident.

29. I am satisfied that the accident has aggravated and rendered symptomatic degenerative changes in the plaintiff's cervical spine and a congenital condition in the plaintiff's lumbar spine that had previously been producing occasional symptoms. I am also satisfied that the plaintiff's problems with his jaw have been caused by the accident.

30. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sim which will put the plaintiff, so far as in possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

31. In relation to general damages, I assess the plaintiff on the basis of his jaw condition, which I find to be solely related to the accident, his headache, which I find solely related to the accident, and his neck and back pain, which relate to his pre existing condition but which I find to have been very significantly aggravated by the accident. The plaintiff's jaw condition by itself has had a significant impact on his life. He had difficulty with speaking and eating, and was required to wear a jaw brace constantly for about a month, and then for gradually reducing periods. He still uses this from time to time at nights. His headaches, which appear from the medical evidence of his general practitioner to now be under better management, continue to trouble him.

32. I am satisfied that the plaintiff has made very genuine efforts to continue working, and indeed the picture that emerges over the years since the accident is that the plaintiff has overdone it from time to time in seeking to extend his hours, or to meet deadline pressures, and has suffered relapses. He now seems to have achieved a stable level of work at about 20 hours, which the experts from both plaintiff and defendant camps seem to agree is the limit of his capacities

33. He continues to be independent in activities of daily living, and concedes that he is able to undertake some tasks around the house and garden. Video evidence was shown of him undertaking some gardening tasks, which did not seem to me to go beyond what he had told doctors he was capable of undertaking.

34. The plaintiff has maintained diaries of his daily activities since the accident on the advice of his solicitor. A call for the production of these diaries was resisted on the basis of legal professional privilege, and I am satisfied that the diaries were brought into existence for the dominant purpose of assistance in the preparation of these proceedings, and so meet the test for legal professional privilege under both the Evidence Act 1995 section 118 and 119 and the common law (Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, (2000) 75 ALJR 3339). The plaintiff acknowledged, however, that he had used the diaries for the purposes of refreshing his memory before giving evidence, and counsel for the defendant argued that this meant that, pursuant to s 122 of the Evidence Act, privilege was lost.

35. Section 122(6) provides:

`This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witnesses memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers)".

36. I am satisfied that, having been used by the plaintiff to refresh his memory before giving his evidence, the privilege that was attached to the diaries by s 119 of the Evidence Act has been lost, and I ruled that they were to be produced, following Lindgren J in MGCIA v Kenny & Good (1996) 135 ALR 743 where His Honour said at 744:

"In my view, the authorities show that the interests of fairness prima facie require that legal professional privilege be treated as lost where a witness, including an expert witness, has refreshed his or her memory for the purpose of giving evidence by reading a document to which the privilege attaches, and is called to give evidence by the party benefited by the privilege. The reason is that an important aspect of the fair treatment of the interests of the other party is that, that party have adequate opportunity to test the witness' evidence by comparing with the document the evidence which the witness gives."

(see also Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975 per Hamilton J)

37. The diaries confirm that as well as these normal activities the plaintiff has from time to time engaged in some maintenance activities on two investment properties. The plaintiff acknowledged this, but said that he suffered pain in the process, which is referred to in the notes. I am satisfied that the plaintiff has significant and genuine limitations on his activities, but nevertheless tries to engage in activities within his limits. He has not adopted a stance of total disability, and this must in the end be to his credit.

38. I accept that he was a keen sportsman and fitness enthusiast before the accident, and that he has been forced to give away competitive sports. He now swims for fitness and as an approved form of exercise for his neck and back, and undertakes aerobic fitness activities at a gym from time to time which do not stress his neck or back.

39. I accept that the loss of his sporting activities has caused him distress. I accept that he has been prescribed anti depressant medication by his general practitioner to assist him as he comes to terms with his reduced capacities, but I have not expert psychological evidence on which to make a finding of any significant depressive condition.

40. In assessing damages in respect of his neck and back I must take into account the fact that he suffered significant pre existing pathology by way of an asymptomatic degenerative condition in his cervical spine and a symptomatic congenital condition in his lumbar spine, as outlined in the medical evidence. I do not make the finding urged upon me by the defendant and supported by the evidence of Dr McEwan that these conditions would have become symptomatic in the way they now are within a few years of the accident in any event. I am satisfied that, while there were occasional, and I accept the description given by the plaintiff to Professor Jones of "four or five" as being broadly correct, instances of symptoms of lumbar pain in the decade or so before the accident, the plaintiff was able to continue with his active sporting pursuits, all activities around the house, including an enthusiasm for doing maintenance on his cars, and to work long hours in a demanding public service position, with only occasional interruptions. The accident aggravated the condition to a dramatic effect. I am satisfied, however, that the plaintiff's lumbar and cervical spine would have continued to deteriorate, and would have come to the present level of symptoms eventually, either by the normal course of aging, or as a result of some trauma.

41. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesly (1975) 7 ALR 571 Barwick CJ said at 575;

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

42. I therefore approach the question of damages mindful of the statement by the High Court in Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 where Deane, Gaudron and McHugh JJ said at 642:

"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events, which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would nor would not have occurred, or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring..........Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."

43. Taking all of this into account, I award the sum of $45,000 in respect of general damages, with $30,000 for the past, reflecting that the most significant effects of the jaw injury has now passed, and reflecting the inevitability of the symptoms of his back and neck becoming apparent over time. This generates interest of $3,417 and amounts to a total award of $48,417.

44. In respect of economic loss, I am satisfied that the plaintiff's time off work to date has been solely due to the accident related aggravation to his neck and back, and his jaw condition. I am thus satisfied that I should award economic loss for the past as particularised in the plaintiff's amended particulars of 11 April 2000 taking these figures forward to the date of judgment. This is based on the payments the plaintiff has received from Comcare, as well as the potential difference between his actual Comcare earnings and what he would have earned had the accident not intervened. There is also a loss of performance pay. I am satisfied that this amounted to an award of $183,364.47 at 11 April 2000, and taking this to the date of judgment and allowing for performance pay amounts to an award of $200,000. Of this, all but $24,724.86 has been paid to the plaintiff by way of periodic payments to 11 April 2000, so no interest is appropriate on this part of the award. I award interest in the sum of $8,000 on the balance to date of judgment which I take to be in the order of $28,000, making a total award for past economic loss of $208,000.

45. I am satisfied that the plaintiff has paid taxes on the incapacity payments in the sum of $36,883.08 in the period from 17 February 1995 to March 2000 and that this amount is properly to be awarded pursuant to the principle in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 and should be rounded up to the date of judgment to the sum of $40,000.

46. The plaintiff claims a future wage loss based on his inability to work for more than 20 hours a week. I am satisfied that this is indeed his capacity, on the basis of the medical evidence tendered by both the plaintiff and the defendant. The claim is particularised as on ongoing loss of $417.32 net per week. Counsel for the plaintiff invited me to also take into account prospects of promotion. It is the fact that the plaintiff had been on his present level for about 10 years, and evidence was provided as to the very competitive nature of contemporary public service employment, which no longer fits the description of secure lifetime employment. I find that, while the plaintiff would have had a chance of promotion, he would also have had the adverse chance of falling victim to the types of restructuring that are a common feature of contemporary public service employment, and that these contingencies effectively balance each other out. I am satisfied that the sum of $417.32 fairly reflects his reduced earning capacity. This claim is particularised to age 65.

47. The plaintiff was asked about his retirement intentions, and answered, no doubt honestly and against his interest, that he had made no decision. There was evidence from Ms McKay, a former senior executive service supervisor of the plaintiff, that she had retired at 55 at a time when the Department was encouraging older persons to take early retirement. Counsel for the defendant invited me to make a finding that the plaintiff would have done the same, but I am not satisfied on the evidence that I can make any specific finding here, other than that the plaintiff would have probably retired at some time between age 55 and 65.

48. I am satisfied on all of the medical evidence that the plaintiff's degenerative and congenital cervical and lumbar spine condition would have become debilitating absent the accident by about this time and certainly before the age of 65. In accordance with the principle of Malec v Hutton, I find that he plaintiff's accident related aggravation of his underlying conditions has caused him a loss of earnings at the rate of $417.32 per week which I will allow for the period of 15 years from the date of trial, taking him to an age of about 57, where I find the effects of the underlying condition, and probabilities of early retirement, would combine to end the accident caused impact on his earning capacity. This would amount to an award of $188,466, which when adjusted for the normal 15% contingencies amounts to $160,196, which I award.

49. The plaintiff particularised a claim for loss of superannuation entitlements, based on an employer contribution of 18.9% of salary. I am satisfied on the evidence that this is the present rate and that it is appropriate to award the plaintiff a superannuation loss on the same basis that I have awarded economic loss, that is, on the basis that the accident has limited his economic capacity to 20 hours for 15 years up to the age of 57. This should be calculated on the basis of his present salary. I thus prefer the approach adopted in the report of Ferrier Hodgson in relation to superannuation loss, and assess the loss presently valued at $85,000 and available to him to invest.

50. Out of pocket expenses were particularised in the amount of $36,691.91 plus travel costs which have been particularised in the sum of $2212.50 based on 25c per kilometer. I am satisfied that these sums have been reasonably incurred due to the accident, and award this sum, being $38,252.41.

51. Future out of pocket expenses are claimed at an ongoing rate of $3684 per annum. I am not satisfied that this represents the reasonable level of accident related future expenses, noting in particular the medical evidence relating to the need for future physiotherapy. I am satisfied that an amount for future medication in respect of pain relief is appropriate, and that the plaintiff does need to undertake regular swimming, which the experts have referred to as a better alternative, as a home exercise regime, than physiotherapy. In the absence of any psychological evidence I am not satisfied that anti depressant medication is indicated for the long term. I am satisfied that there will remain a need for the use of the jaw brace over the coming years, which is entirely attributable to the accident, and I am satisfied that there may be a need for a further procedure to the jaw. While the preponderance of the medical evidence seems to favour the view that the plaintiff will eventually come to surgery for his back, it seems to me that this is, on that evidence, directed to addressing the congenital and degenerative conditions, and so any need for surgery is not caused by, although it may be hastened by, the accident.

52. The life tables indicate that the plaintiff's life expectancy is 30.71 years, but I am satisfied that the bulk of the ongoing expenses relate to the accident related aggravation of the underlying conditions, which I have found adopting the Malec v Hutton approach, will have largely been overtaken by the natural progression of these conditions, and the contingency of unrelated trauma, after fifteen years. It seems to me that an award of the sum of $15,000, taking into account all of the abovementioned factors, amounts to an appropriate global buffer in respect of accident related future out of pocket expenses.

53. There is a claim particularised for past and future expenses pursuant to the principle in Griffiths v Kerkemeyer (1977) 193 CLR 161. I am satisfied that the plaintiff is not only independent in respect of normal activities of self care and daily living, but that he can and does continue to engage in household maintenance and gardening tasks. His teenage boys now do the lawn mowing, although he conceded that he had done this on occasions. He undertakes maintenance on his investment property. A cleaning lady has been engaged to perform household cleaning, and an ironing lady also assists, but I am satisfied from the evidence that these broadly coincide with the plaintiff's wife's return to the full time workforce, and the use of such domestic services seems to me to be a not uncommon incident of both spouses working. I am not satisfied that the re arrangements of domestic chores amount to more than the ordinary give and take of domestic relationships as referred to in Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283, and I am not satisfied that it sounds in damages. The plaintiff says that he formerly serviced both his motor vehicle and his wife's, and that this is now performed by a mechanic, as is the servicing of his motor bike, which he took up again in 1999. I am not satisfied that this claim is made out, and while I do not accept a submission that the occasional use of a motor bike indicates that the plaintiff has a significantly higher level of function than claimed, I am not satisfied that the normal cost of servicing motor vehicles has been transformed by this accident into a cost to be borne by the tortfeasor.

54. This amounts to a total award of $594,865.41 which I award, with costs, save that the defendant is to have the costs consequential to the late variation to the statement of particulars during the course of the trial.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Counsel for the Defendant: Mr Deakin with Mr Silvester