Findings on mitigation
231The defendants submitted the plaintiff's damages should be reduced because the plaintiff has "wholly failed to comply with his obligations" to mitigate his damages: s 136(1) of the MAC Act. The defendants further submitted that the plaintiff was only entitled to minimal damages as a result of such alleged failure. The onus of proving the plaintiff has relevantly failed to mitigate his damages lies with the defendants: s 136(4) of the MAC Act.
232The defendant's submissions essentially centred on the propositions that the plaintiff has not sought to control or abate his dependence upon, and abuse of alcohol, with consequential deleterious effects on his motivation to achieve a better outcome from his injuries that are the subject of this claim. The defendants' submissions in that regard seem to proceed upon the premise that this was simply as a result of a failure of volition on the plaintiff's part.
233In my view, those submissions were overly simplistic and are unenlightened by a proper understanding of the cause of the plaintiff's alcohol dependence as a mental illness, which was explained by the evidence of Dr Parmegiani. The defendants' submission does not pay due regard to the nexus between that illness and the effects of the plaintiff's accident-related injuries, his related experience of ongoing pain, and the psychological effects these matters had upon the plaintiff, including his depression.
234In assessing whether the plaintiff has in this case discharged his duty to mitigate, consideration must be given to any mitigatory steps taken by the plaintiff, as well as the reasonable steps that could have been taken by the plaintiff to mitigate his damages: s 136(2) of the MAC Act. The matters for consideration of mitigation, as provided for in the legislation, namely undergoing medical treatment, undergoing rehabilitation treatment, pursuing alternative employment and early claim notification, are inclusive and not exhaustive: s 136(3) of the MAC Act.
235The timing of the notification of the plaintiff's claim is not an issue in this case. The question of alternative employment will be the subject of separate consideration in respect of the assessment of the claim for loss of income.
236A specific matter to be taken into account in determining whether there has been a relevant failure to mitigate is any evidence that an insurer had failed to assist in mitigating such damages: s 136(6) of the MAC Act. That consideration is relevant in this case as the insurer declined to pay for investigations and the treatment that had been recommended for him. These matters require examination in detail.
237The assessment of an alleged failure to mitigate requires the consideration of subjective factors influencing the plaintiff's state of knowledge, conduct and decisions concerning mitigation: Fazlic v Milingimbi Community Inc [1982] HCA, at [12]; (1982) 150 CLR 345. The reasonableness of the plaintiff's decisions in respect of any steps, if taken, might have mitigated damages, is to be judged on the basis of the information that he knew at the relevant time. He will not be taken to have acted reasonably to avoid loss if baseless factors were allowed to outweigh cogent ones: Arnott v Choy [2010] NSWCA 259, at [155], following Fazlic. In that regard, the presence of a mental illness in the plaintiff is also a relevant consideration.
238Decided cases on mitigation issues have placed the emphasis on the reasonable steps that a plaintiff could have taken to mitigate damages having due regard to the plaintiff's ability to work as a result of his injury, rather than focussing on the "additional steps" that a theoretical hindsight evaluation might suggest: Mahony v Watson [2003] NSWCA 259, at [52]-[53], following Brogan v Geary (1995) Aust Torts Reps 81-342, at 62,421.
239Whilst those two latter authorities dealt with construction of s 39 of the Motor Accidents Act 1988 (which placed the onus on the plaintiff to prove mitigation, unlike s 136 of the MAC Act which places the onus on the defendant) the terms of s 39(1) of the 1988 Act are for present purposes in sufficiently similar terms to s 136(1) of the 1999 Act: Arnott v Choy, at [159].
240Another factor that bears upon the issue of reasonableness in the context of mitigation, is what would have occurred had the contended hypothetical steps for mitigation been taken: Arnott v Choy, at [160].
241Where the evidence is so evenly balanced that it is impossible to decide whether a contended treatment will be ameliorative, or whether the plaintiff's refusal of treatment is unreasonable, it is the defendants who fail on the issue of mitigation, and the plaintiff's damages are to then be assessed on the basis of his actual condition, rather than upon what might have been his hypothetical condition if the contended treatment had been followed: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235, at pages 239G - 240A, per Glass JA.
242In that case, at page 240C-E, Glass JA made relevant remarks that provide guidance for the required task:
"If, for example, the defendant introduces evidence that the plaintiff, by positive exacerbation of his condition, had made it worse, it would appear on principle that the defendant would be exonerated from liability for the added ingredient unless the jury is satisfied by the plaintiff that the allegation should be rejected, or that his aggravating conduct was due to his pre-existing personality, or a by-product of his injuries, and that such intervention, however caused, was in a general way foreseeable. But, where the conduct charged against the plaintiff is, not that he made his condition worse, but that he refused to allow it to be improved, the question appears to display a greater affinity with the mitigation rather than the damages heading, especially if the reasonableness of his attitude is open to serious debate."
[Emphasis added]
243The matter to be taken up in this case, following on from the above statement from Munce, is the nature and context of the plaintiff's refusal to seek treatment, and a consideration of the underlying reasons for such refusal. In that regard, the presence of a mental illness is a relevant factor.
244The plaintiff's submission in response to the defendant's mitigation submissions was that what might seem reasonable to a non-addicted person, namely that the plaintiff should attempt to cure his alcohol dependence, was not possible when viewed from the plaintiff's subjective perspective, as an addicted person. The plaintiff further submitted that the state of the evidence did not provide the basis for a finding that the plaintiff, in his alcohol dependent state, and suffering the effects of prolonged heavy alcohol abuse, was in a position to make any conscious informed decision on the mitigation issue.
245In developing that submission on behalf of the plaintiff, it was further submitted that the defendants have failed to prove that the plaintiff had the means available to him, at any material time, to pay the significant sums of money involved in an in-patient care and alcohol detoxification programme at an estimated cost of $5000 per week for up to 6 weeks of abstinence, followed by the further costs associated with a 12 month out-patient programme, as was suggested by Dr Parmegiani, and related pain management treatment absent the availability of recourse to alcohol: Day 2, T35.31 to T36.20; T44.19.
246Significantly, in that regard, on behalf of the plaintiff it was submitted that the defendants have not offered to provide or to pay for such in-patient and supportive psychiatric treatment. Also of significance is the evidence of Dr Parmegiani that the outcomes of such programmes were not 100 per cent successful in treating chronic alcoholics. There was no discussion in the expert evidence that threw light on that matter relative to the plaintiff's particular diagnosis and circumstances, but there must be some real doubt about the success of the proposed treatment in this case, given the significant period of time that has elapsed since the plaintiff has relapsed into alcohol dependence.
247Given the plaintiff's underlying vulnerability to reinstatement or relapse into alcohol dependence, in my view the factual matters critical to an evaluation of the mitigation issue in this case are first, the plaintiff's experience of accident-related pain, which has become entrenched chronic pain, secondly, the psychological factors intrinsic to the plaintiff, including his pre-existing vulnerabilities and circumstances which have influenced his responses to the pain he has experienced, and thirdly, the plaintiff's reasons for not pursuing the contended mitigatory steps, including any conduct of the insurer that may have influenced the course of events.
248In essence, the evidence of the plaintiff was to the effect that since the subject accident, he has been in largely unameliorated constant pain. This included pain in his left hand and fingers: Day 4, T4.10 to T4.20.
249In early 2011, that pain was temporarily decreased but not abolished by the cervical fusion operation the plaintiff undertook on 25 January 2011: Day 4, T5.25 to T5.30; T20.32. This, together with the plaintiff's description of the mechanism of the injury to his left hand in the events of the accident, suggests that the left hand pain was due to a localised injury in that area rather than just being pain referred from the neck injury. This analysis is consistent with the opinion of Dr Conrad in that regard.
250In 2004, reasonably, the plaintiff sought out assessment and treatment for his left hand problems. He consulted with Dr Kerecz and received subsequent referrals to the hand surgeons, Dr Lyons and Dr Yee, each of whom identified a need for the plaintiff to undertake diagnostic MRI scans of the affected area in order to determine the appropriate form of management and treatment of that problem. At around the time the plaintiff was sent to see Dr Lyons for the investigation of treatment to his left hand, he "just started to lose control of what was happening to [him] and started the drinking ...": Day 1, T12.36.
251At that time, just as the plaintiff had felt he was establishing his business and starting his life again, he described feeling that everything started to collapse around him and "things started to keep going wrong". He went on to describe that for him, things "just got worse and worse and ... [he] ... got back into drinking": Day 1, T12.40. He learnt to depend upon drinking for pain relief: Day 1, T13.29. He said, and I accept, he tried to address this by seeing a motivational therapist, but this did not help him with the drinking problem: Day 1, T13.25 to T13.43.
252There is evidence in the form of letters from Dr Lyons and Dr Yee recording that in 2004, the CTP insurer declined to authorise funding for the recommended investigation of the anatomical nature of the plaintiff's left hand problems through MRI scanning: Exhibit "C", pages 7 and 11. As a result of the absence of funding, the plaintiff's left hand problems have until now remained uninvestigated, and have not been specifically treated, despite Dr Yee's generous offer to the insurer that after an MRI scan, he would carry out a follow-up review of the plaintiff's left hand at no cost.
253In response to the defendant's submissions on the mitigation issue, on behalf of the plaintiff, and with focus on the accident-related cervical fusion surgery undertaken by the plaintiff on 25 January 2011, and in respect of the particular position taken by the CTP insurer on the mitigation issue, Mr Lidden SC submitted as follows:
"LIDDEN: I see your Honour's point. My submission, I think, would be that ill lies in the mouth of an insurer to say you haven't mitigated your damages in circumstances where the insurer has refused to provide the means of mitigation. For example, he could have the neck surgery, it would appear, 18 months or so before it actually occurred but for the fact that the insurer refused to pay for it, so he had to have it done through the public health system. Not (sic) complaint can be made that he went through that procedure, as your Honour has remarked, but similarly no criticism ought be made of him that he had to endure more serious pain for longer than was necessary and thereby became more hopeless, more dejected and more unable to seize control of the situation and try and do something about removing alcohol."
[Emphasis added]
254The uncontradicted evidence of the plaintiff was that the CTP insurer had not only declined to pay for the recommended MRI scanning of the plaintiff's left hand, but had also declined to pay for his dental treatment: Day 4, T4.27. The plaintiff also gave uncontradicted evidence that he had been on a public hospital waiting list for some 16 to 18 months before the surgery was ultimately carried out on 25 January 2011, fusing his cervical spine at the level C6/7.
255There was no direct evidence to the effect that the CTP insurer had in fact declined to pay for the plaintiff's cervical fusion operation. The absence of such evidence may have been because the plaintiff's answer to a question asked in chief along those lines was interrupted with a further question from his counsel, with the result that this issue was left unexplored: Day 4, T4.29.
256A possible inference could arise from the evidence, to the effect that the plaintiff had to wait for his surgery to be carried out in a public hospital because it was unavailable to him privately, due to a lack of funding from the insurer, consistent with the earlier situation with regard to the insurer declining to pay for MRI investigation of the left hand problems in 2004. However, another possible inference that could also arise in the circumstances is that the plaintiff may have simply elected to stay within the treatment environment or network available to him at Concord Hospital where he had confidence in those offering him treatment and where he was being treated for a rheumatological issue that led to the recommendation for neck surgery, and where he was also being treated for his unrelated haematological needs.
257As both of these competing inferences are open, and where there is no evidence that favours one of these possible explanations over the other, it is impermissible to speculate in favour of the cited construction of the events, as argued on behalf of the plaintiff in respect of delay caused by the insurer with respect to the plaintiff having the cervical fusion performed in a timely manner: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
258Therefore, all that can be said of the delay involved in the plaintiff undertaking and receiving neck surgery is that he was on a public hospital waiting list for a considerable period of time. That of itself does not bespeak an unreasonable failure on his part to mitigate his damages. Nor does it show that the CTP insurer declined to pay for the procedure, as was submitted.
259However, the 2004 decision of the insurer not to fund the recommended investigation of the plaintiff's left hand problems, thereby thwarting the timely treatment of those problems, falls into an entirely different category of analysis on the mitigation issue.
260On that issue, the plaintiff's private medical attendants were recommending that he have MRI investigations in July 2004 in order to decide upon the appropriate treatment and management of the plaintiff's left hand problems. There is no dispute that such funding was not forthcoming from the insurer. The evidence does not explain why the insurer declined to provide the requested funding.
261Since then, the plaintiff's left hand disabilities, including his experience of pain, have persisted for the ensuing 9 years, with only some temporary reduction in symptoms after the neck surgery in January 2011, following which the plaintiff's left hand problems went back to the stage of the plaintiff needing stronger drugs for pain relief, and the plaintiff returning to drinking more alcohol: Day 4, T5.30. This was also in the context of the plaintiff having experienced unpleasant side effects from taking painkilling narcotic drugs or barbiturates which led to the use of less powerful drugs and a return to drinking alcohol for pain relief: Day 4, T5.13 to T5.31.
262The consequence of the CTP insurer's decision not to fund those recommended investigations in 2004 meant that the plaintiff's left hand remained incompletely assessed and therefore untreated by whatever means until Dr Shenstone arranged an MRI of the plaintiff's left hand in July 2009, which revealed some mild capsular thickening of the second and third metacarpo-phalangeal joints. The earlier non-availability of such assessment and treatment was undoubtedly a source of stress for the plaintiff, in addition to the stressor of his continued injury related pain. The state of the evidence does not permit a conclusion to the effect that investigation and treatment 5 years earlier would have reduced or abolished that pain.
263The plaintiff has been shown to be a person with personality characteristics that cause him to react badly to stressors: Day 1, T37.2 to T37.36. In 2006, this was aptly described by Dr Moore as a past history of resorting to the use of alcohol as a mal-adaptive means of coping with adverse stressors. In that context, I consider it to be highly likely and most probable that the plaintiff's continued experience of uninvestigated and untreated pain would inevitably have been a significant stressor for him, also causing him to resort to increasing levels of alcohol consumption.
264Alcohol is a legal substance widely available and used in society. There was no initial medical contraindication for the plaintiff to use alcohol as a means of pain relief. Dr Parmegiani explained that the action of alcohol taken in sufficient quantity as having the effect, amongst other things, of dulling pain: Day 2, T33.25 to T34.3, as follows:
"Q. And you've - what affect does alcohol - I think you received a history in 2009 that he was drinking 40 standard drinks a day. What sort of effect would that sort of consumption of alcohol have on Mr Licciardo in the longer term?
A. Well, alcohol's a sedative and muscle relaxant. Basically in high amounts it dulls the senses and it has got a mood lifting effect while the alcohol's on board and people feel calmer. I think that's probably - are more able to mix socially, to make conversation and are more willing to interact with others.
Q. What about in the presence of pain? What effect does the alcohol have?
A. Well, given enough alcohol, it dulls pain.
Q. Is that a common scenario in terms of people drinking to dull pain?
A. Yes, quite often and particularly to help sleep, people who can't sleep because of pains and aches find when they're completely and totally drunk they can sleep for many hours.
Q. They hadn't had that drinking?
A. Well, then they - every time they move around in their sleep, they wake up because of pain.
Q. Now, in terms of the alcohol abuse and the depression, you've mentioned that he, Mr Licciardo, remains emotionally labile, unmotivated and depressed. Are they consequences of his illness or alcohol consumption or both?
A. Probably both because alcohol provides a short term relief of symptoms including a depressed mood, but in the longer term, it actually makes depression worse."
265The above description from the evidence of Dr Parmegiani reflected the plaintiff's description of him waking in pain and of him then turning to alcohol for pain relief.
266Dr Parmegiani also explained his view of how the plaintiff had ultimately descended into alcohol abuse as a result of the reinstatement of his previous alcohol dependency: Day 2, T43.25. Dr McClure's view was to a similar effect.
267In that sense, the defendants must accept the plaintiff as they find him, with his pre-existing conditions, vulnerabilities and pre-dispositions that may become aggravated or exacerbated through injuries of the kind under present consideration: Mt Isa Mines Ltd v Pusey.
268Once the foregoing principle is recognised, in the context of this case, it follows that the identified accident-related process of relapse or aggravation of the plaintiff's previously controlled pre-accident alcohol dependence into a reinstated alcohol abuse, must be seen as being a foreseeable natural and probable consequence of the admitted negligence of the defendants, unless shown by evidence to be otherwise: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
269Viewed against that background, in the circumstances of the pain effects of the subject accident, the plaintiff's resort to alcohol for pain relief was entirely understandable and foreseeable. The plaintiff gave a cogent reason for preferring alcohol over strong painkilling medications, which had unpleasant side effects for him: Arnott v Choy, at [155].
270For the reasons that follow, in this case I find that the accident-related aggravation of the plaintiff's underlying vulnerability to alcohol abuse was a material one, the effects of which have continued unabated, as mediated by the plaintiff's ongoing experience of chronic pain, and the emotional effects of the accident upon him, notably, his accident and pain-related depression.
271It is highly significant that at the time of the accident, the plaintiff was in the process of taking effective measures to re-establish himself after slowly emerging from what was for him the shattering trauma of his 1993 divorce, where he had found himself in straightened financial and social circumstances, and which had caused him to descend into psychological despair and alcohol abuse for several years.
272In that regard, in the period described in the evidence as being between about 2000 and 2003, the plaintiff had reached a point where he was effectively, purposefully limiting and controlling his use of alcohol. He had almost completed a government-sponsored course of economic rehabilitation for work that was within his physical capacity as dictated by his pre-existing lower back problems. He had also taken reasonable and active steps to set up a business in which he had a history of working successfully, and was in the process of equipping himself with the basic clerical skills required to run a small business undertaking of that kind, having already taken practical steps of purchasing the necessary equipment for that undertaking. In addition, he had established a positive personal relationship with a companion with whom he saw a future.
273In my assessment, this combination of circumstances indicates that before the subject accident, the plaintiff's personal and economic fortunes were on the rise, but then, to use his words, the effects of the accident had "crushing" and devastating physical and emotional consequences for him.
274In his evidence given in 2009, the plaintiff said he did not see the point of seeking out appointments for treatment: Day 1, T14.25. In my view, that evidence has to be read in the light of his history at that time of heavy use of alcohol and the consequential impairment of his judgment, where he was drinking five or six bottles of scotch per week, which he eventually changed to drinking a four litre cask of red wine per day. That pattern of drinking made him feel numb, and enabled him not to think of anything: Day1, T15.1 to T15.23. In those events, he also lost his driver's licence due to the first of two drink driving offences, a matter that has shocked him, and which has influenced him from re-applying for a licence because of his concern for the possible untoward effects his driving may have on others.
275In 2009, the plaintiff's emotional mindset concerning his post-accident circumstances was "There is no point to do anything. Every time I've tried to do something, everything's always gone wrong": Day 1, T16.26 to T16.29. Whilst that was not an entirely logical thought process, that thought process represented the plaintiff's poor emotional state, as influenced by his pain and by his related heavy consumption of alcohol and was understandable.
276Clearly, the plaintiff was in the grips of emotional difficulties following the accident. It was those difficulties that had led to the reinstatement or relapse of the plaintiff into heavy use of alcohol. That course was perpetuated by his sense of loss due to what he saw as a reversal of the positive direction he thought his life and fortunes had been taking up to the point when the accident intervened.
277In those circumstances, I find that the plaintiff's ability to act in his best interests had become seriously clouded by the effects of those injuries in the form of the distracting effects of his ongoing pains, and the related numbing effects of alcohol on his mental processes. Added to this was the effect that pain-related exhaustion had on his ability to concentrate, which influenced his pessimistic attitude of not wanting to have his hopes or expectations raised to be dashed, through possible psychological or psychiatric treatment: Day 1, T16.44 to T18.9. In 2009, the plaintiff's response to his physical pains was that he was "too drunk to bother about it": Day 1, T20.38. In my view that evidence amply demonstrates that the plaintiff's thought processes on those matters were not normal and were affected by his mental illness.
278In 2009, when questioned about the possibility of seeking out future treatment, he expressed interest in doing something along those lines. However, that evidence was qualified by an expressed air of pessimistic scepticism concerning any attempts to achieve an improvement in his condition because, based upon his past experiences of adversity, he believed something was going to go wrong: Day 1, T23.10 to T23.18. Although many might see that thought process as being baseless or irrational, from the plaintiff's more subjective perspective, it was a reasoning process he genuinely believed to be appropriate, based on his own perceptions and experiences concerning what he saw as previous setbacks in his life that had adversely affected him.
279In 2011, after the cervical fusion the plaintiff temporarily drank alcohol to a lesser extent than before, reducing his alcohol consumption to 2 litres of red wine per day (Day 4, T6.20) but he then went back to drinking 4 litres per day: Day 4, T6.36.
280The plaintiff said he had subsequently planned to go into an alcohol treatment programme with his general practitioner, Dr Kerecz, his longstanding general practitioner in whom he had faith: Day 4, T5.40. However, the foreshadowed assistance of Dr Kerecz became unavailable to him due to that doctor's illness. On Day 4, at T6.28 to T7.42, the plaintiff gave the following evidence on those matters:
"Q. So that is 2 litres a day.
A. Yes, 2 litres a day instead of 4 litres a day, but that lasted - I just don't remember the times because it just kept going and going and then I'm back to drinking a cask a day.
Q. That is a 4-litre cask?
A. Four-litre cask, yes.
Q. When did you start this?
A. I never stop.
Q. So when you get up what happens?
A. Yes, this is where I noticed probably I was less drinking because I'd be drinking - I would go to sleep, I would probably get an hour or two of sleep a night and then I'd wake up again and I would purposefully drink to get myself asleep again, but that only went for another hour or two so then I'd wake up and I'd just keep drinking continually. So at the best I was getting probably two to three, maybe four hours sleep a night. Since the operation, I've noticed I can get up to four hours straight before pain wakes me up, and I'll start again.
HIS HONOUR: Are you going to explore the program?
...
LIDDEN
Q. ... What did that program involve, please?
A. I never actually got it started. What his plan was that if I could go one to two days, three at best without drinking, he then described I was going to use a drug called Campral to keep - as I understand it, Campral has the effect of making alcohol taste totally distasteful and to see how much further I could keep on going. It was a personal program through his own surgery.
Q. When he was forced to give up practice, was anything done by his successor in respect of that program?
A. No, as far as I know no one has taken over his business, it's just closed.
Q. So have you had to obtain a new GP?
A. Yes. It's not as easy as it sounds. When you've been 30 years with one doctor, you have to find a doctor, I support, who has the same temperament or same management skills.
HIS HONOUR
Q. So who is your doctor now?
A. I've since found out that he [Dr Kerecz] actually attends a doctor called Dr John Wong. I'm assuming that's a fairly good indication. So he's not due back to his surgery until 3 August, so I'll be taking all my medical records to him.
Q. When did Dr Kercz [sic] become unable to see you?
A. It would have been probably August, October last year."
281In 2011, after having the surgery to his neck, the plaintiff had experienced some temporary improvement in his neck pain and the stabbing pains in his left shoulder and left hand. However, that decreased level of pain in his left shoulder and left hand reverted to the pre-improvement state. This has influenced the plaintiff's subsequent resumption of heavier consumption of alcohol: Day 4, T5.31.
282In order for the plaintiff to have his neck operation, he had stopped drinking on the morning before the operation: Day 4, T16.40; T18.13. Whilst the plaintiff agreed with the cross-examiner that he could give up alcohol if he wanted to (Day 4, T17.19) such as when he had the operation on his neck, he was only able to maintain a reduction in his previous level of excessive consumption of alcohol because of the heavy painkilling medications he was taking post-operatively: Day 4, T19.20 to T19.40. His agreement with the cross-examiner's question in that regard has to be read in that light. In my view, for that reason, this evidence does not assist the defendant's mitigation argument.
283Whilst the plaintiff agreed that it was a possibility that he could have continued "not drinking excessive amounts of alcohol" after he had left hospital, he said he saw no reason to do so. In that regard, as I read his evidence given on Day 4, at T20.1 to T20.45, the plaintiff got into the habit of using alcohol as an automatic instinct. This was consistent with the process of reinstatement of alcohol dependence as was described by Dr Parmegiani, namely, an illness of addiction that interfered with his volition.
284Although the plaintiff said he wanted to try giving up the alcohol voluntarily, he considered that this was not going to happen because alcohol did not give him the bad side effects he had experienced when taking strong painkilling drugs. In giving that evidence the plaintiff seemed to feel the unfortunate coincidental illness of his general practitioner represented another obstacle in his path to giving up alcohol: Day 4, T20.44. He felt his doctor's illness was yet another event that had "hammered" him, despite his intentions to seek treatment for his condition: Day 4, T22.10.
285The impression I gained from the plaintiff's evidence on these matters was that he seemed lost and depressed, with a resigned air of hopelessness about him in his narrowed world of pain experience, drinking for pain relief, in social isolation.
286At the resumed hearing in 2013, the plaintiff was questioned about his reasons for his heavy alcohol consumption. He described his consumption of 4 litres a day in order to put himself back to sleep when he woke up: Day 4, T6.40; T23.30.
287In the result, the plaintiff continues to drink alcohol throughout the day: Day 4, T21.46. The plaintiff was cross-examined at length about his continued alcohol consumption. He had apparently ceased taking alcohol in order that he give his evidence on the last day of the hearing, and instead, for that time, relied on painkillers alone: Day 4, T20.29.
288The cross-examination of the plaintiff concluded with him indicating that he could "not really" see reasons for him to "get off alcohol": Day 4, T24.40. In my view, that answer, and the answers to the same effect relied upon by the defendants (Day 1, T40.34; T40.46; T41.49 and T42.45) must be viewed in the light of Dr Parmegiani's earlier cited and uncontradicted evidence, which I accept, concerning the plaintiff's depression, and the impairment in the plaintiff's ability to exercise better judgment due to a degree of brain damage caused by continued alcohol consumption: Day 2, T40.15.
289In those circumstances, I consider that Dr Parmegiani's description of the process of the reinstatement of the plaintiff's earlier abuse of alcohol should not in this case be simply characterised as a personal choice made by the plaintiff and capable of voluntary mitigation, as was argued on behalf of the defendant.
290This is because, as was described by Dr Parmegiani, the plaintiff's personality make-up and the effect upon him of adverse life experiences had brought out in him a genetic vulnerability or propensity to abuse alcohol as a means of coping with stressors.
291In my view, having regard to the uncontradicted evidence of Dr Parmegiani on that subject, which I accept, the plaintiff's reinstatement of alcohol abuse should be characterised as an illness, and not as a simplistic argued failure of volition on the part of the plaintiff to abandon his use and abuse of alcohol.
292Accordingly, in my assessment, the defendants have not shown on the evidence that the plaintiff has at any time since the accident, had the capacity, unaffected by mental illness, to make a rational judgment on the issue of his continued heavy consumption of alcohol.
293The evidence of Dr Parmegiani indicates the complexities and difficulties in arranging for and securing successful alcohol detoxification of the plaintiff in the presence of chronic pain issues. In contrast, Professor Mattick adopted a more simplistic approach of stating that drug therapy such as Naltrexone could be used to successfully treat alcohol dependence: Exhibit "7", paragraph 13.25.9.
294I consider that those views of Professor Mattick must be read in conjunction with and subject to the expert medical evidence of Dr Parmegiani, which reveals the problem of the plaintiff's alcohol dependence to be far more complex in the presence of a need for concurrent drug treatment for pain, with potentially lethal consequences if the suggested drug Naltrexone was used in such circumstances as suggested by Professor Mattick: Day 2, T41.17.
295In that regard, I prefer and accept the medically informed and reasoned opinion and explanation of Dr Parmegiani on this topic to the non-medical and incomplete opinions of Professor Mattick.
296Furthermore, the question of whether it is in the plaintiff's capacity to voluntarily cease using alcohol as a source of pain relief, which was the position adopted by the defendants, has to be assessed in light of the medical opinion of Dr Parmegiani to the effect that there is a question over the presently unknown and unassessed degree of the plaintiff's alcohol-related brain damage that may be preventing him from recognising or understanding the significance to his health of his continued hazardous consumption of alcohol.
297On Day 2, at T39.34 to T40.16, Dr Parmegiani provided some insightful and compelling evidence into that complicating reason as to why the plaintiff might find it difficult to give up alcohol, as appears in the following extract of his evidence:
"Q. Well, he's been challenged and asked why doesn't he give up alcohol.
A. Yes.
Q. And try and get himself back on track and to become more positive and take advantage of life's positive opportunities and his almost automatic response has been, I don't see the point because I'm going to be knocked down again. My question is, is that process of consideration and answer likely to be a protective mechanism or is it open to a number of other possibilities?
A. Well, again, the easy answer for me is that I don't know. There is - are many clear and positive reasons why he should stop drinking, some which I've gone through a little earlier.
So he knows the reasons why he should drinking, but, you know, I take the option that people do have some control over their lives every though there may be issues of physiological addiction and so on. I think people ultimately do make decisions that influence their lives and having said that, and having gone, as part of my training, to AA meetings, you do find people at the front
who speak, who've been through what Mr Licciardo has gone through and say that one day they decided to stop and they were able to do it. Now, the message there is that some people, sooner or later, decide to stop regardless of the amount of drinking and they do so.
TORRINGTON
Q. If I were to use the expression that - and it's trying to encapsulate what his Honour put to you, but even if there was resistance in some way to logic put to Mr Licciardo why he should stop, that resistance, and I'm using the word loosely, is that something that treating specialists could also focus upon and help with?
A. Look, there's only one complicating factor there. The short answer is yes. The only problem is with the amount of drinking, I just question whether Mr Licciardo has had brain damage to the point where he can't exercise his better judgment."
298Ultimately, the mitigation question is dependent upon an assessment of the reasonableness of whether the perpetuation of the plaintiff's alcohol dependence is to be seen as a by-product of his injuries as those injuries impacted upon the plaintiff's pre-existing personality: Munce v Vinidex Tubemakers Pty Ltd, at page 240C-E.
299The defendants pointed to the hospital alcohol withdrawal records that surrounded the plaintiff's cervical fusion in January 2011 to suggest the plaintiff had the capacity to desist from using alcohol: Exhibit "5".
300In my view the defendant's argument based upon those records is overly simplistic and unpersuasive because of the absence of evidence of the surrounding circumstances and the availability of the required long-term support, if any, along the lines suggested by Dr Parmegiani for the plaintiff's alcohol withdrawal for the purposes of the operation, and his subsequent resumption of the use of alcohol.
301The defendant's submission in relation to the plaintiff's post-operative resumption of alcohol after the "dry out" during his hospitalisation was characterised as an opportunity to stay off alcohol but "it was just thrown to the wind": Day 4, T48.24.
302Those matters were not sufficiently explored in the evidence so as to support a finding that the plaintiff had the capacity to voluntarily refrain from alcohol use for a relevantly sustained period. Dr Parmegiani's report described the long-term treatment required to achieve such a result, and his oral evidence identified uncertainties with regard the outcome of such treatment. Accepting that evidence, I therefore find the "thrown to the wind" submission of the defendants to be unpersuasive on the issue of mitigation.
303In assessing the evidence given by the plaintiff in 2009 and 2013, explaining that he saw no point in giving up his heavy use of alcohol, I consider that he was truly convinced of the logic or cogency of his reasons for not pursuing treatment for his alcohol dependence. The context was his unremitting accident-related pain.
304Once it is accepted that the objective cogency of the plaintiff's reasons have to be assessed in light of his depression, a mental illness, and in light of the conditions adverted to by Dr Parmegiani in his evidence, in my view, the defendant's submissions arguing for a finding of a failure on the part of the plaintiff to mitigate his damages, loses any compelling force for acceptance: Fazlic v Milingimbi Community Inc, at [12]; Arnott v Choy, at [155].
305The plaintiff in fact sought early treatment for his physical injuries and related pain. A significant component of that treatment, namely to the left hand, was thwarted by the actions of the CTP insurer declining to fund the recommended investigations. There is no evidence that the plaintiff failed to pursue or participate in rehabilitation that had been made available to him. Instead, the plaintiff's unremitting pain has led him into recrudescent alcohol dependence, an addiction that is described in the evidence as being very difficult to successfully treat. The delayed surgical treatment he received to his neck has not served to significantly ameliorate the plaintiff's experience of pain, and he remains addicted to consuming considerable quantities of alcohol for pain relief, as a result of the accident.
306The foregoing consideration leads me to conclude that the plaintiff has not relevantly failed to mitigate his damages as was submitted on behalf of the defendant, and there should be no discounting of his entitlement to damages resulting from the injuries he sustained on 9 June 2003 on that account.
307I now turn to the assessment of those damages.