HIS HONOUR: The plaintiff Ghassan Kanoun was involved in a motor vehicle accident on the Anzac Bridge in the early hours of Monday 30 January 2012. The plaintiff brings an action for damages for personal injuries alleged to have been suffered by him in that motor vehicle accident. The defendants have admitted liability. This, therefore, is an assessment of the plaintiff's damages which are governed by the Motor Accidents Compensation Act 1999 ("MACA"). To understand the various issues arising in the assessment of the plaintiff's damages, it is necessary to consider his background.
[2]
Plaintiff's background
The plaintiff was born on 20 March 1958 in Tripoli in Lebanon. At the date of the motor vehicle accident now in question, he was aged 52. He is currently aged 58. There are inconsistent histories concerning his education. In evidence the plaintiff said that he was schooled to the age of 13 or 14. He was examined by a psychiatrist, Dr Thomas Oldtree Clark, for his own solicitors on 7 May 2013. The plaintiff told Dr Clark that he was educated to year 5. The plaintiff was also examined by a psychiatrist retained by the Medical Assessment Service established under MACA. That psychiatrist was Dr Sharon Reutens. Dr Reutens examined the plaintiff on 14 August 2014, and prepared a report bearing the date 31 August 2014. According to Dr Reutens was schooled to the age of 11. There is no reason to reject the histories obtained by the psychiatrists. The inference to be drawn is the plaintiff did not complete primary schooling in his native country.
In Lebanon the plaintiff did some work experience for a short while in a lawyer's office. He then worked as a salesman in a second-hand clothes shop until he migrated to Australia. That occurred on 8 October 1976 when the plaintiff was aged 18 years. He managed to come to Australia because his mother had previously come to this country and had obtained residency. The plaintiff, in essence, left Lebanon during one of the civil wars that have beset that country over the years. The plaintiff had no further education in Australia except learning English; however, his use of that language and his accent clearly show his background.
In 1977, in the year after he came to Australia, the plaintiff obtained work with Fred Clarke Australia as a cleaner. He worked as a cleaner for two years before being appointed as a packer. The plaintiff told me this of his work as a packer:
"Physically, I used to pack 250 240 sinks a day - sorry, I had to bend all the time - excessive bending..."
The sinks were made of stainless steel. In 1980 two important things happened to the plaintiff. He married on 2 September 1980, and also in that year he became an Australian citizen. The plaintiff and his wife went on to have four children. They are now all adults. The plaintiff and his wife have two sons and two daughters. At the current time his younger daughter and younger son remain living at home with their parents.
Sometime in 1987 the plaintiff sustained an injury whilst working for Fred Clarke Australia. He gave this evidence:
"I had a injury in 1987 because of excessive bending, then I went and checked with the doctor and he says, 'You can't do any more - lifting heavy stuff, so you have to rest.' Then they have provided for me a light duty job and I worked. And after that they couldn't carry me any longer and they said, 'You have to go on the dole.' So that's when I went on the dole and I was off work. Then in the meantime I was looking for light duty work."
I do know that the plaintiff was treated by an orthopaedic surgeon Dr G Mahoney who, on two occasions, manipulated the plaintiff's spine. The plaintiff gave that evidence on p 8 of the transcript.
The plaintiff has given histories that in addition to injuring his low back, he also injured his neck and a shoulder or shoulders. For example, the plaintiff saw Dr James Bodel on three occasions at the request of his own solicitors. On 6 February 2013, Dr Bodel recorded this history:
"There was an injury to the back, neck and shoulder in 1987. This was a work related matter while working for Fred Clarke Australia, a steel manufacturing company. He had two manipulations by Dr Mahoney in 1990 and he was off work until 1993 before he found the traffic control position where he was working at the time of the injury."
1993 was the year in which the plaintiff received a lump sum settlement in respect of his workers' compensation claim. He did not, however, find work as a traffic controller until 2003. The plaintiff reiterated that history to Dr Bodel on 14 July 2014 and also on 26 February 2015. The plaintiff also gave a history to Dr Reutens of the earlier injury with Fred Clarke Australia as involving pain in his back, neck and shoulder. The shoulder in question has not been identified, but it appears to be likely that it was the same shoulder the plaintiff maintains that he injured in the motor vehicle accident currently in question.
It is clear from the history of injury given by the plaintiff in the witness box, which I have already recited, that he did perform light duty work for Fred Clarke industries for some time before to his being dismissed in 1988. As I earlier mentioned, the plaintiff settled his workers' compensation claim in 1993, some six years after he injured himself. The plaintiff in evidence told me that he had problems in the affected area of his body between 1987 and 1993, and it then took a further four or five years for those problems to go away. That evidence can be found on p 73 and 74 of the transcript. In other words, for the plaintiff's symptoms to completely abate took until 1997 or 1998, a period of 10 or 11 years. No medical evidence was adduced by either party in these proceedings about the plaintiff's problems during that period.
The plaintiff told me that in addition to the injury of 1987, he was involved in an earlier motor vehicle accident in 1999. The plaintiff in his oral evidence told me that he injured his back and his right shoulder. The plaintiff's chronology, which was put into evidence as exhibit A, also states that the plaintiff injured his neck. The plaintiff was off work for either two or three days after this motor vehicle accident. The evidence concerning that can be found on p 10, 73 and 74 of the transcript. The plaintiff told me that he brought a claim and recovered $10,000. He told that he took, "A couple of years to settle down." That evidence is recorded on p 74 of the transcript. In other words, the plaintiff had symptoms from 1999 until sometime in 2001. One can see, therefore, the plaintiff may have suffered from symptoms in his back, neck and right shoulder from 1987 to either 1997 or 1998 and was involved in another accident in the following year and had symptoms from 1990 to 2001.
Although the plaintiff has admitted to all the medical practitioners, who have bothered to ask him about prior injuries, the earlier injury at Fred Clarke Australia, the plaintiff has failed to disclose to any medical practitioner the motor vehicle accident of 1999. Considering the plaintiff only was off work for two or three days, it may well have escaped him at the time and I draw no adverse inference in that regard.
The plaintiff's work history after being terminated by Fred Clarke Australia is of some moment. Dr Reutens has this history:
"Mr Kanoun told me that he was injured at that place of employment and said that he developed pain in his back, shoulder and neck. He told me that his employment was eventually terminated as he could not undertake the physical components of work. He left work in about 1987 and was awarded $50,000 in workers' compensation in 1993.
Mr Kanoun said that his health improved and he undertook door to door sales for approximately six months and then worked as a carpenter's assistant doing only light duties because of his physical limitations. He worked in delivery and as a dispatch manager until he obtained work in traffic control in about 2010."
The plaintiff, in fact, first obtained work in traffic control in 2003, but he obtained employment with the company for whom he was working at the time of the motor vehicle accident now in question in 2011.
In that history the plaintiff said he only returned to work after 1993 when he obtained the workers' compensation settlement. That, however, was not his evidence. The plaintiff told me that he obtained work with Action Shutters canvassing door to door for work. He said that he did that for six months until the company closed down. According to the plaintiff's chronology, exhibit A, this was sometime in 1990, going into 1991, that is before the plaintiff obtained his first settlement. The plaintiff then told me that he worked for A1 Carpentry. He said this of that work:
"I was looking after the guys, like, in charge. So, I wasn't doing any lifting. I was just looking after the guys, what they need, then I used to tell the boss, 'They need this' and see if they're working or not.
The plaintiff told me that he did that work for a year and a half. According to exhibit A, this was in a period between 1992 and 1993. The plaintiff told me that he went to Lebanon for six months. According to exhibit A that was between March and October 1993. One might infer that the plaintiff went overseas after obtaining his lump sum settlement. The plaintiff was then unemployed for some time.
According to exhibit A, he obtained work in 1996 with Better Tyres. That name has been mis-transcribed in the transcript as Beta Tyres. Although exhibit A tells me that the plaintiff worked for Better Tyres from 1996 until 2003, the plaintiff told me that he only worked there for two or three years. It was during his period of employment with Better Tyres that the plaintiff was involved in the motor vehicle accident of 1999. Just when the plaintiff worked for Better Tyres I do not know. He was involved in delivering tyres throughout the Sydney metropolitan area. He was required to lift tyres out of the back of a truck and deliver them to whoever the consignee was. One would think that that would be moderately hard work which would not be likely undertaken by someone with a bad back.
In 2003 the plaintiff obtained work with Melhem Civil. Melhem Civil is involved in excavation work. The transcript mis-transcribes the name as Mellin, and exhibit A mis-transcribes the name as Melham. The plaintiff told me that his work was this:
"I used to be on the gate, like, when the trucks came in, I used to stop the truck and I let the truck go in and come out."
Whether that work was done in a depot or at excavation sites I do not know, but it is essentially traffic control work of a light nature. The plaintiff worked for Melhem Civil until 2008 when he obtained work with HMS Traffic Control. Whilst working for HMS Travel Control, the plaintiff obtained a number of tickets. They are instructive as to the nature of the plaintiff's work as a traffic controller.
The first ticket was a blue ticket, which permitted the plaintiff to work as a man wielding a stop and go sign, or more likely, a stop-and-slow sign as the learned senior counsel put to the plaintiff, he was the operator of a "lollipop". The plaintiff's second ticket was a yellow ticket, which allowed him to place signs on the road, presumably warning traffic to slow down, and of work being performed ahead. The third ticket he obtained was a red ticket, which allowed him to amend a plan which was given to him telling him where the signs should be placed. Sometimes where the plan indicated the sign should be placed was not a suitable site, and the plaintiff could adjust the plan to put warning signs in suitable places. The final ticket the plaintiff obtained was an orange ticket, which enabled him to draw the plan showing where the warning signs ought be placed.
The plaintiff worked for HMS Traffic Control until they changed their name in 2010, when it also appears there was a change of ownership. The former owner opened a new company called Clearwater, and the plaintiff went to work for the new company, but only worked for them for two months before that business closed. The plaintiff told me that because of the closure of Clearwater, he lost his superannuation. The new company did not have money to pay him his superannuation entitlement.
It appears that either HMS Traffic Control/Evolution or Clearwater had been subcontracting to the Roads and Traffic Authority, and the plaintiff then, when Clearwater closed, obtained work with Workforce International, which was a contractor to the RTA. I do know that the plaintiff commenced working for Workforce International Pty Ltd on 4 March 2011. From both exhibit A and the plaintiff's description, it appears that, in essence, he was continuously, or almost continuously employed, doing traffic control work from 2003 up until the time of the motor accident now in question on 30 January 2012.
The plaintiff asked me to accept that this was relatively heavy work. Whilst some aspects of it may have been heavy, I do not accept that it was as heavy as the plaintiff asked me to believe. Clearly his work involved placing signs on the road, warning motorists or other road users of work being performed ahead and to slow down or the like. He would have to carry such signs and place them on the roadway or the footpath or the verge of the road. However, he did not spend all his working day carrying and placing signs. That was only a incident of working as a traffic controller, either using a stop-and-slow sign, or operating portable traffic control lights, or driving motor vehicles with direction signs on them, or warning signs on them, or otherwise monitoring traffic. The plaintiff was injured when he was sitting stationary in a car which was carrying a sign directing traffic to move to the right so that the oncoming traffic would not collide with a street sweeper which was ahead of the plaintiff's vehicle. The work which the plaintiff was doing as a traffic control man is quintessentially light duty work for a man with a bad back.
Prior to the motor vehicle accident now in question, the plaintiff had had pain in his low back, neck and right shoulder. Furthermore, although it has been overlooked by all medical practitioners and the lawyers involved in the current matter, the plaintiff had also had earlier problems with his left knee, which is one of the major injuries he sustained in the motor vehicle accident of 30 January 2012. Exhibit 6, the records of the Ingleburn Medical Centre, tell me that on 21 June 2004 the plaintiff presented with a strain of the medial collateral ligament of his left knee which he told the doctor he had had for "several weeks", and that he did not know how it had occurred. On that occasion the plaintiff was prescribed Mobic, a pain relief medication, and was given a certificate to be off work. For how long the certificate was, I do not know. After the motor vehicle accident now in question, in which the plaintiff says he injured his left knee, he has denied any previous problem with the left knee. However, the plaintiff was not challenged about the earlier complaint which I have just mentioned, so no adverse inference can be drawn against him for the failure to tell the medical practitioners about this earlier problem, and furthermore, the medical evidence before me does not establish that his current knee problem is related to any earlier problem of the medial collateral ligament of the left knee, although the plaintiff clearly injured his left medial meniscus in the motor vehicle accident presently in question. However, this is an inconsistency which, together with other inconsistencies, does throw doubts on the reliability of the plaintiff's evidence.
The plaintiff worked for Workforce International Pty Ltd on night shifts, he told me, from Monday to Friday, but the facts of the current accident indicate that the Monday shift started on Sunday evening, and the Friday shift probably finished on a Friday morning. The hours of each shift were from 9pm to 5am. The plaintiff told me that one Saturday each month he worked for six hours earning double the hourly rate. Consistently with what I have just found, it appears likely that the overtime shift was from Friday evening until Saturday morning. However, the issue of overtime did not loom large in the assessment of the plaintiff's damages.
[3]
The accident
The first defendant is a tow truck driver. The second defendant is North Shore and City Towing Pty Ltd. The statement of claim alleges this:
"[2] On or about 30 January 2012 at approximately 1.45am, the Plaintiff was driving motor vehicle registered number AZ 70 RA along Anzac Bridge, Glebe in the State of New South Wales.
[3] On the said date and at the said time, the first Defendant was driving the second Defendant's motor vehicle registered number 9820 TT along the said Anzac Bridge.
[4] At a point along the said Anzac Bridge, the first defendant collided with the rear of the Plaintiff's motor vehicle. Said collision arose as a result of the negligence of the first Defendant, being the servant and/or agent of the second Defendant."
The plaintiff described this accident on p 19 to 21 of the transcript. He was the driver of an Iveco utility truck which weighed one and a half tonnes. His vehicle was carrying a sign, having an arrow on it, and another sign indicating traffic should move to the right. His vehicle was stationary. The plaintiff was sitting in the cabin of the utility truck monitoring traffic. The plaintiff said this:
"I was sitting and just waiting for the guy who does the sweeping to - you know, every time when he moved, I have to keep 30 metres apart. I was waiting for him to call me, and I was monitoring traffic and I seen a vehicle normally we see cars coming very close and at the last minute a merge, but this one I seen it coming very close and I said, 'I hope he's going to merge.' I had no time to do anything, and suddenly I heard a big, big bang and I was - you know; my glasses was thrown away; the seat I was sitting on broke."
The plaintiff clearly was recounting the collision of a vehicle driven by the first defendant into the back of his utility truck. His car was pushed forward, he thought maybe 30 metres. It hit the sweeper that was in front of him.
The plaintiff gave evidence of his two legs being raised into the air by the first impact, and at the time of the second impact, his two legs landed on the dashboard. How the plaintiff's legs came to be above the dashboard is not clear from his evidence, but it is clear from a contemporaneous history that at the time of the accident the plaintiff had placed his feet up on the dashboard, no doubt because it saved his having to keep his legs bent when sitting in the utility truck.
Emergency services attended. They were an ambulance and the police. When the first ambulance attended, the plaintiff said that he did not need any treatment or transportation to hospital. However, when he was talking to a female constable of police, he commenced to experience symptoms in his left knee, and another ambulance was called to take the plaintiff to hospital. An ambulance record forms part of exhibit 4, the records of the Royal Prince Alfred Hospital. That shows the second ambulance as being booked at 2.51 and attending the collision site on the Anzac Bridge at 2.59. The ambulance officers, made contact with the plaintiff at 2.59am.
The first part of the narrative contained in the ambulance record is somewhat difficult to read; however, it bears a heading:
"MVA (leg pains) ."
The narrative commences with describing a male person who had been restrained, I assume, by a seatbelt. He was hit from behind by a tow truck travelling at approximately 60 kilometres per hour. The record goes on to record that the plaintiff was previously assessed by ambulance officers and refused transportation to hospital. On this occasion, the plaintiff was requesting the ambulance officers to, again, attend to him because of increasing symptoms. On examination, the plaintiff was well perfused, alert and oriented. He denied any neck or back pain, and denied any loss of consciousness. He was ambulant but desired assessment at the hospital. The anatomical diagram of the body shows the plaintiff as complaining of pain on the medial aspect of the right lower limb, and the lateral aspect of the left lower limb.
The plaintiff was taken to the Royal Prince Alfred Hospital. According at the ambulance records, they arrived at the hospital at 3.08. According to the hospital records, they arrived at 3.15. The plaintiff was, according to the ambulance records, taken off the ambulance stretcher at 3.21. The triage nurse was Mr Daniel Bedford. The triage notes complied at 3.38 contain this matter:
"MVA. Hit from behind. Wearing seatbelt. Speed less than 60 kilometres per hour. Nil head injury or loss of consciousness. Nil neck pain. Review by Central Distant Ambulance originally, refused transportation to hospital. Rang second time as increasing pain in calves. On examination, ambulating well. Nil obvious injury. 6/10 pain. Nil distress. Vital signs stable. Afebrile. Glasgow Coma Scale 15. Nil CP/shortness of breath. Equal air entry. Plan - analgesia. Await medical officer."
The plaintiff saw the resident medical officer, Dr Thomas Hughes, at about 6.10am. Dr Hughes dictated a discharge referral note. That is in these terms:
"Thank you for your ongoing care of this 53 year old man, who was involved in MVA on 30/1/12. He was stationary in his vehicle and was hit from behind at approximately 60 kilometres per hour, which pushed him into the vehicle in front of his. There was no neck injury or loss of consciousness, and was able to self-extricate from the vehicle. He thought, though was unable to recall exactly, that his ankles had been pushed into extreme dorsiflexion by the impact as they had been resting on the dashboard. His main concern follow the accident was bilateral calve and knee pain, and he had no other neck, head or upper limb complaints.
On examination, he appeared well with normal vital signs. He had full range of movement and good strength in both knees and both ankles, although he noted pain on plantar flexion bilaterally. His gait was also similarly affected due to pain, but he was able to walk independently.
His presentation was discussed with the ED registrar on duty, and it was felt that he had bilateral calf strain from overextension at the time of impact. Given his strength and range of movement, a muscular or ligamentous tear was felt unlikely.
He was felt safe for discharge, and advised to use simple analgesia, ice and limb elevation to alleviate his symptoms. He was also advised to seek medical review if his symptoms did not begin to improve within several days. He has been encouraged to mobilise gently in this time."
The Emergency Department Registrar who conferred with Dr Hughes was Dr Luke Robinson. The only medication given to the plaintiff at the hospital was Panadeine. No X-ray was performed. The history recorded by Dr Hughes, confirmed by Dr Robinson, was that the plaintiff's ankles had been resting on the dashboard immediately prior to the collision, which indicates how the plaintiff may have caused damage do his knee and calves. Objectively what happened on the Glebe Island Bridge at the Royal Prince Alfred Hospital does not indicate that the plaintiff sustained any major injury.
[4]
Treatment at Ingleburn Medical Centre
At the hospital, the plaintiff was given a certificate of unfitness for work for two days, Monday 30 and Tuesday 31 January 2012. On Tuesday 31 January 2012, the plaintiff attended the Ingleburn Medical Centre and saw Dr Patrick Lee. The records of the practice are a little unclear as to whether the attendance was on 31 January or 1 February. Certainly there was a certificate of unfitness for work issued on 31 January. However, the same set of notes seems to indicate that the first attendance was, in fact, on 1 February. On 1 February, the plaintiff was prescribed Norgesic, a pain killer. No history is recorded except an entry that the event on 30 January 2012 was to "both shoulders and both legs". There is also an entry indicating that the plaintiff was involved in a motor vehicle accident on the Anzac Bridge whilst doing cleaning. The cleaning was clearly being done by the sweeping machine, which was ahead of the vehicle in which the plaintiff was at the time of the accident.
Deciphering the records of the Ingleburn Medical Centre can be difficult. Those providing care are only identified by initials. The initials "PL" clearly refer to Dr Patrick Lee. The initials "ING" appear to relate to a receptionist or nurse or the like. The initials "ISA" clearly relate to an in-house physio therapist. Another relevant set of initials are "MPH" which again appear to me to refer to an in-house physiotherapist. It is unfortunate that histories set out against the dates 30 January 2012 to 1 February 2012 are so exiguous. It is difficult to know exactly what the plaintiff complained of when he first attended the practice. One of the issues in the present proceedings are whether the plaintiff injured his low back in the motor vehicle accident now in question. It is clear that there was no complaint of back pain to the ambulance officers or at the Royal Prince Alfred Hospital.
The first entry that I can find in the records of the Ingleburn Medical Centre concerning low back pain is on 30 October 2012, some seven months after the motor vehicle accident. I must discuss the notes of the Ingleburn medical practice at some length. On 2 February 2012, the plaintiff was seen by the physiotherapist "ISA". The entry made by that practitioner commence thus:
"Reports had a MVA on 30/01/12 after rear-ended by a table-top tow truck. Reports was thrown out of his seat at the time of the impact. Reports initially did not feel much pain. Since then has developed neck and upper back pain, as well as bilateral calf pain. Pain and limitation in all direction. Tender C2-T2 centrally and unilaterally. Tight upper back and neck muscles. Tight SCM. Denies any upper limb pins and needles resulting from the accident. Describes sharp pain at times."
There is then the sign indicating the "Latin recipe", indicating a prescription of something. What is, in fact, prescribed are a range of exercises which I am unable to translate. Importantly, the plaintiff's symptoms were between the second cervical vertebra and the second thoracic vertebra. I.e. in the neck and the top of the thoracic spine, nowhere near the lumbar spine. The next entry in the same set of notes is on 6 February 2012, again made by ISA. That entry commences thus:
"Reports found temporary relief following last visit. Reports has been compliant with exercises and tolerating them well. Reports has since developed bilateral knee pain. Reports work is aggravating his back and neck. Recipe: combined manual/ex based therapy approaches. Exercises: continued. Reduce work hours to four hours a day. ? GP to make judgment? Also, GP to note development of bilateral knee pain. Patient has been referred to GP for review.
Mr Turnbull SC for the plaintiff urged upon me the use of the word "back". In that entry was a reference to the low back, but I do not accept that. There is no suggestion of any new complaint other than of bilateral knee pain, which caused the physiotherapist to send the plaintiff back to see the general practitioner. The plaintiff had previously complained of pain in his upper back, and the proper inference to be drawn is that the back mentioned on 6 February is the same area of the back complained of on 2 February.
On the same day, after seeing the physiotherapist, the plaintiff saw Dr Patrick Lee. That consultation was all about the plaintiff's knees. In due course I shall point out that as a result of the motor vehicle accident, the plaintiff initially only had two days off work and then returned to light duties. Dr Lee's entry for 6 February 2012 discusses the plaintiff's ability to perform light duties. The next entry is on the follow day, 7 February 2012, by the physiotherapist ISA. Relevantly that says this:
"Reports back and neck improved after last visit."
Again, the only inference I can draw is that the reference to "back" is a reference to the back complaint previously noted in the upper back. The plaintiff saw ISA again on the following day, 8 February. No new complaint is recorded, but the notes do say this:
"Reports still getting some back pain."
When reference is made to the exercises, the physiotherapist said this:
"Introduce bike 5 and lumber extensions."
The reference to the bike is clearly is reference to some exercise performed on a exercise machine. Again, Mr Turnbull SC urged upon me that why would the physiotherapist add lumbar extensions if the plaintiff was not complaining of lumbar back pain. I, again, cannot accede to that without some evidence in that regard. A way of dealing with spinal pain is to maintain the strength and integrity of the spinal musculature. Physiotherapists often will work on the whole of the spinal musculature for a complaint in one area of the spine. The adding of lumbar extension exercises does not necessarily mean that the plaintiff was complaining of low back pain.
The plaintiff saw Dr Lee again on 9 February 2012. There was only reference to the plaintiff's neck and left knee pain. As far as the neck was concerned, it had "improved". On the same day the plaintiff saw the physiotherapist ISA, but the physiotherapist recorded that the neck pain continued. There is no reference to back pain on that occasion. There are entries on 13, 14, 15 and 16 February, but they make no reference to back pain. However, an entry made by ISA on 16 February says this:
"Reports still getting neck and back pain."
However, there is no suggestion that there was some new complaint. The inference to be drawn is that the back pain is reference to upper back pain.
On 21 February MPH records seeing the plaintiff for the first time. That entry is this:
"Car accident 30/1/12. Sandwiched between two trucks. Feels knee pain has been improving. Still has neck pain and shoulder pain. Compliant with exercises. Neck rotation/extension full range, neck flexion 50% pain. Lateral flexion 50% pain. Recipe STM/DTM, neck/thoracic spinal mobilisations, IF plus heat. HEP: neck AROM and knee AROM. Continue a/a."
The inference to be drawn is the plaintiff was complaining of pain in his neck and shoulders and knee, and there was a problem with the range of movement of the neck and knee. As far as the neck pain was concerned, there were thoracic mobilisations consistent with the earlier complaint of problems as low as T2; however, this entry does not suggest any low back problem. The plaintiff saw MPH again on 23 February 2012, and on that occasion that physiotherapist recorded that the patient was now "starting to develop left lower thoracic pain." Again, a new complaint, but confined to the thoracic back. The plaintiff saw MPH again on 1 March and told him that his shoulder/neck pain was "getting better", but the left knee pain was worse. A number of entries between 1 March and 18 March 2012 relate only to the left knee.
On 18 March the plaintiff saw Dr Lee, who noted the plaintiff's knee remained painful, although it was not as bad as it had been in the previous week, and the doctor recorded, "shoulder and neck all fine." On the following day the plaintiff saw MPH again and complained about knee pain and pain in the right thigh, but the, "neck and shoulders" were "good".
The plaintiff was attending at the Ingleburn Medical Centre fairly regularly. In fact, one might almost think almost daily. The entries after 19 March until 31 May 2012 make no reference to the neck or back. On 31 May 2012, the plaintiff saw Dr Patrick Lee. Dr Lee noted that the plaintiff saw his current solicitors, Brydens, on that day, and that the plaintiff required Dr Lee to complete a medical form for his "green slip insurance claim". The doctor there noted the plaintiff had more pain in his left calf on that day, but things were better with physiotherapy. Exhibit 8 is the medical certificate that is attached to the claim form for benefits under MACA. In answer to the question, "Medical diagnosis or description of injury", Dr Lee inserted this:
"Torn medial meniscus of left knee. Soft tissue injury of neck, shoulders, left lower limb."
There is no reference to the plaintiff's low back. The inference to be drawn was that as far as Dr Lee was concerned, as at 31 May 2012, the plaintiff had not complained of pain in his lower back.
Thereafter, I have closely looked at the records, and there appears to me to be only a reference to the plaintiff's left knee complaint until Thursday 30 August 2012. I shall in due course point out that the plaintiff had returned to light duty work sometime between 16 August and 21 August 2012. The entry on 30 August 2012 is this:
"Concern he has lower back pain after doing the physiotherapy on Monday. Pain worse of Tuesday. Felt the pinch at the lower back at work today. Worse."
That entry was made by Dr Lee. On the same day the plaintiff saw the physiotherapist, MPH. His entry commences thus:
"Back sore one hour after physiotherapy last week. Feels that leg press is causing pain + +. Felt pinch in lower back today at work doing normal activities. Nil heavy lifting."
Clearly both Dr Lee and the physiotherapist, MPH, could distinguish lower back pain to thoracic back pain and neck pain. The inference to be drawn is the plaintiff did not suffer lower back pain until probably Monday 27 August 2012. If that be correct, which in my view it is, then it is impossible to postulate any causal relationship between the plaintiff's complaint of lower back pain and the motor vehicle accident now in question.
[5]
No causation of low back complaint
The conclusion which I draw from the clinical notes of the Ingleburn Medical Centre is corroborated, as I have already mentioned, by exhibit 8, the medical certificate to accompany the motor accident claim form. One might also infer the same from exhibit B, Dr Patrick Lee's report of 5 March 2015 tendered in the plaintiff's case. If the first part of the report, Dr Lee lists the occasions upon which the plaintiff attended him, commencing on 31 January 2012. The second section of the report is headed, "The injuries sustained in the subject accident on 30 January 2012 ", and then follows this material:
"(a) Complex tear of the medial meniscus of the left knee which was surgically repaired by orthopaedic surgeon Dr Arash Nabavi in Chipping Norton
(b) Soft tissue injury of neck that settled not long after the accident
(c) Post trauma stress disorder with anxiety: he saw registered psychologist Ms Alba Felet from 9 September 13 to 23 January 14
(d) Chronic pain syndrome with persistent pain in lower back, hips and lower limbs."
A "chronic pain syndrome" is the modern euphemism to describe what was previously called functional overlay, which itself was a euphemism that could describe anything from overt psychosis to malingering. In the fifth section of Dr Lee's of 5 March 2015, the doctor points out that the plaintiff has mild degenerative changes in his lumbar spine, in his sacroiliac joints, in his hips and in his knees. He also points out that there was a Tarlov cyst at the S1 level. It then goes on to say:
"Chronic pain syndrome: Mr Kanoun continues expressing persistent pain in his lower back and left lower leg, despite various approaches in treatment with lengthy timeframe. There were no organic findings to support the symptoms he experienced. I referred him to see pain physician in October 2014. Due to financial reason, he has been waiting to attend the public pain clinic in Liverpool Hospital."
There is no evidence before me that the plaintiff ever attended the pain clinic at Liverpool Hospital. Clearly Dr Lee could not explain on any organic basis the nature of the pain in the plaintiff's low back. However, the way the report is set out clearly indicates that the complaint concerning the low back was not an immediate complaint, but one that developed subsequently.
Another thing that corroborates my conclusion that the plaintiff did not injury his low back in the motor vehicle accident now in question is the fact that no investigation of the low back was made until 6 March 2013, some 14 months later. If the plaintiff immediately complained of low back pain, even one or two days after the accident, I would expect a medical practitioner to arrange things such as plain X-rays, CT scan or MRI scan of the low back. None of those things was done. Yet another clue which corroborates the view I have formed is the history recorded by Dr James Bodel in his first report, that of 6 February 2012. On p 2 of his report, Dr Bodel sets out a "Summary of Injuries" the second of which is an injury to the "lower part of the back". Then follows a "History Relating to the Injury", which is this:
"This gentleman suffered an injury in the course of his day's work on 30 January 2012. He was at the time the driver of a four and a half ton Iveco utility. He indicates that this carries an 'arrow board' and is used as a safety truck at road works. He states that the accident occurred at 2am, and there were at the time a group of RTA vehicles on the Western Distributor heading to the Anzac Bridge. He was proceeding around a curve in the roadway as the final vehicle behind the other working vehicle and suddenly he was hit in the rear by another vehicle. He states that the impact pushed him 30 metres along the roadway and into the back of the truck that he was protecting.
On impact he was thrown up against the dashboard and then back. The back of his seat broke. He ended up with his feet on the dashboard.
An ambulance attended. Initially the ambulance did not take him to hospital, but he stayed there for a period and then collapsed. The ambulance returned and took him to the Royal Prince Alfred Hospital. He was checked over and then discharged home.
He later came under the care of his local doctor at a medical centre in Ingleburn and saw a Dr P Lee. He was complaining of increasing head and neck and right shoulder pain and he had some physiotherapy for that.
He [was] certified as being unfit for work for only a few days and then went back on to a lighter duty activities as another company known as Oldfield Brushes, which is in Campbelltown. He worked there three hours a day, three days a week.
He states that after two weeks he wanted to return to work at the
RTA but was not able to do so.
He became very anxious over the next three or four months.
He also states that during the day he had a cleaning job.
He developed increasing left be pain and had to see Dr Nabavi and was told he had a torn meniscus in the knee. An arthroscopy was recommended and that helped.
He has subsequently returned to work at Oldfield's, but as developed increasing neck and shoulder girdle pain. He has been working only two or three days."
The doctor then sets out a Past Medical History, which is not relevant, and the next part of his report is about "Previous Claims", where he sets out the injury to the plaintiff's back and shoulder in 1987. There is then a heading, "Subsequent Accidents or Injuries" under which Dr Bodel recorded this:
"Nil, apart from increasing neck pain recently."
There is then a heading, "Current Complaints", amongst which Dr Bodel belatedly sets out a complaint of pain in the lower part of the plaintiff's back. Nowhere does Dr Bodel record a history of the plaintiff's having injured his lower back in the motor vehicle accident now in question. Nevertheless, he appears to have accepted that because the plaintiff was now complaining of back pain, it must be related to the injury in question. Post hoc ergo propter hoc is a fallacy not only in logic but in law but also in medicine. The plaintiff has, as the report of the plaintiff's general practitioner says, degenerative changes in his lower back. They might become symptomatic at any time due to any event, and because they came on sometime after the motor vehicle accident, does not mean that they are causally related to it.
The defendant has qualified Dr Brian Noll, an orthopaedic surgeon. On the question of causation, in his report of 5 June 2013, Dr Noll says this on p 6:
"The available documentation indicates that the left knee injury was causally related to the subject accident. Although Mr Kanoun complained of neck and shoulder pain initially following the subject accident, symptoms relating to these regions have subsequently resolved, and no abnormality of these regions was noted on examination at today's assessment. There is no specific indication that he sustained a lower back injury at the time of the subject accident: There is reference to complaint of pain in relation to his upper back. In arriving at these conclusions, I take into account the following documentation:
- The medical certificate attached to the Personal Injury Claim Form, completed by his general practitioner on 31/05/12, some five months after the subject accident, makes reference to injuries in relation to the left knee, neck and shoulder and left lower limb. There is no reference to any injury to the lower back.
- His general practitioner's clinical records indicate that when seen some two days after the subject accident, he reported having developed neck and upper back pain and bilateral calf pain, and on examination was noted to have 'tight upper back and neck muscles' when seen again on 7/02/12 (a week after the subject accident) he reported having pain in relation to both knees, but more marked on the left than the right. The following day he reported having back pain (but the site of pain was not identified). The notes refer to 'neck and back pain' on 16/02/12' and 'neck and shoulder pain' (side not identified) on 21/02/12. Subsequent notes indicate that symptoms in relation to this neck and shoulder decreased, but his knee symptoms became more troublesome, particularly after he had 'walked a lot' at work "
I have canvassed the records of the Ingleburn Medical Practice more closely than Dr Noll, but clearly he reached the same conclusion that I have reached.
In submissions, Mr Turnbull SC for the plaintiff referred me to the opinion of Dr Gregory McGroder who assessed the plaintiff for the Medical Assessment Service established under MACA. Mr Turnbull submitted that Dr McGroder was probably more objective than Dr Noll. However, Dr McGroder was obviously somewhat confused. On p 7 of his ten page report of 15 May 2014, Dr McGroder said this:
"Dr B Noll, orthopaedic surgeon, submitted two medico legal reports, the first being 13 February 2013 and the second 5 June 2013. Dr Noll felt that the accident Mr Kanoun has sustained injuries to the lower back and the lower extremities. He estimated 1% WPI of the left partial medial meniscectomy and 2% for muscle wasting, and because of these conditions could not be combined, he used the higher figure of 2%. He outlines that the symptoms in relation to this neck and shoulder resolved completely without any impairment and my findings are similar. He estimated DRE category I for the lower back, although my findings were more consistent with DRE category II."
The report of 13 February 2013 was not a report from Dr Noll, but Dr Bodel's first report, in which Dr Bodel accepted some form of causation between the plaintiff's low back complaint and the injury, for a reason which Dr Bodel does not explain. Dr Noll did make the report of 5 June 2013, but clearly he did not accept that there was causation of the plaintiff's low back complaint. Given that confusion, Dr McGroder did not really address the issue of causation, a common failing amongst many medical practitioners who proceed generally on the basis of post hoc ergo propter hoc. I can make no reliance to Dr McGroder's assessment of causation in light of the obvious confusion which he had. I, therefore, do not accept that there is any causal relationship between the motor vehicle accident now in question and the plaintiff's low back complaint.
[6]
No ongoing neck injury
A similar issue concerns whether the plaintiff's neck complaints continue. I have already quoted Dr Lee's report of 5 March 2015, in which he pointed out that they settled "not long after the accident". In his report of 5 June 2013, Dr Noll said that the plaintiff's neck complaints had resolved completely. In his report of 12 May 2014, Dr McGroder said that the plaintiff's neck problems had resolved by the time of the knee operation on 14 June 2012. On 12 June 2014 Dr Sikander Khan, a general surgeon, qualified by the plaintiff's own solicitors, thought the plaintiff's neck complaint had "now resolved", and I note that his report contains no complaint of neck pain. Dr Reutens, who examined the plaintiff on 14 August 2014, said at p 6 of her report that the pain in his neck "had eased" at the time that she saw him. The plaintiff was re-examined by Dr Khan on 26 February 2015 and he, in his report, states that the plaintiff no longer had any symptoms in his neck. Finally, Dr Noll, who examined the plaintiff for the second time on 22 April 2015, said on p 3 of his report that the symptoms in the neck had resolved completely and said this on examination of the plaintiff's neck:
"He had a virtually full range of pain free neck movement. Neck movements were symmetrical and there was no evidence of muscle guarding or spasm. He did not report any pain with neck movement."
A person who might support ongoing neck symptoms is Dr Bodel. However, when he examined the plaintiff on 26 February 2015 he recorded this:
"He has tenderness in the trapezius muscles in the base of the neck on both sides and has a good range of neck flexion, extension and rotation in all directions. There is no asymmetry of movement or guarding in that region. He has full shoulder abduction and rotation, and no impingement or instability in the shoulders, and there is no lack of elbow, wrist or hand movement."
The only thing which might indicate a problem of the neck is some tenderness in the trapezii which are the base of the neck or the top of the thoracic spine. Whether a person has that tenderness is purely a subjective complaint. To accept that the plaintiff has ongoing symptoms in his neck of any moment, I would have to reject the opinions of Dr Lee, Dr Noll, Dr McGroder, Dr Khan and Dr Reutens. There is no reason for me to do that. Indeed the plaintiff, when cross-examined about this issue, maintained that he did not have any problem at the time each of the doctors examined him, but that did not mean that when he did something heavy he might have pain in his neck. However, the plaintiff gives no history of doing anything heavy. In fact, he avoids doing that. If the plaintiff has degenerative changes in his low back, one would think he would have degenerative changes in his neck. There is not even a plain X-ray of the cervical spine. I am not satisfied on the balance of probability the plaintiff has any ongoing problem with his neck, and clearly, when one looks at the records of the general practice, the last relevant complaint of neck pain appears to have been in March 2012.
[7]
No ongoing shoulder injury
The next issue arising is of like nature. It is whether the plaintiff's complaint in his right shoulder continue. Again, history is recorded by Dr Noll, Dr McGroder, Dr Khan and Dr Reutens, all indicate that the shoulder problem was transient and resolved completely by the time the plaintiff saw Dr Noll on 5 June 2013. Indeed when one considers the history, when one considers the findings made by Dr Bodel on 26 February, which I earlier recited, one can see that there was nothing wrong with the plaintiff's right shoulder at that time, nor indeed in his left shoulder. I am not satisfied that any complaints of pain in the neck or pain in either shoulders were other than transient, nor am I satisfied that at any time did it cause the plaintiff any relevant incapacity for work. Furthermore, it has to be borne in mind that the plaintiff has had similar complaints of pain in the back, neck and right shoulder in the past, and such problems could occur because of some underlying condition caused by earlier injuries.
[8]
Knee injury
However, it is clear to me that the plaintiff certainly injured his left knee in the motor vehicle accident now in question, that he tore his left medical meniscus and eventually he came to surgery for that condition. The plaintiff's immediate history, as far as his work and medical progress are concerned, is best set out in the report of Dr Noll of 5 June 2013. What I am about to recite from that report is consistent with the evidence given by the plaintiff and other medical records:
"He said that he's off work for two days [after the motor vehicle accident], and then returned to work undertaking light duties only. He said that he was employed by Workforce, an employment agency, and that his usual work was at a driver for the Roads and Traffic Authority (RTA). He said that when he returned to work, however, he was instructed to undertake light duties at a company called Oldfield's Brushes Pty Ltd where he undertook some work doing labelling and packing small items into boxes. He said that he, subsequently, elected to return to work at the RTA and resumed work as a driver but avoided any heavy lifting.
He said that some three and a half months after the accident he undertook work which involved walking some distance, and he became aware of increasing pain in relation to his calves and his left knee. He consulted his general practitioner, Dr Lee, and had a MRI scan of the left knee on 10/05/12 which revealed a complete tear of the medial meniscus. He was referred to an orthopaedic surgeon, Dr Arash Nabavi. He was advised to have an arthroscopic surgical procedure, and this was carried out on 14/06/12. A tear of the medial meniscus was confirmed, and he had a partial medial meniscectomy. He subsequently attended for further physiotherapy for a period of two to three months."
The work which the plaintiff did which required walking some distance was walking on both the Sydney Harbour Bridge and the Anzac Bridge. The MRI scan of 10 May 2012 is reported by Dr Mayat. It is said to show a small joint effusion which might be "physiological". Of the medial meniscus Dr Mayat said this:
"The medial meniscus demonstrates a horizontal tear traversing the anterior and posterior horns with a parameniscal cyst demonstrated anteriorly. The cyst is multiloculated with a maximal diameter of approximately 8 mm. The medial meniscus is displaced medially beyond the medial joint margin. This is suggestive of a flap tear."
Dr Lee sent the plaintiff to see Dr Nabavi who first saw the plaintiff on 24 May 2012. Dr Nabavi did not think that there was an effusion, but in light of the radiological appearances recommended an arthroscopic, medial meniscectomy. That procedure was performed at Liverpool on 14 June 2012 as day surgery. At operation, Dr Nabavi visualised an extensive tear of the medial meniscus and performed a partial, medial meniscectomy extending to the middle segment. He also noted a grade II chondral lesion in the femur and he performed a chondroplasty. The area was irrigated and also debrided of loose debris.
The plaintiff was reviewed by Dr Nabavi on 19 July 2012, four weeks after the arthroscopic surgery. There was no effusion on that day, and Dr Nabavi thought the plaintiff's anterior knee discomfort was "non-specific", meaning he could not refer it to any particular problem or any particular anatomical part. In this report of 19 July 2012, Dr Nabavi said that he encouraged the plaintiff to return to work "over the next couple of weeks" on light duties with a hope that he could be upgraded to full duties over a period of four to six weeks. However, that did not occur. The plaintiff saw Dr Nabavi on 16 August 2012, two months after the arthroscopy. According to Dr Nabavi's report of 16 August 2012, the plaintiff's medial knee pain had resolved, but he had some discomfort in the patellofemoral articulation which Dr Nabavi thought would respond to further physiotherapy. There was no effusion, and Dr Nabavi thought that there was a good range of motion. He was happy for the plaintiff to return to work on light duties. Because the plaintiff complained of some discomfort in his calf, he organised a Doppler scan to ensure that the plaintiff did not have any deep vein thrombosis. That was, in fact, carried on the same day and revealed no abnormality.
Shortly after that, the plaintiff did return to light duty work. In the general practitioner's notes for 21 August 2012, a note made by one of the physiotherapists it is noted that the plaintiff had returned to suitable duties by that time. The suitable duties were back with Oldfield's Brushes. In a report to an insurer of 6 September 2012, Dr Nabavi thought the plaintiff would make a full recovery within three to six months of his surgical procedure. Unfortunately that has not occurred. The plaintiff went to see Dr Nabavi on 20 November 2012, six months after the surgery. Dr Nabavi then noted the plaintiff had some discomfort over his patella tendon, which was injected with steroids and some local anaesthetics. By that stage, the plaintiff was performing light duties on a fulltime basis, and Dr Nabavi expressed an expectation that the plaintiff would be able to return to his pre injury duty over the ensuing three months. Unfortunately that did not occur.
As I earlier mentioned the plaintiff was seen by Dr Bodel at the request of his solicitors on 6 February 2013. On examination, Dr Bodel found a painful retro-patellar crepitus in the left knee and pain on resisted knee extension, but there was full extension and flexion to 130 degrees. There was no definite ligamentous laxity, nor was there any restriction of ankle or subtalar movement on either the left or the right side. Dr Bodel accepted the plaintiff had a problem in his left knee and thought that he was "not fit for labouring work", and that he would need to be "retrained in alternative duties". Unfortunately Dr Bodel does not tell me whether the plaintiff was unfit to work as a traffic controller.
On 11 February 2013, at the request of Dr Lee, the plaintiff saw Dr Tuan-Anh Nguyen, a rehabilitation medicine physician. Dr Nguyen assessed the plaintiff for his "chronic knee pain". He obtained a history of the plaintiff's having generalised pain in both knees, the left being worse than the right. Under the heading, "Impression and plan", Dr Nguyen said this:
"Mr Kanoun's pain symptoms seem to be mechanical in origin, especially given the history of increased pain only with weight bearing and relieved with unloading of the knee. The history of intermittent clicking raises the possibility of meniscal or cartilage damage, although there may also be a degree of degenerative arthritic changes. His weight gain since the accident would also exacerbate the stress on his knee and his subsequent pain symptoms. The calf pain is likely due to altered biomechanics when standing and walking as he seems to plantar flex his foot during dynamic tasks due to his knee pain. The pain has obviously interfered with his ability to return to full duties and has also affected his mood."
Dr Nguyen then recommended further radiological assessment, the commencement of Panadol Osteo, a review by Dr Nabavi when the further radiological investigations had been made and a review of the plaintiff's diet and cardiovascular exercise program.
A further MRI scan was performed on 18 February 2013 at Dr Nguyen's request. It showed features of the previous partial medial meniscectomy, but no definite re-tear was demonstrated nor was there any evidence of any parameniscal cyst.
The plaintiff was reviewed by Dr Nabavi on 22 February 2013, and as far as Dr Nabavi was concerned, the recent MRI scan demonstrated that the plaintiff's left knee did not have any residual mechanical problem because the MRI was "normal". Dr Nabavi then said that there was nothing further that he could do.
Dr Nguyen had also referred the plaintiff to Mr Gaven Williams, a specialist physiotherapist, for treatment of left knee pain and also of low back pain. In a report of 6 March 2014 Mr Williams said this:
"I re-assessed him today. Mr Kanoun's back and knee pain reporting has improved considerably. He told me he is bending to garden, mowing his lawn and is able to walk for 30 minutes."
The latter observations need to be considered later when considering the plaintiff's claim for attendant home care services. Eventually on 6 March 2013 an MRI scan was performed of the plaintiff's low back. This was ordered by Dr Nabavi. It is said to show mild facet hypertrophy and a thickened ligamentum flavum between L3 and L5 but without any significant spinal canal stenosis. There was a cyst at S2, but although it displaced the exiting right S2 nerve root, there was no definite compression of that nerve root. Suffice it to say, no person who has examined the plaintiff's low back has ever found any sign or indeed symptom of S2 nerve root compression.
Because of the plaintiff's complaint of low back, Dr Nabavi sent the plaintiff to see Dr Balsam Darwish, a neurosurgeon and spinal surgeon for treatment. Since the back condition is not related to the accident, it is really not necessary for me to discuss Dr Darwish's reports, except to say this: on 30 April 2013, the plaintiff's gait was normal, straight leg raising was 90 degrees bilaterally, there was a negative nerve stretch test, the plaintiff had normal muscular sensation in both lower limbs: in other words, objectively there was nothing wrong with the plaintiff's back.
The next medical practitioner to see the plaintiff was Dr Clark, who examined him on 7 May 2013. The plaintiff saw Dr Clark at the request of his solicitors, Messrs Brydens. Dr Clark thought the plaintiff had a 15% whole person impairment because of his psychiatric condition. That assessment was not made by Dr Reutens, who assessed a 2% WPI because of the plaintiff's psychiatric condition. Dr Clark's opinion is not particularly helpful on any issue because, for example, he took no history of the plaintiff's injuries of 1987 and 1999, nor how the plaintiff reacted to those threats to his health, wellbeing and ability to earn his livelihood in the past. Dr Clark thought that there was a moderate impairment of self-care and personal hygiene, of which the plaintiff makes no complaint. He felt that there was also moderate impairment of social and recreational activities. The only recreational activity of which there is any history is the plaintiff's playing snooker. He thought that there was mild impairment of his ability to travel, but, again, there is no evidence to support that. He thought that there was moderate impairment of social functioning, and mild impairment of concentration but nothing that the plaintiff said tells me anything about such things. He thought that there was mild impairment of the plaintiff's employability because of his psychological condition which he diagnosed as post traumatic stress disorder.
Dr Noll, as I have already mentioned, examined the plaintiff on 5 June 2013. He did not think the plaintiff had sustained any injuries which were likely to result in an impairment of his future earning capacity. He thought that there was a 3% WPI because of the plaintiff's left knee.
The plaintiff's services were terminated by Workforce International Pty Ltd on 5 July 2013. Unfortunately the plaintiff said the date of his termination was 25 July 2013, and that was taken into account in some of the calculations made by counsel for the plaintiff at the hearing. However, I have readjusted to take into account the reality. As I have already mentioned, the plaintiff was performing at the request of Workforce International Pty Ltd, work at Oldfield Brushes at Campbelltown. In a letter of 3 July 2013 addressed to the plaintiff, which is exhibit R, the plaintiff's former employer said this:
"As discussed, suitable duties at Oldfield's are no longer available for you. The company has been endeavouring to identify other suitable duties for you. Unfortunately, due to lack of available duties in the area, which suit your medical restrictions, the company is unable to provide further duties for you. Consequently, your employment with Workforce International will now be terminated. Your last payment with Workforce International will be the week ending 5 July 2013."
Since that time I have been provided with several reports from Dr Darwish who continued to treat the plaintiff's low back until January 2014 and medico-legal reports, which include the reports of the two assessors appointed by the Medical Assessment Service pursuant to MACA. Dr McGroder thought the plaintiff had a 8% WPI because of a 3% WPI referable to his knee and 5% WPI referable to the lumbar spine. Clearly I would not accept the lumbar spine as causally related to the accident now in question. Dr Sikander Khan, as I said, was qualified by the plaintiff's solicitors. He saw the plaintiff on 12 June 2013. When asked to state the nature and extent of the plaintiff's ongoing disabilities he said this:
"Briefly, Mr Kanoun continues to have ongoing symptoms and disabilities involving the back and left knee and some psychological sequelae including anxiety while driving a car, intermittent flashes of the accident and sleep disturbances. He has difficulty in climbing up and down ladders and stairs, prolonged walking and heavy lifting."
Clearly, work as a traffic control man requires the plaintiff to be on his feet most of the time. Clearly his pre-injury work involved prolonged walking at times. He was required to walk on both the Anzac Bridge and the Sydney Harbour Bridge. There is also evidence that at one stage he was required to climb stairs on the Sydney Harbour Bridge which caused a problem with his knee. However, his work did not require him to climb up and down ladders. Dr Khan went on to say that the plaintiff was unfit for his "normal pre injury duties" without exactly telling me why.
Dr Bodel in his report of 14 July 2014 said this:
"He should be capable of a return to the traffic control work. Improved physical fitness levels will enhance his ability to return to the workforce and to his pre injury work."
I should point out that Dr Bodel appears to have accepted some ongoing symptoms in the back, right shoulder and neck as also giving the plaintiff some cause for concern. Dr Reutens diagnosed an adjustment disorder with anxiety. She thought that the plaintiff's physical pain affected his sleep and caused his current inability to work rather than any psychiatric condition. In his second report of 27 February 2015, Dr Sikander Khan said this:
"Your client is unfit for his pre injury normal duties.
He should be fit for light sedentary or semi sedentary work of light packing or light process work while seated behind a counter or desk with a facility to get up and walk around at will with a weight lifting restriction of five kilograms. He should avoid frequent bending, twisting, squatting and frequent climbing up and down ladders or stairs."
The restrictions in the last sentence of that assessment would not prevent the plaintiff from doing his pre-injury work. In this final report of 26 February 2015, Dr Bodel does not express any view about the plaintiff's ability to perform his pre-injury work.
In his final report of 22 February 2015, Dr Noll said this:
"The objective findings of today's assessment indicate that he does have a mild ongoing disorder of his left knee. Although unlikely, it is possible that this would preclude him from resuming his pre-injury work as a heavy utility vehicle driver if he were required to drive a vehicle with manual transmission. He would, in my opinion, be able to drive a vehicle with automatic transmission.
[It] is quite possible that despite the complaint of left knee symptoms and symptoms in relation to his calves, he would also be able to undertake other less strenuous work if he chose to do so.
In my opinion, any ongoing difficulty which he has had with regard to bending and lifting due to lower back pain would appear to be unrelated to the subject accident."
With the last statement in that opinion I concur. However, it should be noted that the plaintiff's work was not merely driving a utility truck.
His work was in traffic control, which often required standing or walking on the roadway or road-related surfaces. I accept that with the state of the plaintiff's knee, as it now is, the plaintiff could not do regular eight hour shifts involving the full range of duties of a traffic control person, a man who had to stand and use a stop or slow sign, a man who had to direct traffic manually, a man involved in setting signs out, walking distances on bridges such as the Anzac Bridge and the Sydney Harbour Bridge. Clearly Workforce International Pty Ltd also was of the view that the plaintiff could not do so. At one stage they provided him with alternative work as a traffic controller which did not involve any lifting, but they could not do so after the plaintiff's surgery. They provided him with work at Oldfield's Brushes, but then were unable to provide that work, leading to the plaintiff's retrenchment from that employment.
[9]
The plaintiff's history since retrenchment
I return now, after having considered the medical evidence, to recite what has happened to the plaintiff since the termination of his service on 5 July 2013. After the termination of his service, the plaintiff applied for and received a carers pension backdated to the time of his termination. He has only made one attempt since the termination of his services to find a job. That was discussed in cross-examination on p 57 and 58 of the transcript. The plaintiff was offered by a friend or relative a job using his car to drive children to school, taking maybe an hour or an hour and a half in the morning and a particular period each afternoon; however, his application for that job was unsuccessful. Other than that, the plaintiff has made no attempt to find any work at all. In cross-examination the plaintiff admitted that he could work fulltime doing a light duty job if one were available to him. That is completely logical because he was doing a fulltime light duty job immediately prior to the termination of his service by Workforce International. The plaintiff's position is, however, that he does not know what work he can do.
It is necessary to consider the situation of the plaintiff's family as it applies to two issues. One that I have just identified, the plaintiff's motivation to work and his ability to do alternative work, and, secondly, the plaintiff's claim for gratuitous past care and future paid care pursuant to the principle in Griffiths v Kerkemeyer.
The plaintiff's position, in-chief, was that he had to help out inside the house prior to the motor vehicle accident because of a medical problem that had beset his wife. The plaintiff said on p 34 of the transcript that he helped with the cooking and cleaning within the house. The plaintiff then gave evidence to establish what work he did prior to the accident which he said he was unable to do immediately after the accident. The plaintiff said he did yard work which took up one hour. He said he did work hanging out washing on the clothesline which occupied two and a half hours each week. The plaintiff said that the household washed two loads of washing a day, that is, fourteen loads of washing a week. He spent one and a half hours each week vacuuming the house. The plaintiff said that he spent two hours a day either cooking or assisting with the meals. The total of those hours is seven. The plaintiff said he was unable to do that seven hours of work between 30 January 2012, the time of the motor vehicle accident now in question, and 14 June 2012 which was the date on which he underwent the medial meniscectomy. That period appears to me to be four months and two weeks, but it was consistently referred to Mr Turnbull SC as being six months.
The plaintiff was off work for ten weeks, commencing on 14 June 2012; that is, undergoing the operative day surgery and the necessary recuperation therefrom. During that period, the plaintiff said he was also unable to do work cleaning the pool which he said took one hour per week. That was only after some cross-examination by Mr Turnbull. This evidence was given, commencing at p 35 of the transcript:
"Q...I think you told us you spent about two and a half months recuperating from that?
A. Yes.
Q. Were you able to do any of the domestic chores during that time?
A. That's right.
Q. Were you able to do any of those chores whilst you were recuperating?
A. Can - can you repeat it.
Q. Could you do any of the vacuuming or other chores? The yard work? Whilst you were getting better from the knee operation, could you do any of those chores?
A. Yeah. I yeah I do but slowly.
Q. This is in the first two and a half months after the operation I'm asking you about?
A. Two? No. No."
The inability to do the pool work during the second period, i.e., the two and a half months, is set out on p 37 of the transcript.
The plaintiff's daughter, Hadayet, gave evidence in the plaintiff's case. She said that before the accident, the plaintiff had done both what the plaintiff referred to as yard work and pool work and cooking and vacuuming within the house and hanging out washing. However, as far as the cooking was concerned, this evidence was given in cross-examination:
"Q. In terms of the cooking, the fact was before the accident your mother did the majority of the cooking; didn't she?
A. No, I helped as well.
Q. So it was basically between you and your mother, the cooking duties before the accident?
A. It depends on the cooking to be honest. Sometimes, yes, my dad will get involved before the accident, yes.
At the foot of the same page of the transcript, p 88, this evidence was given:
"Q. To the extent to which he helps out with the basic cooking now, to the extent that he may have helped before, that's what he did before the accident; wasn't it? A little bit of help?
A. Yes, but he might have helped more, a little bit more, before the accident."
In other words, in the extent of the plaintiff's involvement in cooking before the plaintiff's accident appears to have been minimal.
There is a discrepancy too between the plaintiff and his daughter as to how much washing was done in the family. The plaintiff's daughter said that there were five or six, maybe more, loads of washing done each week. The "maybe more" may extend that to seven or eight; however, that does not get it out to fourteen loads of washing a week. There are problems with this evidence and inconsistencies. Particulars were requested from the plaintiff's solicitors on 14 June 2013 by the defendant's insurer. That request for particulars and the reply thereto is exhibit 2. Question 8 is this:
"Please supply full particulars of all attendant domestic or nursing assistance provided and/or claimed for the past and/or the future arising from the accident the subject of the claim, including:
(a) a description of duties performed for the claimant for the past, or claimed to be required for the future on a week-by-week basis: "
The answer supplied was that the claimant obtained domestic assistance from his children, all four of whom are listed, and then list is given:
"(a) gardening, cleaning, cleaning the pool, any heavy lifting."
Question 8(g) required the plaintiff to provide details of all domestic activities usually carried out by the claimant before the accident. The answer supplied was this:
"The claimant performed heavy lifting work around the house such as shifting furniture, including gardening and cleaning the pool."
Question 8(i) required the plaintiff to provide details of the manner in which the performance of domestic activities and the persons performing them in the claimant's household had changed since the claimant's accident, if at all. The answer supplied was this:
"The claimant is no longer able to perform any heavy lifting, bending or squatting work."
The answer supplied does not really answer the question; however, it is clear that the plaintiff's solicitors were telling the defendant's insurer that before the accident the plaintiff did heavy lifting work around the house and did gardening and cleaning the pool. That is what the plaintiff referred to as yard work and pool work. There was no suggestion that the plaintiff did any cooking or vacuuming or the hanging out of washing.
The next inconsistency is an inconsistency in histories given by the plaintiff to medical practitioners. On 5 June 2013, the plaintiff told Dr Noll:
"He said that his wife normally undertakes the household chores and has continued to do so.
He drives an automatic car. He said that his wife normally does the household shopping and cooking."
In other words, what the plaintiff was telling Dr Noll is that his wife did the chores within the house and the cooking. Dr Reutens has this history:
"Mr Kanoun's wife conducted the housework, cooking and shopping while he was responsible for home maintenance, gardening and they both paid the bills."
That appears to me to postulate the position that the plaintiff's wife maintained the interior of the house and the plaintiff did the exterior work. The plaintiff saw Dr Noll for a second occasion on 22 April 2015 and the doctor has this history on p 4:
"He said that his wife previously undertook all the household chores, but her medical condition has deteriorated and her daughter now helps with household chores. He said that he also assists with household chores at times.
At the time of the previous assessment he said that he had been unable to resume outdoor maintenance activities, such as mowing the lawn and trimming the hedges. At today's assessment, however, he said that he is now able to mow the lawn, but remains unable to undertake domestic maintenance activities such as painting and any activities which require the use of a ladder.
He drives an automatic car. He said that his wife no longer does the household shopping and cooking, and that he and his daughter now undertake this activity."
Another thing which tells against the plaintiff's claim for domestic assistance and the like is my assessment of that plaintiff's evidence and that of his daughter are grossly exaggerated. I tend to rely on inconsistencies. For example, I have just quoted from Dr Noll's assessment in which he was told that the plaintiff was unable to do activities which required the use of a ladder. The plaintiff in cross-examination admitted that that was incorrect. The plaintiff was asked in cross-examination whether he had done any ladder work since the car accident. He admitted that he had. When asked what ladder work he had done, he said that he had a tree and that he had to remove a branch from it and he climbed a ladder to cut the branch off. Later this admission was made:
"Q. Mr Kanoun, let's take this one step at a time. What you told Dr Noll was that you had been unable to undertake any activities which required the use of a ladder. Now, that statement was untrue, wasn't it?
A. Yeah, because I said it and I used it, yeah... I mean, just to work as a painter on the thing, I can't do. That's what I meant at the doctor's."
In other words, there was confession and avoidance. The plaintiff was then asked how many times he had used the ladder to do work and he said, "Maybe a few times." It was then suggested to the plaintiff that since the accident he had done outside gardening and maintenance work and he admitted that he had. Furthermore, when I consider working on a ladder, one must have regard to what is contained in the general practitioner's notes in April of 2012. On 23 April 2012 the plaintiff saw the physiotherapist MPH. The plaintiff said that he was climbing a ladder a lot on the weekend and his knee was extra sore. On 26 April 2012 the plaintiff told Dr Lee that he had been better until he climbed a ladder at home when he felt pain in his left knee. He also said that his left knee was painful if he walked for more than 400 metres. Again, it is clear that as early as April 2012, before the surgery to correct the problem in his left knee, the plaintiff was climbing ladders.
I have already adverted to the discrepancy in the evidence of the plaintiff and his daughter as to how many loads of washing were done in the family each week. It also appears to me as a tribunal of fact in living in our community that for a man to spend two and a half hours each week hanging washing on the line for a family of four is grossly exaggerated. Furthermore, if the plaintiff can do work on a ladder, why I ask, rhetorically, could he not work standing on the ground hanging washing on the line? A neck problem would not prevent him from doing that, but a back problem, knee problem or shoulder problem might, but, as I said, I do not accept that the plaintiff has any ongoing problem in his neck or right shoulder, or any ongoing problem in his back that is related to the motor vehicle accident now in question.
There are also other inconsistencies between the plaintiff and his daughter. For example, the plaintiff said that in the period from 30 January 2012 to 14 June 2012 he could not do six hours work per week, but his daughter said that she provided five hours work in lieu of the work her father could not do. In the period from 14 June to approximately 20 August 2012, the plaintiff said he was unable to do seven hours work per week, but his daughter said that she was performing 15 hours of work extra per week; and, in addition, the one hour spent cleaning the pool was not done by her, according to the plaintiff, but by the plaintiff's son. The plaintiff's daughter says that since August 2012 she is performing seven hours work extra per week, replacing the six hours work done by her father, but the plaintiff himself admits that he now does more around the house than he ever did prior to his wife falling seriously ill. Furthermore, the plaintiff's daughter says that she does work in the yard moving potted plants around, which she estimates takes one hour per week, but there is no evidence from the plaintiff at all about her doing any such work or of his having potted plants that needed to be moved around.
I found the evidence concerning the Griffiths v Kerkemeyer claim quite unconvincing. I am not persuaded on the balance of probabilities that at any time has the plaintiff been unable to provide domestic assistance for more than six hours per week, or has had need of domestic assistance for more than six hours per week. He may have required some domestic assistance immediately after the operative treatment for a few weeks, but in my view two or three weeks would have been more than enough.
There is also a further inconsistency in that the plaintiff's case is that during the ten weeks post-surgery, when his daughter said she did 15 hours extra work per week to care for the plaintiff, as distinct from caring for the plaintiff and his wife, that his daughter was still working fulltime from Monday to Friday as a fraud officer for Westpac Bank. It wasn't until September 2012, after the plaintiff returned to doing light duties with Workforce International, that the plaintiff's daughter changed from doing fulltime work during the week to doing part time work on weekends only. The plaintiff's daughter was caring for the plaintiff's wife and working fulltime and asked me to believe that during the ten weeks that the plaintiff was recuperating from the medial meniscectomy, that she spent an extra 15 hours per week caring for the plaintiff. This is just unbelievable, literally. In my view, those findings dispose entirely the plaintiff's claim under Griffiths v Kerkemeyer as regulated by MACA.
However, an issue remains as to the plaintiff's motivation to work. Whilst the plaintiff's daughter stayed at home only working part time on weekends, the plaintiff is still able to go to work as he did when he was performing light duties between August 2012 and July 2013. Uninjured, I accept that he would have kept working with Workforce International doing traffic control work that he was doing prior to the motor vehicle accident. Since the deterioration of his wife's health, because his daughter stayed at home during the week to care for her mother, and since the plaintiff was available to care for his wife on weekends when his daughter worked, he continued working until his services were terminated. The deterioration in the wife's condition would not, as such, interfere with the plaintiff's ability to keep working. The only thing it might interfere with was the plaintiff's ability to do one day's overtime each month. I believe that with a sick wife at home and two children living at home, one of whom, his daughter, was losing income in order to care for her mother, that the plaintiff would, if he could, find work.
[10]
Evidentiary onus regarding economic loss
In my view, the difficulty in the present case is not the plaintiff's motivation to work, his willingness to work, but the problem is the availability of work which he might perform. It appears to me that the plaintiff was on the periphery of the labour market prior to the motor vehicle accident now in question in any event. He was doing quintessentially light duty work for a man with a bad back. That light duty work required him to be on his feet most of the time. I accede to the submissions put to me by Mr Turnbull SC, that given the plaintiff's age, in his late 50s, given the level of his education, which was less than a full primary school education in a foreign country, and given his work history, being on the periphery of the labour market in any event, only able to do light duty type work and given his ability in English, which is limited, and bearing in mind the fact the plaintiff is now injury-riddled, he would find it extremely difficult to find any work.
In any event, the evidentiary onus of proving that the plaintiff has an ability to work, and that the relevant work is available for the plaintiff, relies upon the defendant. In Kallouf v Middis [2008] NSWCA 61, the Court (McColl JA and Hall J) said:
"[52] In Arthur Robinson [(Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649] (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.'
[53] The relative responsibility of the parties for adducing evidence going to the issue of residual earning capacity was discussed in Linsell v Robson [1976] 1 NSWLR 249 (at 254 - 255) by Glass JA who stated:
'I should like to recapitulate what I said in Davies v Lumsden ... concerning the evidentiary responsibility in cases of this kind of the real defendant, viz the insurer, and the risks it runs in pursuing its policy of testimonial inactivity. The plaintiff, of course, has the ultimate burden of proving the extent of his loss. The plaintiff tendered evidence of the disabilities which severely restricted his earning capacity, the failures which he encountered in his attempts to get work. The evidence of attempts was slight, but whether the proved record of failure is extensive or not, the plaintiff is trying to prove a negative. The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff's meagre materials will be held sufficient to support a conclusion, which in this case the trial judge clearly reached, viz that the plaintiff retained only a severely restricted earning capacity, the exercise of which was unlikely to produce a large income.'
[54] Reynolds JA (with whom Hope JA agreed) made observations to like effect in Yammine v Kalwy [1979] 2 NSWLR 151 (at 155) (approved by Heydon JA in [State of New South Wales v] Moss [[2000] NSWCA 133; (2000) NSWLR 536] (at [69])) that:
'[I]n seeking to quantify his damages [for lost earning capacity] a plaintiff could be well advised to offer such evidence [as to the level of wages he might earn, notwithstanding his handicap]; and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither in the absence of such evidence, could complain, to the same effect, at any quantification arrived at.'
[55] In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132 133) per Sugarman JA: see also McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353 (at [64 ff] per Ipp JA (Beazley and Basten JJA agreeing)).
[56] This position is not, in our view, displaced by s 126 [of MACA], albeit that s 126(1) imposes a requirement on the plaintiff to satisfy the Court 'that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury'. It is, of course, incumbent on the plaintiff in the first place to demonstrate lost earning capacity.
[57] In Moss (at [66] ff) Heydon JA (at [87]) summarised the authorities concerning the extent to which evidence is required to support a significant award to a plaintiff for lost earning capacity as demonstrating that 'where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the Court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.' His Honour went on to explain that because the tribunal of fact is making a discretionary judgment involving assessing the value of a chance, it is appropriate 'to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.' In arriving at the discretionary judgment, Heydon JA said, the 'trier of fact ... must achieve satisfaction that a fair award is being made', echoing Barwick CJ's statement in Arthur Robinson (at 656) that in considering whether a verdict is excessive, the Court must bear in mind that the amount awarded 'ought to be a fair and reasonable compensation for the injuries received.'
[58] Consistently with this view, in Wilson v Peisley (1975) 50 ALJR 207 (at 209) Barwick CJ held:
'The setting aside of an award of damages in a trial ... where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence, should ... be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable ... in the circumstances, whether by being too great or too small; and therefore of itself a demonstration of error present though otherwise undisclosed.'
[59] Yammine and Moss were referred to with apparent approval by Mason P (Spigelman CJ and Priestley AJ agreeing) in Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [48]). However, in an appeal confined to error of law, Mason P discerned no error in the primary judge concluding that where the plaintiff had moved to Queensland, a labour market of which he did not know, and as to which no evidence was called, the plaintiff had not demonstrated loss of earning capacity.
[60] In Kealley v Jones [1979] 1 NSWLR 723 (at 732 733) Moffitt P referred to judicial criticism, addressed to both plaintiffs and defendants who fail to lead at trial available evidence in relation to wages in aid of the quantification of compensation for diminution of earning capacity. In his Honour's view such criticisms were 'justifiably ... made ... because a court, left to do the best it can, may arrive at a sum not reviewable on appeal which may be less true and just than an award made in the light of the best evidence.' Having said that, however, his Honour added (at 733) that each case depended on its own facts including the range of permissible inference.
[61] In Brear, Mason P accepted however (at [49]) that a court must do its best 'with the available evidence in the necessarily impressionistic task of assessing damages for lost earning capacity' and that 'absence of evidence about wage rates or working conditions in a particular vocation does not necessarily or usually deprive a tribunal of fact of the capacity to make a proper assessment'. However his Honour added (at [50]) that it was not the law that 'a tribunal of fact must find a positive value in such an assessment exercise' citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361). Accordingly he concluded that no error of law emerged if the tribunal of fact was not persuaded 'of financial loss, in the absence of evidence about the availability of relevant remunerative work in the area where the plaintiff lives or is likely to live.'"
In the quotation from Linsell v Robson, Glass JA was clearly referring to that well known institution, the Government Insurance Office of New South Wales. However, "testimonial inactivity", the term used by Glass JA, is referable not only to that former institution, but many insurance institutions operating in this State. It is common place these days for defendants to tender "vocational assessment reports", but none was tendered in the current case. As has been submitted to me by Mr Turnbull SC, if a company such as Workforce International Pty Ltd, a supplier of labour, cannot find work for its own injured worker at a place such as Oldfield's Brushes, then what chance is there of the plaintiff himself managing to find such work?
[11]
Quantum
I believe now I have made sufficient findings to deal with most aspects of the plaintiff's claim for damages. Yesterday I prepared a summary of the calculation of damages, and I shall provide a copy to junior counsel for the plaintiff and the solicitor for the defendant appearing today so that they need not try to take down the actual calculations. I should indicate that my main reason for making this piece of paper is because of my mathematical inability, and I needed to have my Associate check to make sure that my mathematics were correct.
For the period prior to the termination of his services by Workforce International Pty Ltd, the plaintiff claims $18,087. That is, in fact, the amount of weekly payments paid by the plaintiff's employer's workers compensation insurer. It includes the amount under Fox v Wood. There is no dispute the plaintiff is entitled to that sum.
During the period from 6 July 2013 to date, on my calculations, 145 weeks have elapsed. The plaintiff claims during that period the sum of $1,250 per week. That sum mirrors the plaintiff's pre-injury net weekly earnings of $1,249.69 set out in exhibit P. The sum of $1,250 per week for 145 weeks is $181,250. I allow that sum. The total for past economic loss, including Fox v Wood is $199,337.
Past superannuation is 11% of that sum, $21,927, but I have reduced that to $20,000 because there is, in the amount included, allowed for past economic loss the Fox v Wood component. That was a concession very properly made by Mr Turnbull SC in addresses, recorded at p 126 at the transcript.
For the future, the plaintiff claims $1,400 per week for nine years until his 67th birthday. The $1,400 has been calculated by Mr Turnbull's allowing a 2.5% annual increase in the plaintiff's earnings since his services were terminated. That appears to be proper to me, and no demur was raised by Mr Fitzsimmons. The relevant multiplier is 380.1. In their calculations, counsel for the plaintiff relied on a multiplier of 412.9, but that is a multiplier for ten years. At the time of the hearing, the plaintiff was 57 years, about to turn 58, which has occurred whilst I have been reserved, owing to the press of other work.
I have discounted that not by the traditional 15%, but by 25%, again, based upon a concession made by Mr Turnbull SC in addresses recorded on p 121 of the transcript. There are a number of imponderables which need to be brought into mind. This is a requirement, in essence of s 126 of MACA. There is no evidence expert evidence before me as to the state of the plaintiff's wife's health. I do not know her prognosis. I do not know her life expectancy. I do not know whether she will recover her health, and return to doing all the things that she used to do around the house and permit her daughter to go back to working fulltime for Westpac. I do not know whether the plaintiff's wife's health is such that she could depart this mortal coil at any time, permitting the plaintiff's daughter to return to working fulltime for Westpac. However, in my view of the plaintiff's motivation to work is that such matters would not affect the end result; that is, the calculation of the plaintiff's future economic loss. One thing, however, which could well affect that is if the plaintiff's daughter decides to return to work fulltime or decides to give up caring for her mother. There is always a possibility of a falling out between mother and daughter, but of more significance in my view, there is a possibility of the plaintiff's daughter finding a partner with whom she wishes to share her life, of leaving home and thus throwing the burden of caring for the plaintiff's wife upon the plaintiff, which would take him out of the workforce, even uninjured. That is a distinct possibility which must be borne in mind.
The plaintiff's daughter is only 28 years old. She told me in her evidence that she did not have any boyfriend, but such things can change rapidly. Furthermore, most young people desire to find a partner with whom to share their life, and that is a distinct possibility in the current case, hence I have adopted the concession made by Mr Turnbull to allow for various vicissitudes which are apparent in this case, to increase the traditional discount. Furthermore, I also have to bear in mind the fact the plaintiff may, at some stage, have become incapacitated even for work as a traffic controller, for example, a sudden increase in his low back symptoms or a recurrence of cervical symptoms or recurrence of symptoms in his right shoulder, which recurrences, of course, would be completely unrelated to the motor vehicle accident now in question. Discounting the future economic loss by 25%, gives me a lump sum of $399,105.
For loss of future superannuation, I allow 14% of that sum, which is $55,875.
It is agreed that the plaintiff's past out of pocket expenses amounted to $34,621.73.
The plaintiff also claims future out of pocket expenses and makes a global claim in the schedule of damages, MFI 5, for $40,000. That is a figure plucked out of counsel's perfervid imagination. I do not accept in this case the plaintiff needs any further operative treatment to his left knee. In fact, the surgery that has been practiced appears to have hastened osteoarthritis within that knee. Further surgery is contraindicated in my view. Nor, in my view, does the plaintiff require any further investigations of his left knee. All that is required analgesia from time to time. Further physiotherapy is not required. The plaintiff has had heaps and heaps of physiotherapy, to use the vernacular, and the point of physiotherapy is not the palliation of pain, but rather the return of function. The plaintiff's knee, to maintain function, must be used, to prevent its locking or muscular wasting. There is no need, in my view, for future physiotherapy. I allow the sum of $5,000 to account for future visits to the general practitioner and the prescription of pain killing medication.
The plaintiff's claims in respect of past gratuitous care and future commercial care, in my view, both fail. As I said, I need make no allowance for Fox v Wood as it has already contained the allowance made for past economic loss. The plaintiff is not entitled to damages for non-economic loss as he has not established the threshold provided by Pt 5.3 of MACA.
The total of the sums which I have allowed is $713,938.73
I have inquired of the representatives of the parties whether any further reason for judgment is required. I am told that none is so required.
For those reasons I give verdict and judgment for the plaintiff against the defendants for $713,938.73.
I order the defendants to pay the plaintiff's costs.
[12]
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Decision last updated: 13 July 2016