Licciardo v Hudson & Anor

Introduction 1The plaintiff Shane Licciardo claims damages from the defendants, Tamara and Stephen Hudson, for personal injury due to negligence relating to a motor vehicle accident that occurred on 9 June 2003. The defendants admitted liability on the pleadings. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"]. 2At the second reading stage in the enactment process of that legislation, in the NSW Legislative Assembly, several important aspects of the legislative intention were identified as follows: " ... This legislation is designed to benefit ... motorists and injured people by, first, reducing green slip premiums for motorists, second, by improving processes by which injured people obtain their compensation, and, third, by insuring that people receive treatment for their injuries sooner and in a more timely manner." [Hansard, New South Wales, Parliamentary Debates, Legislative Council, 3 June 1999, 901 (JJ Della Bosca, Special Minister of State, and Assistant Treasurer] [Emphasis added] 3It is apparent from the evidence and from the administrative and procedural timeline of the history of these proceedings, where the hearing commenced in 2009, and then remained in abeyance for nearly 4 years before concluding in 2013, that the second and third of those cited objectives were not well met in this case. 4After briefly defining the underlying events, it is relevant to set out something of the procedural course taken by the proceedings as this relates to the issue of whether the plaintiff has unreasonably failed to mitigate his loss, as was submitted on behalf of the defendants, in the context where, from 2004, the defendants' CTP insurer declined to pay for treatment investigations that had been recommended by the plaintiff's treating specialists.

Accident leading to plaintiff's claim 5In the early evening of Monday 9 June 2003, the plaintiff was driving his vehicle at an unstated speed along Waminda Avenue, Campbelltown, NSW. At that time, a vehicle owned by the first defendant and driven by the second defendant, approached the plaintiff's vehicle from the opposite direction at a speed of between approximately 50 to 60kph when the defendants' vehicle turned to the right and crossed over onto the incorrect side of the roadway, across the plaintiff's path, and into collision with the front of the plaintiff's vehicle. The impact was heavy and the airbags were deployed in the plaintiff's vehicle. Both vehicles were severely damaged and written off. 6These events caused the plaintiff to suffer bodily injury. The claimed injuries were to the face and teeth, the neck, upper back, left hand, arm and shoulder, and to the lower back. These injuries caused the plaintiff to suffer physical and psychological disabilities. The defendants admitted liability on the pleadings. Therefore, the issues calling for decision in the proceedings concerned the nature and extent of the plaintiff's injuries, and matters associated with the assessment of the plaintiff's entitlement to damages.

Issues 7Apart from factual matters, and matters concerning the credibility and reliability of testimony, the principal issues that emerged for determination concerned the evaluation of the evidence concerning the proof and assessment of the plaintiff's entitlement to damages. 8In their respective ambit claims, the parties were at odds as to the plaintiff's entitlement to damages. The defendants contended the plaintiff's damages should be of the order of $80,000. In contrast, on behalf of the plaintiff it was submitted that the award of damages should be of the order of $2.5M. Those positions were based upon disparate and contested assumptions. 9At issue was whether the defendants had discharged the burden of proving the assertion that the plaintiff had unreasonably failed to mitigate his damages by undertaking appropriate and timely treatment, including for the amelioration of his level of alcohol intake. This was ultimately put as failure on the part of the plaintiff to desist from his significant alcohol consumption: s 136(2) of the MAC Act. The defendants submitted that the plaintiff had "wholly failed to comply with his obligations" arising under that section. 10In submissions made on behalf of the plaintiff, the complaint was made that the alleged failure to mitigate had not been pleaded or particularised. Having regard to the way in which the case proceeded, no significant prejudice was occasioned to the plaintiff as a result of the absence of such particulars. 11Sometime after the accident the plaintiff, had begun consuming significant and increasing quantities of alcohol, which he claimed had afforded him pain relief. This was against the background of his vulnerable personality and his prior history of resort to the use of alcohol as a means of coping at times of personal setback. 12The effect of the accident on the plaintiff's alcohol intake therefore requires an evaluation of the plaintiff's pre-accident health and circumstances, and an evaluation of his history of responding to personal adversities by turning to the use of alcohol, as had occurred before the accident. 13In view of the identified mitigation issue, it is relevant and necessary to say something about the procedural history of the matter as this had a significant impact on the progress of the matter, and upon the plaintiff's circumstances, including his history of alcohol use, and upon his ability to effectively seek mitigation of his loss.

Procedural history and course of the hearing 14Following a partial hearing over 3 days, which ended in an adjournment of the proceedings in 2009, the proceedings remained in abeyance whilst MAC Act procedural processes took their course. This was for a remarkably unusual hiatus of nearly 4 years before resumption and completion of the hearing in 2013. That hiatus must be viewed in the context of the plaintiff's circumstances and the procedural history of the matter, as influenced by the requirements of the MAC Act. 15The plaintiff's statement of claim was filed on 5 June 2007. After some initial delay, on 23 July 2009, whilst the proceedings were still in the case management phase, the parties consented to the matter being placed in the court's inactive list pending a Claims Assessment and Resolution Service ["CARS"] assessment. 16As a result of the required MAC Act processes, it was initially determined that the plaintiff was not entitled to pursue a claim for damages for non-economic loss as his whole person impairment under MAC Act guidelines was assessed to be less than the 10 per cent required for such a claim to be available to him. 17On 6 January 2009, 19 months after the plaintiff's statement of claim was filed, the defendants filed a defence admitting liability. The details involved in the respective delays incurred in filing the statement of claim and the defence, and the subsequent delay in seeking the initial hearing date, were not directly canvassed in the evidence. 18The initial phase of the hearing, which was estimated to occupy two days, took place on 4 and 5 August, and 30 October 2009. At that time, the plaintiff was not procedurally entitled to make a claim for damages for non-economic loss. This was because, beforehand, on the available evidence, he had been unable to secure a Medical Assessment Service [" MAS"] finding of greater than 10 per cent whole person impairment under the MAC Act guidelines: s 131 of the MAC Act. 19The evidence adduced at that initial phase of the hearing raised an arguable basis for a claim for damages for non-economic loss. Consequently, the plaintiff applied for and obtained an adjournment of the proceedings in order to pursue the MAC Act procedures that provided a mechanism for seeking the right to claim such damages even at that late stage: s 60(1) and s 62(1)(b) of the MAC Act. 20After considering those matters and making related interim findings, on 6 November 2009, pursuant to those provisions, I acceded to the plaintiff's application and referred the matter for a further MAS assessment under the applicable statutory scheme. At that time I recorded my interim findings: Licciardo v Hudson [2009] NSWDC 289, at [5]. Those findings were: (a)the plaintiff had a pre-injury vulnerability to develop chronic alcoholism; (b)the injuries the plaintiff received in the collision on 9 June 2003 caused him to consume alcohol to excess in an endeavour to achieve relief from the pain caused by his injuries; (c)these events have caused the plaintiff to further consume alcohol chronically and to excess, such that he has more probably than not acquired permanent brain damage due to alcohol abuse. 21Those interim findings will be revisited in the course of outlining my findings of fact concerning the plaintiff's injuries and disabilities. 22A little over one year later, on 9 December 2010, whilst the matter was proceeding along the administrative pathway of the MAS process, the defendants unsuccessfully sought leave to challenge the interim findings: Hudson v Licciardo [2010] NSWCA 346. 23The considerable time taken for the resolution of that challenge was not explored in detail in the evidence adduced at the resumed hearing. However, it is clear that challenge, and the subsequent MAC Act procedures that were undertaken, inevitably caused further MAS assessments to be delayed. 24In the course of those events, the plaintiff attended a number of further medical assessments. As a consequence, some operable pathology was identified to be present in his cervical spine. On 25 January 2011, he underwent surgery for what has turned out to be an undisputed accident-related need for a cervical discectomy, nerve root decompression and an anterior cervical fusion, which involved a screwed cage insertion procedure in his cervical spine at the level C6/7. 25As a consequence of those events, the plaintiff also obtained a further MAS certificate which entitled him to claim damages for non-economic loss in these proceedings. In the course of those events, the plaintiff was issued with a combined whole person impairment certificate of 27 per cent according to MAS guidelines. 26Over the ensuing 3 years and 3 months between the date of the interim findings recorded on 6 November 2009, and a directions hearing that took place in the proceedings on 22 February 2013 (at which time the resumed and final hearing date was fixed to commence on 31 July 2013) there were no less than 13 supervisory directions hearings of the matter, at which times concerns were expressed by the court at the burgeoning delay in concluding the proceedings. Those directions hearings were appointed for the purpose of ascertaining why the proceedings were not ready to be allocated a resumed hearing date. 27On each of those occasions, the court was informed that there were delays occasioned by the procedural intricacies of the MAS and CARS processes, and the related pursuit of review procedures within those processes. 28Eventually, some 3 years and 9 months after the proceedings had been adjourned in 2009, the fourth and final day of the hearing took place on 31 July 2013. On that occasion, further oral and documentary evidence was received, and the parties made their final submissions, following which, judgment was then reserved.

MAS Assessments 29The plaintiff's injuries have been the subject of a number of MAS assessments undertaken both before and after the first phase of the hearing. It appears that not all of the available MAS assessments were tendered in evidence. Nothing would appear to follow from the absence of those other MAS assessments. 30A summary of the essence of the available assessments that were tendered appears in the paragraphs that follow. The significance of those assessments must be considered in light of the fact that the impairment guides employed for those assessments are statistical instruments that are not intended to be direct measures of disability. Those assessments must also be considered in the light of the decision in Pham v Shui [2006] NSWCA 373. 31On 18 July 2006, Assessor Nichols, a dentist, was satisfied that the plaintiff's dental injuries could have been caused by the subject accident. He listed the plaintiff's teeth numbered 16, 26, 31 and 41 as being chipped or fractured. He stated that those teeth had a guarded prognosis without treatment: Exhibit "1". The plaintiff has not yet had that dental treatment in the intervening 7 years, due to his impecuniosity and because the CTP insurer has declined to pay for that treatment. 32On 31 August 2006, Assessor Moore, a psychiatrist, assessed the plaintiff's psychiatric condition, which was specified as anxiety, depression, and alcoholism. Assessor Moore noted that alcohol abuse or dependency is often associated with mood disturbance. She concluded that post-accident, the plaintiff had experienced a recurrence of an alcohol dependence as a mal-adaptive means of coping with various stressors including relationship and financial difficulties, rather than being directly accident-related: Exhibit "1". The appropriateness of those conclusions must be evaluated against the evidence as a whole. 33On 14 June 2010, Assessor Fitzsimons, a neurologist, stated at page 17 of her report, that the large amounts of alcohol described as having been taken by the plaintiff would be likely to cause damage to brain cells, although quantification of that damage remains uncertain: Exhibit "9". She concluded there was a diagnosis [of] alcoholism with consequent vulnerability to organ damage, including brain damage: Exhibit "9", page 20. Dr Fitzsimons drew attention to practical difficulties in assessing the degree of such damage, and according to the MAC Act guidelines for medical assessment, at that time she assessed the plaintiff's whole person impairment on that issue as being 0 per cent. 34On 22 June 2010, Assessor Kirkby noted that the plaintiff had probable brain damage caused by alcohol, fractured teeth, chronic pain syndrome in the cervical, thoracic and lumbar spines and probable post-traumatic degenerative arthritis of the second metacarpo-phalangeal joint: Exhibit "8". 35On 30 November 2010, consistent with Dr Moore's earlier stated view, Assessor McClure, a psychiatrist, concluded that the plaintiff's pre-existing alcohol dependence was exacerbated by the motor vehicle accident: Exhibit "10", page 15. Assessor McClure determined that of the assessed whole person impairment of 7 per cent due to alcohol dependence, 1 per cent was pre-existing, and 6 per cent was due to the motor vehicle accident: Exhibit "10", page 19. 36On 21 February 2012, Assessor Kirkby certified that the plaintiff had a combined assessment of 27 per cent whole person impairment under the MAC Act guidelines: Part of Exhibit "L", page 64. That certification was based upon the MAS assessments of Assessor Nichols (18 July 2010), Assessor Fitzsimons (2 June 2010) and Assessor Bye, an orthopaedic surgeon (25 January 2012). That certification was in the following terms that I have edited to delete duplications: · Teeth - fractured · Soft tissue injury to the cervical spine · Aggravatated (sic) soft tissue injury of the lumbsacral (sic) spine · Soft tissue injury of the right shoulder · Soft tissue injury of the left shoulder and arm · Post-traumatic contusion of left wrist and hand · Post-traumatic contusion of left 2nd MCP joint · Post-traumatic contusion of left anterior chest wall and sternocostal joint · Traumatic contusion of the right knee · Scarring of the left thigh · Brain damage - caused by alcohol 37The significance of the latter certificate is that when it was issued the plaintiff had fulfilled the requirements of the threshold provided by s 131 of the MAC Act and became entitled to claim an award of damages for non-economic loss as he had satisfied the gateway provisions for such an award under the MAC Act scheme. Beyond that, the content of the MAS reports must be analysed in the same way as any other medical opinions to be assessed for the purposes of deciding whether or not they should be relied upon as a proper basis for making findings in the proceedings: Pham v Shui, at [90] and [98].

Array of evidence 38At the first stage of the hearing in 2009, evidence was given by the plaintiff, by his daughter Ms Holly Shandler-Carter, by his son Mr Nathan Licciardo, by Mr Vatu Butow who is a longstanding friend of the plaintiff, by Mr Steve Wilson, a water-carting contractor who gave evidence on the economic loss issue concerning the working environment in that industry, and by Dr Julian Parmegiani, a consultant psychiatrist. 39The parties also tendered bundles of medical reports and other documentary evidence. Dr Parmegiani was the only medical expert who gave oral evidence. 40Significant amongst the documentary evidence tendered was Exhibit "F", which consisted of a statement dated 15 May 2007 from Mr Israel Faletau, a friend of the plaintiff. That statement was served pursuant to s 63 of the Evidence Act 1995, and was not the subject of cross-examination. The statement by Mr Faletau, who had known the plaintiff for over 20 years, was corroborative of the plaintiff's case on damages. Mr Faletau was located in Tonga at the time of the first phase of the hearing. No steps were taken for him to give oral evidence at either hearing, or to be cross-examined, whether in person, or by video-link, or by telephone. 41At the second stage of the hearing, in 2013, further evidence was called from both the plaintiff and from Mr Wilson. Some further medical reports and documents were also tendered. On that occasion, no further oral evidence was called from any medical or allied health practitioner.

Credibility and reliability of testimony 42Some of the experts who provided reports assessed the plaintiff as being fixed in the past, having a tendency to rue his circumstances and to blame others for misfortunes occurring in his life. Some examiners commented upon what they called the abnormal illness behaviour of the plaintiff relating to the effects of the subject accident. Those comments required evaluation in the context of the assessment of the genuineness of the plaintiff's complaints of pain, and the extent of the adverse emotional sequelae of the accident upon the plaintiff's life and circumstances. 43It was plain from the psychological perspective, that the plaintiff was to a significant degree adversely affected by past circumstances in his life, notably the breakdown of his marriage in 1993, and the subject accident in 2003. It was also plain from the evidence that both before and after the subject accident, and to differing extents, the plaintiff had resorted to taking significant quantities of alcohol. The plaintiff said of this that the taking of alcohol enabled him to cope with his pain. Those are matters that require evaluation and findings. 44At the first stage of the hearing, some of the plaintiff's answers to questions were rambling in nature. At the second stage of the hearing his answers were more lucid, but at times he still demonstrated a state of upset, frustration and hopeless resignation about his circumstances. Some of the medical examiners had identified the plaintiff's expressions of anger and resignation concerning his situation. He was affected by consumption of alcohol at some of those examinations. In the context of a psychological illness involving alcohol dependence and the ability to make decisions on such matters, that does not necessarily raise a credit issue, as is plain from the evidence of Dr Parmegiani. These are also matters that require a more detailed exposition in the findings on the residual effects of the accident on the plaintiff, and also on the mitigation issue. 45At this point, and for reasons identified in the course of my evaluation of the evidence, it is sufficient to record my assessment that the plaintiff was an honest and truthful witness who did his best to recount his evidence accurately, notwithstanding his frustration and upset over the subject matter of that evidence, which he bitterly referred to as amounting to a waste of 10 years of his life and the lives of his children. 46In reaching that conclusion on the plaintiff's credibility as a witness I have not accepted the suggestion made by the defendant's orthopaedic specialist, Dr John Cummine, that the plaintiff had attempted to "maximise or embellish his apparent disability". That comment was made by Dr Cummine before it was identified that the plaintiff's cervical spine needed to be and was subsequently, surgically fused. Furthermore, that comment did not appear to take into account the psychological factors impacting upon the plaintiff. 47Although there were some points of difference in detail which appeared in parts of the plaintiff's oral evidence compared to the content of the documentary evidence, I did not consider those matters to have materially detracted from the overall credibility, or from the reliability of his testimony. 48An example of one such matter was the plaintiff's evidence that in the accident he had sustained damage to a number of his teeth, a matter accepted by the MAS dental Assessor. When the plaintiff was asked if he could explain why the hospital notes only referred to a single chipped lower incisor tooth he explained, not incredibly, that his teeth had not been fully examined at the hospital. Given the focus on his other injuries at the hospital, I did not consider that explanation to be lacking in credibility. This is an example of why summarised medical histories in medical reports should be treated with caution when assessing the credibility of oral testimony: Mason v Demasi [2009] NSWCA 227. 49The defendants tendered reports from Dr Cummine following his examinations of the plaintiff in 2004 and in 2012. Each of Dr Cummine's two reports referred to his observations that the skin on the plaintiff's hands was callused, with dirt ingrained into the callused skin and under the fingernails of each hand. Dr Cummine concluded there was evidence of the plaintiff carrying out physical work on a regular basis and that the plaintiff was capable of carrying out all forms of work without restriction. That conclusion was contrary to the case sought to be made by the plaintiff. 50The evidence summarised in the preceding paragraph gave rise to a potential credit issue involving the plaintiff's account of his activities and the claim of incapacity for work. There was no evidence within Dr Cummine's reports to suggest that he had raised with the plaintiff the question or significance of the observed calluses and ingrained dirt on his hands to afford the plaintiff a fair opportunity to comment upon or explain those observations, which may have been due to a number of factors. 51At neither of the two stages of the hearing, either in 2009 or in 2013, when the defendants had unfettered opportunities to cross-examine the plaintiff on any relevant issue, were there any questions directed at the plaintiff concerning those observations by Dr Cummine. Furthermore, the defendants directed no submissions to those matters. 52Accordingly, without the plaintiff having been given the procedurally fair opportunity to comment upon and explain Dr Cummine's observations that are the subject of present analysis, I do not consider those observations made by Dr Cummine properly raise credit issues, and I have therefore not considered them in that vein. 53There was no reason to doubt the credibility or the reliability of the factual evidence given by any of the other witnesses. The reliability of the content of the expert medical opinions tendered in the proceedings must be assessed according to the content and reasoning within that evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; UCPR Sch 7, cl 5(c).

Facts 54In setting out my findings of fact in the ensuing paragraphs, unless otherwise stated or qualified, I have accepted and drawn upon the oral testimony, the undisputed events recorded in the plaintiff's chronology as conceded on behalf of the defendant, and upon matters of history summarised in the medical reports tendered: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995.

Plaintiff's background and pre-accident circumstances 55At the time of the accident, the plaintiff was aged almost 44 years. At the time of the first phase of the hearing in 2009 he was aged 50 years. He is now aged almost 54 years. He attended primary school in Madang in Papua New Guinea. After the declaration of that country's independence, he moved to Australia and received his secondary education to School Certificate level in Queensland, following which he moved to Sydney at age 16 years in order to find work. He has lived in Sydney since that time. The plaintiff had been married and has 3 children of that marriage who are now adults. He was divorced in 1993. Since the divorce his children spent a good deal of their time living with him in circumstances where he had assumed the responsibilities of parenting. 56The oral evidence of the plaintiff's pre-accident work history was adduced in vague and non-specific terms. This was augmented by a chronology which was not disputed, and which evolved between the hearing in 2009 and the resumed hearing in 2013: MFI "1" and MFI "9". 57In 1976, the plaintiff initially worked as a shop assistant in a supermarket at French's Forest. Between 1976 and 1979 he then worked in the automotive repair industry, first as an apprentice motor mechanic and then as an unqualified brake mechanic. His employers at those times had not given him the opportunity of completing an apprenticeship. Between 1980 and 1987 he worked for a freight company, initially as a dockhand, and then as a driver. 58In the course of that employment, in about 1984, the plaintiff sustained a back injury whilst lifting a heavy weight of approximately 150kgs. He had about 6 weeks off work following that injury. He then continued in that same work until about 1986, when he collapsed at work due to totally debilitating back pain which required hospitalisation for an unspecified period. Thereafter, he remained off work for an initial period that was unspecified in the evidence. After resuming work, he then had about 10 months off work in 1988. He later pursued a workers compensation claim in respect of that injury, which had left him with a chronic back condition involving damaged lumbar discs. The plaintiff still maintains some feelings of anger about that injury and the former employer's management of that injury. 59Between 1988 and 1989, the plaintiff worked for Amos Plant Hire as a water tank driver carrying out commercial deliveries of water to various domestic locations, farms and industrial sites. This principally involved him in the filling of a mobile water tanker from water hydrants and then attending at domestic premises or earthmoving sites and either filling tanks on the premises or spraying water on earthworks at those sites. He found that work to have been within his physical capacity. 60Thereafter, between 1990 and 1992, the plaintiff worked as a truck driver for various companies driving coal trucks on a casual basis. In 1992 and 1993 he was driving crane trucks and container trucks. 61In that period the plaintiff had experienced marital difficulties which led to a breakdown of his marriage, and to a subsequent divorce in 1993. The plaintiff still maintained some anger towards his ex-wife regarding those events. This had affected his outlook and his work capacity before the subject accident. The plaintiff's last paid pre-accident employment was with Aeroflex Transport, apparently as a truck driver at a container terminal, for about 5 months in about 1996. Apart from that, the plaintiff was out of the workforce for about 8 or 9 years due to parenting responsibilities and because of the psychological reaction he had to the divorce. In that period, during which his medical records show he was regularly affected by lower back problems. In that time, the plaintiff became depressed and was drinking alcohol to excess at times of stress. 62Between 2000 and 2003 the plaintiff had carried out some unpaid casual work for a firm called John Harold Engineering. This had been arranged for him by the kind actions of a friend, with the intention of keeping him occupied, and getting his mind off his problems, and in his own words, to get him "back on track", which I take to mean motivating the plaintiff to return to active paid employment in a more positive frame of mind. 63By 2003, in the course of those events, and in preparation for his plan of self-employment, the plaintiff had adopted a more positive outlook, and had ceased drinking alcohol except for social drinking on weekends. This is corroborated by the unchallenged evidence of Mr Faletau: Exhibit "F", at paragraphs [8] to [11] and [19]. 64At the time of the subject accident the plaintiff was taking active steps to pursue self-employment in a water carting business which, based on his earlier experience of work in that industry, he felt he was capable of pursuing, notwithstanding his pre-existing lower back problems. 65Beforehand, in 2002, and with the above aim in mind, at the age of 43 years, the plaintiff had enrolled in the NEIS programme, which was a 12-month government mentoring programme aimed at securing employment. This provided small business training to persons on social security benefits. He had completed the initial 6 months programme and was into the 5th month of the complementary mentoring programme when the accident occurred. As a result of the accident, the plaintiff was unable to complete the programme. In those circumstances, the plaintiff viewed the accident and its consequences for him as a major setback in his life. 66Whilst undergoing the NEIS programme, on 17 January 2003, the plaintiff had purchased an 8 tonne truck and a 12 tonne water tank with the aim of working as a water carter: Exhibits "A" and "B". He had planned to do the same sort of work he had been carrying out when he had been employed by Amos Plant Hire years earlier. The plaintiff had realised he would have to purchase a larger vehicle to carry the water tank he had purchased and was in the process of purchasing such a vehicle. He had paid the vendor some $25,000 for the equipment and the vendor gave him what I infer were books of account which included contact details of the vendor's past customers who had used his water carting services. 67The plaintiff had also purchased some other items of equipment for the purpose of his proposed water carting business. The plaintiff had contacts in the earthmoving industry and in the weekend domestic water carting industry. It was for these reasons that he had purchased a domestic water carting tank. He was intending to pursue this and other related lines of work were it not for the subject accident. In support of his claim for economic loss, the plaintiff called some financial evidence from Mr Wilson relating to the availability and profitability of work in the water carting industry. That evidence, and the feasibility of the plaintiff's planned enterprise will be analysed in the context of the assessment of that claim. 68Before making findings as to the nature and extent of the plaintiff's accident related injuries, disabilities, the mitigation issue and any assessment of the plaintiff's claim for damages, it is necessary to identify the plaintiff's pre-injury health history and to review the chronology of medical assessments in addition to the already identified and reviewed MAS assessments.

Plaintiff's pre-injury health 69The plaintiff's pre-injury health status was not problem-free. He had a pre-existing lower back condition as a legacy of his 1984 industrial accident. From the psychological perspective, he also had a pre-accident history of taking alcohol in excess as a coping mechanism. He had done so at a time of personal crisis, namely his marital breakdown and subsequent divorce. 70The plaintiff was asked some questions about the state of his back condition in the years before the subject accident. His evidence in chief on those matters on Day 1, at T5.26 to T6.1, was as follows: "Q. In respect to that back injury you've suffered years ago with Comet, you brought a workers compensation claim did you not? A. Yes. Q. How was your back in the years before this accident in 2003? A. I'd gained control. Q. What's that mean? A. Prior to that I was eating pain killer tablets, ten to 15 tablets per day just to do a day. Q. Then when you say you "gained control"? A. Well it was after I was having cortisone injections on a monthly basis that I realised where I was becoming addicted. Q. Mr Liccardo (sic) you told me that you gained control of this problem, remember saying that? A. Yes. Q. What were you like at that stage? A. When I gained control? Q. Yes? A. It was just average, normal - nothing out of the ordinary, I just worked, I could do normal work again." 71It is plain from the above extract from the evidence and the medical evidence that will shortly be reviewed, that before the subject accident, irrespective of the plaintiff's view that he could do normal work again, he needed to take care in respect of his physical activities in order not to aggravate his underlying lower back condition, the legacy of his 1984 injury. It is also plain from the plaintiff's evidence, and from the notes kept by his treating general practitioner, that at times before the subject accident, he also needed to continue taking prescribed painkilling medications for that lower back condition. 72The plaintiff conceded a history of psychological reaction to life's adversities. It appears from the history within the report of Professor Mattick (at 2.6) that the plaintiff married in 1984. He and his wife were divorced in 1993, this led to the plaintiff experiencing psychological difficulties in his life, and becoming depressed and using alcohol to excess. The evidence given by his daughter confirmed that this was so. Following the ensuing divorce he assumed significant childcare responsibilities. This necessarily limited his opportunities to pursue work, and as a result, this and his reaction to his circumstances kept him out of the workforce for almost a decade. The plaintiff felt these circumstances also had the effect of thwarting his plans for the education of his children. 73It is against those background circumstances before the subject accident that the plaintiff started taking alcohol to excess so as to become dependent on alcohol. This was described in his evidence in chief on the first day of the hearing, at T6.15 to T6.50, as follows: "Q. What happened to you from an emotional point of view? A. I just went downhill, everything I'd worked for was gone. Q. Did you take to drinking? A. Not immediately, I did yes. Q. Not in - after a while did you, drinking heavily? A. Only on weekends and then it just progressed as things became worse. Q. Initially your three children who were then from nine down, nine, seven and five years of age went to live with their mother but then came to live with you? A. Yes. Q. Were you able to look after them and work as well in the years from the time they came to live with you? A. Yes. Q. In respect to - you told me everything you worked for had gone, when you were married you and your wife had a house? A. Yes. Q. What happened to that when the marriage broke up? A. That was sold and - it was going to be repossessed by the bank but we sold it for just enough to pay the bank. Q. And as the children got a bit older and were at school and so on, I realise you did this container truck driving for a while in 1996, but were you able to do any other work and look after them as well when they were young? A. No as a sole parent I couldn't do work - as a male sole parent you couldn't find work, I just did casual jobs for people here and there. Q. In 1997 your father died? A. Yes. Q. You received an inheritance? A. Not immediately but yes." 74It appears that in addition to receiving some benefits in that time, the plaintiff had also been using his share of an inheritance from the estate of his late father to live on in the years he was not working and whilst he was engaged in family responsibilities.

Pre-injury medical evidence of plaintiff's health status 75In order to assess the reliability of the plaintiff's account of his pre-accident circumstances and his history of alcohol use, the preceding historical accounts provided by the plaintiff required evaluation having regard to the objective pre-accident medical records of his attendances for various medical treatments and assessments, as well as having regard to the factual evidence given by the plaintiff's son and daughter, and by Mr Faletau. 76This is particularly necessary in order to evaluate the defendant's submissions on the question of mitigation related to the plaintiff's pre-accident level of alcohol consumption, and also because of a causation issue in connection with the plaintiff's pre-existing back injury. 77The defendants tendered some 21 pages of photocopied handwritten notes kept by the plaintiff's treating general practitioner, Dr Kerecz, covering the period of the plaintiff's consultations with that doctor from 21 December 1988 to 16 June 2003: Exhibit "2". 78Relevantly, in that period Dr Kerecz's notes make numerous pre-accident references to the plaintiff having chronic lumbar backache and occasional references to referred pains to the lower limbs. Those notes also record the numerous prescriptions issued to the plaintiff by Dr Kerecz for painkilling medications during that period. The notes also record that in 1995, Dr Kerecz referred the plaintiff to Dr Robert Smith, an orthopaedic surgeon, for consideration of lumbar spinal fusion surgery, and that the plaintiff had been on Dr Smith's waiting list for such surgery for a long time, and that the surgery had not taken place before Dr Smith retired. The notes also record that after Dr Smith had retired in 1997, in 1998 the plaintiff had been referred to Dr Warwick Stening, a consultant neurosurgeon for consideration of his L2/3 disc protrusion and related instability. 79Dr Kerecz's notes also made reference the plaintiff having been assaulted on 2 February 2002. It was recorded that this had involved him being punched in the left shoulder, face and neck. The notes also record that the plaintiff was treated with an injection into the sub-deltoid bursa of the left shoulder, and a later diagnosis was made on 7 November 2002 of left supraspinatus tendonitis in the left shoulder after the earlier shoulder symptoms had been settled for some 4 months beforehand. Those matters were not the subject of specific medical evidence or challenge, and in the context of the available medical evidence, they seem to me to be of little if any relevance to the issues raised in these proceedings, particularly because this did not seem to have interfered with the plaintiff's progress through the NEIS programme in 2002/2003. There were no recorded neck complaints between that assault and the time of the subject accident. 80In 1998, in his report to the plaintiff's general practitioner, Dr Stening considered the plaintiff's complaints of ongoing lower back pain which the plaintiff related to work incidents in which he had injured his lower back in 1984 and 1987 (sic for 1986). Dr Stening recorded a history of radiation of back pain to the legs, constant headaches, and inability to sleep. At that time Dr Stening reviewed the 1986 x-rays, a 1987 CT scan, and a 1995 MRI scan in the context of his findings concerning the plaintiff's complaints of limitation of lumbar movements in all directions to approximately three quarters of the range of normal movements. 81At that time, Dr Stening noted the presence of degenerative changes at L2/3 in the 1986 x-rays and a loss of disc height and dehydration of the L2/3 intervertebral disc space. Dr Stening thought the plaintiff had many features of lumbar instability syndrome. He raised the possibility of a pedicle screw fusion procedure at the L2/3 level. He also thought there should be a trial of immobilising the plaintiff in a plaster cast to determine whether the plaintiff was a good candidate for surgery. There was also a mention in the evidence of the plaintiff having consulted a neurosurgeon, Dr Richard Hudson, for his back problems. In his oral evidence, the plaintiff also mentioned that he had seen Dr Bleasel in connection with those problems. There was no evidence to indicate there had been any follow-up of any of those matters: Exhibit "3". 82On 14 October 2000, the plaintiff was referred to a Dr Thomas Dean by Dr Kerecz. Dr Dean noted a history that the plaintiff had been experiencing stress and anxiety associated with back pain, which he helped ease by taking alcohol: Exhibit "4". There was no objective record of the plaintiff's level of alcohol intake at that time. 83It is clear from the above summary, that the plaintiff had a significant back disability that pre-dated the subject accident. It is also clear from those summarised matters that at the time of the subject accident, the plaintiff's back was vulnerable to further injury at the site of the previous injury and was also causing him intermittent problems. 84The notes of Dr Kerecz recorded that shortly before the subject accident, on 10 January 2003, the plaintiff had been engaged with the Commonwealth Rehabilitation Service in attempts at networking aimed at securing work. Those notes also recorded that on 12 May 2003, about one month before the subject accident, the plaintiff had experienced increased back pain in the previous 3 weeks, following a recent residential move. 85In addition to making his handwritten clinical notes available, Dr Kerecz prepared a detailed letter of report to the plaintiff's solicitor in which he reviewed the plaintiff's circumstances. 86The report of Dr Kerecz which was dated 30 July 2009, formed part of Exhibit "C", made no mention of the plaintiff's pre-accident medical history. However, Dr Kerecz's handwritten clinical notes for the period between 21 December 1988 and 16 June 2003, as summarised above, contained numerous references to pre-accident consultations with the plaintiff for back pain, and for the prescription of painkilling medication for such pain. Significantly, those notes contained no references to the plaintiff's history of pre-accident alcohol use: Exhibit "2". There was no evidence that Dr Kerecz had been asked to include a discussion on those matters in his report. 87Accordingly, the plaintiff's evidence as to his pre-accident alcohol use must be assessed in light of the evidence of others who gave evidence and who knew and had observed him in that period. 88Around the time just before the occurrence of the accident, the plaintiff was optimistic of pursuing work as a water carter in his own business. He had purchased and was arranging his equipment for that work. He was equipping himself with the knowledge of how to operate a small business. He had a companion with whom he saw a future relationship, he had good reasons to feel optimistic about his own future, and he was not engaged in excessive drinking. 89To a large measure, the account of the plaintiff's situation as summarised in the preceding paragraph was borne out by the evidence of his son Nathan, who was aged 25 when he gave his evidence in 2009. He was almost 19 years at the time of the accident. Whilst stating that before the subject accident his father had not "really been an upbeat person", he considered that his father nevertheless continually tried to keep "moving forward". He said that before the accident he only saw his father drunk on the "weekends off" when the (younger) children were not around: Day 1, T79.15. He said that after the accident he had observed his father's morale plummet and that his alcohol intake had "skyrocketed". He described his father's physical state after the accident as "knackered". He described his father's emotional state after the accident as being depressed and feeling useless, and that his plans for a business had come to nought. 90The evidence of Nathan Licciardo as summarised above was not challenged. It did not seem to me to be inherently improbable. 91The above account was also largely corroborated by the plaintiff's daughter Ms Holly Shandler-Carter. She was aged almost 23 years when she gave her evidence in 2009. She was in her 16th year at the time of the accident. Her observation of her father was that before the subject accident he was healthy, physically strong and active. She said that notwithstanding his previous back injury, a matter of which she was aware, he was able to lift her and his girlfriend's son in each arm, the respective weights being approximately 80kgs and 90kgs. She described the plaintiff's home before the accident as being tidy and the children well nourished and looked after. 92Ms Shandler-Carter described her father's pre-accident emotional status as being one where "things would pent up" for him and he would then "become angry for a while, usually not for long, and it'd just burn off and it'd be fine". In contrast to those pre-accident observations, she described his post-accident emotional state as very depressed, and of him being in a lot of pain. In my view, observations of that type were within the capacity of a family member who knew the plaintiff well. She became distressed whilst giving evidence when she described the plaintiff as having turned to alcohol "to help him get through it". 93Ms Shandler-Carter described her father as having had "just too many things [go] wrong" so that it became too much for him after the accident and he just seemed to care less, complain a lot about pain, drink alcohol and take painkillers. She described him as having become depressed and withdrawn. In comparison, before the accident she had observed that her father "didn't really drink around the house when we were at home". That evidence given by Ms Shandler-Carter was explored in cross-examination but it was not shown to be unreliable. 94I found Ms Shandler-Carter and Nathan Licciardo to be impressive witnesses and I accept their evidence concerning their observations of the plaintiff both before and after the subject accident as being truthful and factually correct, along with the evidence of Mr Faletau, as already cited. 95Before coming to those views I had considered the possibility that those witnesses may have been inclined to tailor their evidence to assist the plaintiff's case. However, I discounted that possibility as it was not my impression of their evidence, and no challenges along those lines were put in cross-examination.

Accident-related injuries described by the plaintiff 96In the events of the accident the plaintiff said he leaned forward and extended his left hand and arm across the neck and chest of his front seat passenger in an attempt to prevent her from striking the windscreen. He said he sustained injury to his face due to the deployment of the air bag in the vehicle, and as a result suffered some smashed or at least chipped teeth. He said his jaw and head were pushed backward and sideways. He said that in these events he had hurt his left hand and his left shoulder. He said he had also injured himself across his neck and he had injured what he referred to as the small of his back, which he described as being in the exact same spot where he had previously sustained injury in about 1984. He described the back injury he sustained in the subject motor vehicle accident as being an aggravation of that earlier back injury. 97The reliability of the plaintiff's account of his injuries must be assessed in light of the pre and post-injury medical evidence tendered in the proceedings.

Initial treatment following accident 98Shortly after the accident, an ambulance attended the accident scene and transported the plaintiff to Liverpool Hospital. The ambulance transport report noted the plaintiff had been wearing a seatbelt at the time of the accident. The ambulance report noted that at the scene, the plaintiff was complaining of neck pain with absence of motor and sensory function. It was also noted that he was complaining of lumbar back pain against a history of prolapsed lumbar discs, and sternal chest pain. At the scene the plaintiff was given intravenous doses of morphine at 19:15hrs and again at 19:26hrs. 99The triage notes of Liverpool Hospital at 19:54hrs noted that the plaintiff's sternal pain had resolved and the ongoing complaints were of pain, then described as being at the site of an old lower lumbar injury, and of neck pain. 100The plaintiff described the initial treatment he received at hospital as comprising a CAT scan and the injection of morphine. He said that he had remained on a gurney at the hospital until about 8.00am the next day and a friend came and took him home to recuperate. He then sought treatment from his general practitioner of almost 20 years, Dr Kerecz. 101The Liverpool Hospital clinical notes provided some more detail of those events. In addition to noting the plaintiff's complaints of neck and back pain, they recorded a chipped lower incisor tooth due to being struck on the face by an airbag, but not any other injury. Those notes recorded the plaintiff had been placed in a hard collar. The notes described the plaintiff as being in a bed in the acute area. The tendered copy of the hospital medication chart had been incompletely copied. The partially copied text suggests that the plaintiff had been given some medication whilst at the hospital. 102The x-ray imaging of the plaintiff taken at the hospital reported no abnormality or obvious traumatic pathology in the cervical spine but suggested further imaging be undertaken if further neurological signs were present. The x-ray imaging of the lumbar spine also noted no obvious traumatic pathology but noted the presence of chronic degenerative changes in the L2/3 disc level. 103A subsequent CT scan of the plaintiff's cervical spine that was prescribed because of complaints of tenderness at the level C7 and C6/7 junction revealed normal alignment and no bony injury. 104At that time, the plaintiff's left shoulder was also very sore. His neck was very tense and tight, his low back was experiencing spasms, and his left hand and wrist area were extremely tender. 105I now turn to an examination of the plaintiff's post-accident medical history by reference to the array of non-MAS medical assessments that followed his discharge from hospital.

Subsequent post-injury medical and allied assessments 106The first post-hospital discharge record of any post-injury medical attendance by the plaintiff was on 16 June 2003, which was some 7 days post-accident when the plaintiff attended upon his longstanding treating general practitioner, Dr Kerecz. The details of those subsequent consultations appear within the report of Dr Kerecz dated 30 July 2009. 107Dr Kerecz's report dated 30 July 2009 was tendered without objection at the first phase of the hearing in 2009. The defendants had not required Dr Kerecz for cross-examination on his report at any stage of the proceedings. Dr Kerecz's report details the effects of the accident upon the plaintiff as noted by him over the course of some 10 consultations at sporadic intervals in the period between 16 June 2003 and 22 January 2009. As the report of Dr Kerecz was largely historical, I do not consider the absence of an acknowledgment by him of the Expert Witness Code to be of any significance in this case. 108Between 10 November 2005 and 23 May 2008, there was a gap in the plaintiff's consultations with Dr Kerecz. In that period, in February 2008, the plaintiff had been diagnosed at Royal North Shore Hospital with multiple pulmonary emboli and deep venous thromboses apparently due to a condition of "lupus anticoagulant", an abnormal antibody formed through a defect in the immune system which causes increased and inappropriate blood clotting, and thereafter requiring lifelong anticoagulant therapy. This condition was stated by Dr Kerecz to have been unrelated to the motor vehicle accident. 109Some of the medical histories contain references to the occurrence of a similar thrombotic event in 2004, but the details of this were not well documented in the evidence. 110There was no evidence tendered that described the plaintiff's treatment at Royal North Shore Hospital for his haematological and thrombo-embolic problems. 111In compiling his historical report for these proceedings, Dr Kerecz noted that it was not until the consultation with the plaintiff in May 2008, some 5 years after the accident, that he became aware of the plaintiff's practice of drinking to excess to attempt to cope with his pain. 112That history was only revealed to Dr Kerecz when he had queried the plaintiff's treatment by way of anticoagulant injections rather than through oral Warfarin medication, which otherwise seemed more appropriate to Dr Kerecz. It transpired that the plaintiff's use of intravenous anticoagulants had been mandated because of his excessive alcohol intake, which contra-indicated the taking of the oral anticoagulants that were then available. 113In the body of his report dated 30 July 2009, written for the purpose of these proceedings, Dr Kerecz reviewed the plaintiff's past history and summed up the position as follows: "As I have been compiling this report amid extensive research of the case file, it becomes more apparent how confusing and frustrating it has been to attempt to treat him. He has consistently failed to follow through with referral and consequently, his attendances to me have been punctuated by long periods, even years. Shane volunteers that he has been "all over the place" and he feels that this is a major part of his disability. His attempts at self-treatment with excessive alcohol consumption - he admits to drinking 2 to 4 litres of wine daily - have no doubt impacted upon this. As to how this all fits together: there is certainly a very significant past history of degenerative disease of the spine and he has suffered from this since 1984. He was being considered for lumbar spinal fusion 14 years ago. However, Shane feels that his lumbar spine has been severe exacerbated by the accident. He also has neck and thoracic spine pain and some of these areas will be complicating others because of guarding and compensatory muscle spasm which places excessive demands on areas which may still be mobile. The left hand problem and right knee still disable him and render him unsteady. There is probably a degenerative component to the knee pain also. The issue of Shane's capacity to return to his pre-injury employment is also difficult as he was considerably disabled before the accident. I don't know how to quantify the further negative impact, however, when someone is already struggling, further adversity may be far more disabling than for someone who had been fit. The mental effects have probably been as significant as the physical ones. I believe Shane's diagnosis as to conditions caused by or exacerbated by the motor vehicle in question is as follows - - exacerbation of degenerative disc disease and instability of lumbar spine - exacerbation of cervical spondylosis - thoracic spine pain - traumatic arthritis to 2nd and 3rd metacarpo-phalangeal joints left hand - osteochondral damage to 3rd metacarpal head left hand - 4th left sternocostal joint arthrosis - arthrosis right knee - exacerbation of alcohol dependence / abuse" 114Unfortunately, due to his own intervening illness, Dr Kerecz became unable to continue seeing the plaintiff professionally. At the time of the resumed hearing, the plaintiff was in the course of waiting for an appointment with another general practitioner who also happens to be the same doctor whom Dr Kerecz himself consults. 115At the first phase of the hearing in 2009, the medical documentation of the plaintiff's case was somewhat sparse. Whilst the second phase of the hearing in 2013 provided a little more information on the plaintiff's medical case, there were still obvious gaps in the chain of information left unfilled and unexplained. Having considered those unexplained gaps in the chronology of medical consultations, I do not consider them to be materially significant in light of the issues upon which the parties focussed their attention. 116In the paragraphs that follow, I set out a chronological summary of the post-accident medical assessments of the plaintiff with doctors other than Dr Kerecz before returning to consider the history of the management of the plaintiff's unrelated haematological issues. 117On or about 21 July 2004, Dr Geoffrey Lyons, a specialist hand surgeon, advised that the plaintiff's problem of recurrent clicking in his left index finger was possibly due to a capsular or ligamentous problem that had failed to adequately respond to local steroid injections. The CTP insurer had declined to pay for a recommended diagnostic MRI scan, and as a result, the plaintiff's left index finder was left untreated. 118On or about 26 July 2004, Dr David Yee, another specialist hand surgeon agreed with Dr Lyons that an MRI was required to demonstrate the ligamentous structures of the plaintiff's left index finger. That MRI was not carried out due to the lack of funding from the CTP insurer. 119There were no reports concerning the plaintiff's thrombotic problems that first occurred in 2004. 120On 21 November 2005, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad considered the plaintiff had sustained a substantial whiplash injury in the accident, as well as a substantial (left) shoulder strain and an aggravation of a previous back injury. Dr Conrad assessed these injuries as having ongoing effects on the plaintiff's neck, back, left shoulder, left hand, and leading to bilateral sciatica. Dr Conrad considered the plaintiff's prognosis to be uncertain. 121On 20 December 2005, at the request of his solicitors, the plaintiff was assessed by Dr Julian Parmegiani, a consultant psychiatrist. After examining the plaintiff, Dr Parmegiani concluded that the plaintiff had presented with a relapse of alcohol abuse, which on the history had first become evident following the breakdown of the plaintiff's marriage, and which was followed by a period of control of the plaintiff's drinking, that was achieved by about 2000. The subject accident had led the plaintiff to relapse into harmful levels of drinking. 122Dr Parmegiani noted the plaintiff was depressed, worried about his future, and was experiencing financial hardship. He considered these matters perpetuated his distress and his harmful drinking. He related the phenomenon of harmful drinking with depression, and vice versa. Dr Parmegiani found that it was difficult to state a prognosis without specialist psychiatric treatment, which he recommended. The plaintiff did not have the treatment recommended by Dr Parmegiani. The circumstances of this were not explored. 123On 19 February 2007, the plaintiff saw Dr Conrad for a second time. In addition to his previous diagnosis, Dr Conrad stated that physiotherapy, psychiatric support and rehabilitation interventions were required. Dr Conrad noted the plaintiff's prognosis for recovery was very poor. 124On 24 July 2008, the plaintiff saw Dr Conrad for a third time. He noted that the plaintiff's condition had basically remained unchanged. Dr Conrad's assessment and prognosis remained unchanged. 125On 2 March 2009, Dr Parmegiani re-assessed the plaintiff and prepared another report for the plaintiff's solicitors. Dr Parmegiani noted the plaintiff had remained depressed about his predicament, was withdrawn, unmotivated, and had gained weight due to comfort eating. He noted the plaintiff was emotionally labile, cried frequently, could not "see any point" and had significantly escalated his alcohol consumption. 126Dr Parmegiani assessed the plaintiff as having an adjustment disorder, with mixed anxiety, depressed mood and alcohol abuse. He noted the plaintiff sought relief from his physical and psychological symptoms by using alcohol, but this exacerbated his psychological problems in the longer term. 127Dr Parmegiani stated that alcohol can induce depression. He said that mood could improve after 6 - 8 weeks of abstinence. He reiterated the plaintiff needed drug and alcohol counselling and specialist psychiatric treatment, none of which had taken place prior to the hearing in 2009. The circumstances of this were not explored. 128Dr Parmegiani gave oral evidence at the first phase of the hearing in 2009. In his oral evidence he postulated that as a result of a combination of the plaintiff's pain, the loss of his goals and loss of the business he had planned to establish, the plaintiff began to feel sorry for himself and turned to alcohol as a coping mechanism which he had known from his past, and he therefore started drinking excessive amounts of alcohol from that time onwards, to the point of addiction. 129Dr Parmegiani explained that taking alcohol had a sedative, mood-lifting and muscle relaxant effect, and if alcohol was consumed in quantity, it dulled pain and helped with sleep. 130Dr Parmegiani stated that taking alcohol results in the short term relief of symptoms, including depressed mood, but in the longer term it makes the depression worse, and the plaintiff's emotional lability, lack of motivation and depression are probably a consequence of the plaintiff's illness and alcohol consumption. He explained that people who drink large quantities of alcohol on a daily basis tend to lose their motivation to do anything else, and alcohol becomes the focus of their lives. He considered that the worry in the plaintiff's situation was severe brain damage due to alcohol intake, which could result in the inability to carry out self-care. 131On the question of clarifying whether it was probable that the plaintiff had such brain damage as postulated, Dr Parmegiani gave the following evidence on Day 2, at T43.21 to T45.22: "Q. The other matter of concern I have is that you mentioned the possibility that by reason of the alcohol consumption to date, the plaintiff may have brain damage and that was a matter that really can't be fully ascertained, if I'm paraphrasing you correctly, until he's had his six weeks of abstinence. A. Yes. Q. Have I summarised that correctly? A. Yes. Q. For whatever reason, a decision has been made to have the trial proceed now without that abstinence period, and I can't ignore the issue that's arisen. Can you guide me in some way, if you can, as to the analytical approach to determining the probability of whether or not this is an issue in his case? ... [Objection to the above question was overruled] ... WITNESS: Well, given the level of drinking and the time that it has occurred over, I would conclude that he has a degree of brain damage which is probably already interfering with his life. Some of it may be reversible. Maybe a small amount of that brain damage within a period of abstinence - because there is some improvement within the first 12 months of abstinence, but most of it will still be there. Now, in terms of quantifying it, I can't do that, but I would suspect that some of his inability to function, to organise himself, to resist impulses and emotions may be due to damage caused by alcohol. Some problems with memory would also be explained by brain damage - damage to the frontal lobes and temporal lobes." 132Dr Parmegiani stated that drinking alcohol in order to dull pain perpetuated the plaintiff's drinking by providing him with a reason and motivation to do so, with consequential damaging effects on the liver and the brain. 133Dr Parmegiani was asked to consider the plaintiff's reliance on alcohol as a coping mechanism in response to personal setbacks in his life. He explained that such resort to alcohol was a learned behavioural response in the plaintiff's situation, where the plaintiff had feelings of hopelessness without apparent hope of change, regardless of what others told him. 134Dr Parmegiani identified the fact that about 10 per cent of chronic alcoholics keep on drinking despite treatment programmes. He identified difficulties in engaging alcoholics in a successful treatment programme. Dr Parmegiani expressed a concern that the plaintiff "may be too brain damaged to benefit" from treatment for alcoholism. He was of the view that it was going to take some catastrophic event for the plaintiff to take the step of becoming motivated to seek treatment for his alcoholism. 135Dr Parmegiani stated that in the plaintiff's situation, a treatment programme would as a first step require a 6 week programme of abstinence from alcohol. This would involve a period of 4 to 6 weeks in a hospital, at a cost of about $5000 per week, in which time his depression could be assessed to determine whether it had lifted with abstinence, or if not, it would then be treated as a primary disorder unrelated to alcohol. The next step would be to treat the plaintiff's pain by analgesics with the involvement of pain specialists, with focus upon alternatives to alcohol for pain control, in association with the input of a drug and alcohol expert. 136Dr Parmegiani identified a problem in treating the plaintiff's alcohol abuse with Naltrexone as that drug interfered with the effect of narcotics which may be required for pain relief. He also identified that pain management treatment for the plaintiff could only start after the alcohol was out of his system, as alcohol and narcotics in combination could be potentially lethal. 137Dr Parmegiani identified what he considered to be the complicating factor in the plaintiff stopping drinking and overcoming his resistance to treatment. This was, given the amount of the plaintiff's drinking, he questioned whether the plaintiff had brain damage to the point of being unable to exercise his better judgment on the issue of needing to stop drinking: Day 2, T40.15. 138Dr Parmegiani was asked to consider the prospect of the plaintiff simply giving up alcohol by himself, and assuming self-control as he had done in approximately 2000. Against that background, Dr Parmegiani considered this item of history to be a sign for the potential of the plaintiff to be treated, as in the past, he had proved to himself that he could stop drinking. 139However, Dr Parmegiani qualified that evidence, stating that now, so many years later, it would be far more difficult physiologically, and probably psychologically, for the plaintiff to stop drinking this time around compared to when he did so the first time around. This was because since the first time (mistakenly put by the cross-examiner as being in 1993 instead of about 2000), the plaintiff has been drinking for longer and in greater amounts, making it harder for him both physiologically and psychologically, to give it up. 140Dr Parmegiani also identified another complicating feature, namely his view that the plaintiff had a constitutional vulnerability to drinking alcohol. He said the plaintiff may be one of the few people who developed drinking problems due to a combination of constitutional factors and circumstances inherent as genetic differences in some people. 141Dr Parmegiani identified the mechanism of reinstatement of drinking, a reference to alcohol dependence being known as what was referred to elsewhere as a chronic relapsing condition. He referred to this in physiological terms, as "some genetic switch that is flicked on and ... best evidenced by a phenomenon called reinstatement". Significantly, on Day 2, at T43.25 to T43.40, Dr Parmegiani explained that mechanism in the following terms: "... If you're an alcoholic, you drink excessive amounts and then you stop drinking and it might have taken you ten years to build up your tolerance to say, drinking 40 drinks - standard drinks per day. It's not something you can walk in to. It takes many years. Now, you stop drinking, ten years later, after being sober for ten years, you start drinking. Instead of taking another ten years to get to those 40 drinks a day, it may take only a few weeks. In other words, all your genes turn on again, so you're back to your full-blown alcoholic consumption when you last left it. That's something called reinstatement, and it shows, basically, that the constitution has changed forever. Q. To use an alternate description, please tell me if it's wrong, but is there some form of conditioning by a prior alcohol experience? A. Genetically, yes, at a cellular level. All the enzymes fire up again even after an abstinence of 20 years." 142Dr Parmegiani was not recalled to give any updated evidence at the resumed hearing in 2013. His evidence given in 2009 stood uncontradicted by other expert evidence, but it also had to be read in conjunction with the additional factual evidence, the evidence of the MAS assessors' reports and the reports of the clinical psychologists that post-dated the 2009 phase of the hearing. The chronology of the MAS assessments has already been outlined at paragraphs [29] to [37] above. The chronology of post-2009 medical and allied assessments continues in the ensuing paragraphs. 143There was no evidence as to the detail of any therapeutic attempts between 2009 and 2013 to assist the plaintiff to either lessen or relinquish his use of alcohol, except for some limited evidence of the circumstances surrounding the plaintiff preparing for his cervical spine surgery carried out on 25 January 2011. 144On 20 January 2011, at the referral of his solicitor, the plaintiff was seen for psychological assessment by Mr Greg Fathers, a forensic psychologist. The plaintiff attended that assessment whilst affected by alcohol and painkilling medication. Mr Fathers elicited admissions from the plaintiff that he had resorted to chronic alcohol abuse at two junctures in his life, the first being in the final stages of his marriage and separation, and the second being much later, after the subject accident. 145The psychological testing undertaken by Mr Fathers revealed neuropsychological deficits in the plaintiff, suggesting frontal lobe pathology concerning executive functioning, and psychological symptoms that also impacted upon the plaintiff's functioning and upon his emotional state. Those test results may have been to an unknown extent confounded by the plaintiff's alcohol intake around the timing of the tests. 146Mr Fathers agreed with the diagnosis expressed by Dr Parmegiani and with the suggested admission of the plaintiff to a detoxification and rehabilitation programme to deal with his alcohol abuse, but noted a lack of motivation or willingness of the plaintiff to do so. This was in the context of Mr Fathers' view that the plaintiff was caught up in his past and needed prolonged psychological intervention to sort through his problems. In a subsequent commentary dated 25 July 2011, Mr Fathers stated that complicating features for psychological intervention were the pain associated orthopaedic issues. 147On 25 January 2011 the plaintiff underwent neck surgery at Concord Hospital. I shall shortly return to the context of that treatment in connection with the analysis of the haematological investigations and treatment he received at that Hospital. 148On 6 July 2011, the plaintiff saw Dr Conrad for a fourth time. He noted the plaintiff continued to have significant pain and stiffness in his neck, pain in his back radiating into the legs, as well as pains in his left shoulder and hand. Dr Conrad commented on the plaintiff's recent anterior cervical fusion procedure performed in January 2011, but noted significant ongoing symptoms remaining in the plaintiff's left shoulder and weaknesses in the left hand, which he noted had received a direct injury in the accident. He also noted continuing lower back related symptoms. He reiterated that the plaintiff had a very poor prognosis for recovery. 149On 28 July 2011, at the request of the solicitor for the plaintiff, Dr Conrad reviewed his earlier reports and provided a commentary in which he stated his opinion that the plaintiff's anterior cervical fusion was incurred as a direct result of the subject motor vehicle accident. That opinion remained unchallenged by other evidence. 150On 16 November 2011, Dr Chung, a dentist, assessed the plaintiff's damaged dentition and suggested an extensive range of treatments involving restoration, extraction of a tooth and the fitting of a crown as well as a recommendation for an implanted prosthetic tooth. On 28 May 2012 that treatment plan was updated. By 25 October 2012, that treatment had not proceeded, due to the plaintiff's impecuniosity, and at that time one of the plaintiff's teeth had to be extracted due to infection, and now required a prosthetic implant. 151On 22 August 2012, Dr Conrad saw the plaintiff for a fifth and final time. In his report of that consultation, Dr Conrad in essence reiterated his earlier opinions and again expressed the view that the prognosis for the plaintiff's recovery was very poor. 152At the first phase of the hearing in 2009, the material tendered did not then indicate, as was subsequently disclosed in the plaintiff's oral evidence at the second phase of the hearing in 2013, that he was seeing medical practitioners other than Dr Kerecz in early and mid-2009, and that those practitioners had been communicating with Dr Kerecz. 153Those other medical practitioners included a Dr S Tambimuttu, at West Ryde Medical Centre, a practice located some distance from the plaintiff's home. It is uncertain whether or not that doctor was the general practitioner whom the plaintiff had been consulting in addition to Dr Kerecz for prescriptions of painkilling medications. Neither party tendered material from Dr Tambimuttu. 154In mid-2009, co-extensive with his consultations with Dr Kerecz, the plaintiff was under the care of a number of specialists at Concord Hospital. The initial focus of the care at Concord Hospital was to manage his need for anti-coagulant therapy due to his previous history in 2008 of deep venous thrombosis [DVT] and ventriculothoracic embolism [VTE] related to his pre-existing and unrelated constitutional background condition of being lupus anticoagulant positive. 155At Concord Hospital, the plaintiff's thoracic anticoagulant issues were managed by Associate Professor Michael Peters, who was in communication with Dr Tambimuttu and Dr Kerecz. Associate Professor Peters was of the view that the plaintiff did not have any functionally significant cardiopulmonary abnormality. 156A letter dated 27 March 2009 from Associate Professor Peters to Dr Tambimuttu referred to the plaintiff's chronic back pain and "other pain". He noted the plaintiff's practice of taking 400g of alcohol per day on more days than not, mainly in the form of red wine. He noted this was injurious to the plaintiff's health, and he noted the plaintiff rationalised the relative health harms from this because he felt analgesics including opiates were potentially harmful to his health. He expressed the view that it was unlikely the plaintiff's pain control would be easily managed until such time as the present litigation remained unresolved one way or another: Exhibit "M". 157At that time Associate Professor Peters believed that some precision should be brought back into the plaintiff's health care. That statement was not made in the context of criticism of any other practitioners. Consistent with his stated view, he then referred the plaintiff to Dr Jennifer Curnow, a haematologist, to re-evaluate the plaintiff's future thrombotic risk. He also referred the plaintiff to Dr Bain Shenstone, a rheumatologist who was also on the staff of Concord Hospital: Exhibit "M". 158On 25 May 2009, the plaintiff saw Dr Curnow for the first time at the referral of Associate Professor Peters. Dr Curnow copied her subsequent correspondence concerning her management of the plaintiff to Dr Kerecz: Exhibit "J". At her initial assessment of the plaintiff on that day, Dr Curnow noted the plaintiff's medical diagnoses to be thromboembolism, hypertension, chronic back pain, hyperlipidaemia and alcohol excess. 159Dr Curnow noted there had been no significant difference in the plaintiff's alcohol intake from 2004 until the time of her examination in 2009. She noted the occurrence of an unprovoked pulmonary embolus in 2008, with subsequent continued use of Clexane anticoagulant therapy in preference to Warfarin due to the level of the plaintiff's use of alcohol to sedate himself, along with the use of Endep for management of chronic back pain. She described the quantity of the plaintiff's alcohol intake as being "enormous", comprising 2-4L of red wine per day. 160In her first review of the plaintiff, Dr Curnow noted the plaintiff's current anticoagulant therapy with Clexane appeared to have provided successful secondary prophylaxis. She noted as present risk factors the admix of the plaintiff's relative immobility, his method of achieving sedation to attempt management of his chronic pain and his antiphospholipid antibody status. She arranged appropriate follow-up tests and assessment. 161On 23 June 2009, at her second review of the plaintiff, Dr Curnow identified that the plaintiff's test results had revealed an elevated Factor VIII level as a risk factor of 242 per cent. She noted that Factor VIII had a linear increase in risk of a first and recurrent VTE, and the plaintiff's test result was at a significantly increased level. The practical significance of those matters was not explored by the parties through evidence. In those circumstances there are well recognised limits on drawing specific inferences from those technical descriptions without explanatory expert evidence: Strinic v Singh [2009] NSWCA 15. 162Additional risk factors identified by Dr Curnow were the plaintiff's weight, his intermediate sub-therapeutic anticoagulant dosing and therefore sub-optimal use of Clexane, and the plaintiff's reluctance at that time to increase his dosage of Clexane by additional daily injections. The apparent reason for that reluctance was the plaintiff's tendency to forget after having consumed a large amount of alcohol. 163On 19 August 2009, at her third review of the plaintiff, Dr Curnow noted that the plaintiff had begun quantifying his alcohol intake, which he had previously been unable to do. She noted that the plaintiff had no symptoms to suggest recurrent VTE and he had no arterial symptoms. She noted that whilst it would be preferable for him to be treated with Warfarin, that was not possible with the plaintiff's then current level of alcohol intake. Dr Curnow noted that the plaintiff's obesity and elevated Factor VIII (which by that stage was at 243 per cent) represented ongoing risk factors. Dr Curnow said that the plaintiff's Clexane dose, whilst less than optimal, was nevertheless a prophylaxis for secondary VTE to that time. 164On 17 November 2009, the plaintiff was reviewed by Dr Curnow's registrar, who noted that there had not been any significant (haematological) problems since the last consultation. At that fourth haematological review, it was noted that the plaintiff had been experiencing significant issues with chronic left shoulder and left wrist pain in the intervening period. Dr Curnow's registrar noted that there had been erratic fluctuations in the plaintiff's nevertheless significant levels of alcohol intake employed as a coping mechanism for chronic pain. However, it was also noted the plaintiff was by that time eating more regularly, and had a more balanced diet. The management of the plaintiff's haematological problems had remained unchanged, and the plaintiff did not want to increase his Clexane injections to twice daily because of problems with pain and bruising at injection sites. 165On 25 May 2010, at the plaintiff's fifth attendance for review at the Haematology Clinic, Dr Curnow noted that his alcohol intake had significantly reduced to approximately 60g per day, which was well down from the previous intake of 400g per day. This was a change from about 40 alcoholic drinks per day to about 6 such drinks per day. At that time, the plaintiff's anticoagulant test results showed his Factor VIII level had remained elevated at 261 per cent. This represented an ongoing risk for VTE, and without anticoagulant treatment he remained at risk for recurrent thrombo-embolic events in view of the prior history of unprovoked VTE, although there were no current VTE symptoms present. 166At that consultation, there was discussion over a possible change in the plaintiff's anticoagulant therapy to a new oral medication which was the subject of a current and due to be reported clinical trial. Dr Curnow had arranged to see the plaintiff again in November 2010, however, the evidence did not disclose any further reports from either Dr Curnow or from her clinic. The absence of such reports, and the plaintiff's current haematological status and current risk factors remained without further explanation at the time the second phase of the hearing had concluded. Neither party had directed any questions or submissions to that issue, which was potentially relevant to the question of possible adverse vicissitudes. 167On 1 July 2009, the plaintiff was examined by Dr Bain Shenstone, a consultant rheumatologist, at the referral of Associate Professor Peters, who was endeavouring to achieve greater precision in the management of the plaintiff's medical problems. The focus of Dr Shenstone's examination of the plaintiff was to assess his complaints of chronic pain involving the lumbar spine, thoracic spine, trapezial area of the left shoulder and the left arm: Exhibit "K". 168Dr Shenstone took a detailed injury and industrial history from the plaintiff. His report went on to state: "Currently he has chronic posterior cervical and trapezial pain, his left shoulder pain particularly with abduction. He has intermittent sharp stabbing pain of the left first and second fingers with mild dysaesthesia (sic). He continues to have chronic low back pain from the low lumbar spine which radiates up the thoracic spine to the neck and around to both inguinal and groin regions as well as down the inner aspect of both legs to the ankles. He still has intermittent paraesthesia (sic) of the dorsum of the feet. He is only able to sleep for 2-3 hours at a time and wakes constantly during the night. He is only able to sit in one particular posture for 10 minutes but provided he is able to move around can sit for 60 minutes to maybe an 1 1/2 hours. He can walk for about 60 minutes before having to rest. He has significant interference with his daily activities. He has difficulty with heavy lifting which exacerbates his pain for several days afterwards. He is able to do most of the simple activities of daily living. He is able to cook has some discomfort when hanging out the washing, has some difficulty doing the vacuuming and gardening. He is able to work in the toolshed doing some light welding for up to 2-3 hours at a time. He doesn't have any other regular leisure activities. At present he relies on alcohol to dull the pain. He usually drinks alcohol until he is pain free at night to go to sleep. At present he is drinking about 4 litres of wine per day and has been doing so for at least the last 5 years. He takes Mesyndol Forte Day Strength on occasions, very rarely when he has to undertake activities where he has a clearer head rather than associate with his alcohol (sic) intake. He doesn't like to take Feldene because of potential GIT side effects. In the past has taken 20mg on a p.r.n. basis which helps for 5-6 hours by about 50%. Amitriptyline 50mg helps him sleep but makes him feel quite dopey for about 24-248 hours. Doses less than 50mg havn't helped him but he has only every taken this on a p.r.n. basis and never on a regular basis. Narcotic analgesics also cause CNS side affects and do help his symptoms but he is reluctant to take these on a regular basis. His alcohol intake has caused problems with a DUI charge in 2004. At present he doesn't wish to drive until his alchol requirements have been markedly reduced. At present he also feels his left shoulder and left hand significantly interfere with his ability to control a manual vehicle. ... On examination he is obese. Back movements were markedly restriced (sic) and extension and quadrant positions and lateral flexion to 20% of normal. He has paravertebral muscle spasm and loss of lower lumbar lordosis. Neck movements were restricted to 60% of normal. Extension quadrant position produce posterior cervical discomfort without radiation of pain to either arm. He has generalised discomfort to palpation, the paravertebral muscle and over the lumbar vertebrae. Neurological examination reveals risk symmetrical reflexes in both lower limbs. Power is entirely normal within his pain tolerance. He has dysathesia (sic) over the left L5 distribution of his left leg. Upper limb examination revealed no sensory changes and no power changes. He has a decreased grip strength of the left hand attributable to pain in the left thumb and index finger. Left shoulder examination reveals pain in abduction with a painful arc betweeb (sic) 80 and 120 degress (sic), he has a positive impingement sign and resisted abduction and resisted external rotation both reproduced shouldern (sic) pain. He has positive Finklestein's test of the left hand. Resisted thumb abduction also causes mild discomfort. He has pain with pinch grip. There is localised discomfort with mobilisation of the 1st and 2nd MCP joint. There is no localised synovitis, there is no definite dactylitis. There are no nail, scalp or skin changes or psoriasis. ... In summary, this gentleman has chronic regional pain syndrome of the low back related to work injuries and subsequent motor vehicle accident. He has persistent chronic pain with referred pain into either right or left leg. He has dysathesia (sic) but no definitive neurological sign suggestive of nerve root entrapment. In addition to this he has chronic left shoulder pain with features suggestive of impingement syndrome or rotator cuff tear and secondary cervicobrachial irritation. With regard to his left hand symptoms (sic) he may have de Quervains tenosynovitis and extensor tenosynovitis of the index finger. He may just have a regional pain syndrome. He has had significant problems over the years and associated with blame for the cause of his symptoms, lack of support and perceived lack of support from both workplace, doctors and rehabilitation systems and social systems. He has a distrust of medications and has his own clear ideas about what he can and can't achieve. He wishes to determine whether there is any structural interventions which are likely to help him. If so he would wish to pursue a surgical approach provided this has a significant chance of helping. I feel there is a significant possibility that this may be achieved for his left shoulder if he has a rotator cuff tear and his left hand if he has evidence of de Quervains tenosynovitis. I am less optimistic that there will be any definitive intervention for his chronic back pain. I have taken the liberty of organising repeat MRI scans of lumbar spine and left shoulder as well as an ultrasound of the left hand looking for evidence of de Quervains tenosynovitis and extensor tenosynovitis of the index finger. I plan to review him with the results of these scans and then determine with him his best treatment options whether surgical or medical and what he can realistically expect in the longer term." 169There was no evidence that further took up, linked or explained the matters referred to in the last paragraph of the preceding quotation from Dr Shenstone's report concerning that planned review of the plaintiff, and the events that led to the plaintiff's subsequent cervical fusion surgery. 170On 25 January 2011, the plaintiff's neck was operated upon at Concord Hospital by an orthopaedic surgeon, Dr Saeed Kohan. The procedure was an anterior C6/7 discectomy, nerve root decompression and cage cervical fusion. The indication for that operation was the plaintiff's left arm pain due to cervical nerve compression. Dr Kohan did not provide a detailed report of his findings in the lead-up to the decision to operate on the plaintiff's cervical spine. After he was requested to provide a report, Dr Kohan suggested that the plaintiff's solicitor seek such details from Concord Hospital: Exhibit "G". There was some documentary evidence concerning the plaintiff's alcohol withdrawal on the day of the operation and for the following day, and then on 28 January 2011: Exhibit "5". There appears to have also been a withdrawal assessment on 14 December 2010 when it was hoped the plaintiff's operation would proceed, although it did not. The full circumstances of those matters were not explored in detail at the second phase of the hearing. 171The discharge summary from Concord Hospital, which provided only limited information, was tendered as part of Exhibit "L". It referred to the plaintiff having ceased Clexane on the morning of the operation, and then recommencing it on 27 January 2011. The procedure itself and the recovery from the procedure were uneventful. The plaintiff was discharged with medications and for follow-up by his general practitioner one week later and by the registrar in the hospital clinic 6-8 weeks later: Exhibit "1', page 13. 172No evidence was tendered to indicate whether such follow-up consultations had in fact occurred and if so, with what results. 173On 1 February 2012, at the request of the solicitor for the defendants, the plaintiff was examined by Professor Richard Mattick, a consultant forensic psychologist. In his 23 page report of the same date, Professor Mattick referred to his review of "approximately 600 pages of documents" relating to the plaintiff, which had been sent to him for the preparation of his report. Those 600 odd pages of documents were not identified. 174The entire materials tendered in evidence, including the transcript of the first phase of the hearing, were not of that order of bulk, and it remains unclear as to what was in fact given to Professor Mattick for his review, and as to what reliance he had placed on particular aspects of those unidentified materials.

Analysis of relevant medical and allied opinions 175It is convenient to first assess the reports relied upon by the defendants that are critical of the damages case the plaintiff seeks to make, namely the reports of Dr Cummine, Dr Potter and Professor Mattick. 176In his first report, in 2004, Dr Cummine suggested that the soft tissue injuries the plaintiff sustained to his neck and back would have recovered after about 3 months following the accident. When preparing his first report, Dr Cummine did not have available to him any imaging studies of the plaintiff's cervical spine. In that first report, Dr Cummine stated that it was unlikely the accident was at that time causing the plaintiff any of the symptoms or disabilities, and he stated that he expected no late complications to arise for the plaintiff from those soft tissue injuries. 177In his second report, in 2008, Dr Cummine had access to a CT scan of the plaintiff's cervical spine, which he noted as having been reported to be normal, whereas his own interpretation was that there was evidence of in-situ degenerative disc disease of mild severity in the plaintiff's cervical spine. In that second report, Dr Cummine stated that he did not think any of the plaintiff's continuing disabilities at that time were related to the motor vehicle accident. 178I find those opinions of Dr Cummine unpersuasive because they lack cogent and specific supporting reasons, as is required by UCPR Sch 7, cl 5(a). Instead, in my assessment, they appear to comprise sweeping statements unsupported by adequate reasons as is required by the Expert Witness Code. 179Dr Cummine seems to have invoked the entity of abnormal illness behaviour, a labile personality and expressed anger, as possible explanations for the plaintiff's ongoing symptoms. In my view, that analysis should not be seen as being definitive or persuasive because of the absence from his analysis of any detailed consideration or allowance for psychological factors that were obviously present and which have been the subject of more authoritative comment and analysis by other experts more qualified to express opinions on such matters. 180I therefore do not see Dr Cummine's opinions, which have in any event not been borne out by the subsequent event of the plaintiff's accident-related need for cervical fusion surgery, as being a reliable guide to the assessment of the nature and extent of the plaintiff's post-injury problems. 181In relation to the psychiatric opinion of Dr Potter dated 13 March 2007, I do not consider his opinion to be a reliable guide to the assessment of the plaintiff's psychiatric condition. This is because he made it clear that his examination was marred by the plaintiff's level of alcohol intake before and during the consultation. Furthermore, Dr Potter's opinion has been overtaken by events, and is based on a single consultation on a limited understanding and evaluation of the plaintiff's situation. 182For example, I do not accept Dr Potter's simplistic statement at page 11 of his report to the effect that it is unlikely the accident contributed to the plaintiff's current alcohol abuse. That formulation is unaccompanied by cogent reasons as required by UCPR Sch 7, cl 5(c). That statement is also in conflict with what I consider to be the more reasoned and informed psychiatric analysis that came later, to the effect that the accident has exacerbated the plaintiff's dependence upon alcohol. I consider this to be a more likely explanation having regard to the unchallenged evidence of Dr Parmegiani, and the other factual evidence that I have accepted to the effect that the plaintiff only drank alcohol at weekends in the period prior to the accident, and it was the accident and its effects that had set the plaintiff along the path of inability to cope with his pain, and of feeling the need to use alcohol as a means of pain control. 183It is significant that Dr Potter's analysis did not discuss in any detail the relationship between the plaintiff's considerable experience of accident-related pain and his resort to alcohol in order to cope with his pain. 184On one level of analysis, this omission is not surprising because of the unsatisfactory nature of the plaintiff's consultation with Dr Potter due to the plaintiff having consumed alcohol before and during the consultation with Dr Potter. This must have been a significantly distracting feature of the consultation for Dr Potter, hence his description that his assessment was unreliable and his conclusions needed to be approached with caution. 185On another level of analysis, the absence of any discussion by Dr Potter of the role of pain in the plaintiff's use of excessive amounts of alcohol is difficult to understand. This is especially so given that he had been given a copy of the psychiatric report of Dr Parmegiani dated 20 December 2005, and the statement of reasons of the psychiatrist Dr Moore, dated 31 August 2006. 186Dr Parmegiani had expressed the opinion that the accident in question led to a relapse of the plaintiff's harmful drinking. Dr Potter did not differentially engage with that opinion when providing his own opinion, notwithstanding that it did not coincide with his own analysis. In my view this indicates that Dr Potter's analysis remained incomplete and should not be relied upon, as he himself indicated. 187Dr Moore expressed the opinion that the recurrence of the plaintiff's alcohol dependence was a mal-adaptive means of the plaintiff coping with various stressors. Given that the subject accident and its effect on the plaintiff was on any reasonable view, a significant stressor in his life, it is difficult to understand why Dr Potter did not touch upon and discuss that view in some way, differentially or otherwise, when setting out his own analysis. 188Also of significance is the fact that Dr Potter had been provided with a copy of the report of Dr Conrad dated 24 November 2004, in which the physical basis for the plaintiff's complaints of pain has been plainly laid out, yet this was not the subject of any consideration by Dr Potter in his analysis. 189Although to a degree speculative, it is likely that Dr Potter's consultation with the plaintiff was so marred and distracted by the plaintiff's acute and excessive alcohol intake, as was stated by Dr Potter, that no useful evaluation of the plaintiff could be undertaken at that time. 190For the above reasons I do not accept as valid, the views expressed by Dr Potter in his report dated 13 March 2007 concerning the stated unlikelihood of a contributory relationship between the subject accident and the plaintiff's alcohol abuse. Instead, I prefer the reasoned and tested views of Dr Parmegiani to the contrary on that subject. 191In very large measure, the views expressed in the reports of Dr Cummine and Dr Potter have been overtaken by historical events and the preponderance of other medical opinions that I consider to be more reliable. 192It is necessary to examine the competing views of the clinical psychologists. 193In my view, the products of the consultation with Professor Mattick must also be the subject of some doubt. This is because Professor Mattick described his observation of the plaintiff drinking Scotch whisky from the outset of the consultation, and because of the plaintiff's inability to respond to some questions asked at the interview, having consumed considerable quantities of alcohol from 3.00am onwards on the day of the assessment, the consultation starting at about 2.00pm, and because as a result, a restricted range of tests were administered by Professor Mattick: Exhibit "7", paragraphs 2.2; 3.1; 4.14.4; 6.5.1; 6.6.6; 11.4; 12.6; 12.9; 13.13; 13.14; 13.15; 13.16; 13.26.4, and 13.21. 194In my view, the report of Professor Mattick provides little assistance in assessing the issues in the case because his opinions were qualified by a lack of opportunity to carry out the testing he would have preferred to have administered, and because he felt he was unable to rely upon the accuracy of the information he had been given concerning the wellbeing of the plaintiff, both before the accident, and at the time of his examination of the plaintiff: Exhibit "7", paragraphs 13.25.2 and 13.25.10. 195It is not clear from the comments of Professor Mattick, and it is therefore opaque to analysis, as to whether he was referring to the large volume of material he had been given when making the observations he recorded in relation to the plaintiff's circumstances. Furthermore, the wording of the 10 questions raised by the solicitor for the defendants with Professor Mattick, and to which Professor Mattick appears to have addressed at paragraph 13.25 of his report, was not in evidence. This makes it difficult to evaluate the responsiveness and underlying reasoning of the conclusions within the answers that Professor Mattick has provided to those questions. 196The opposing reports of the forensic psychologists have approached the matter of assessing the likelihood and extent of the plaintiff's brain damage from different perspectives. 197On the one hand, Mr Fathers adjusted his psychological interview and testing of the plaintiff to accommodate the less than ideal circumstances of the interview setting due to the plaintiff's alcohol intake, and made observations accordingly. He concluded and accepted that the plaintiff had neuropsychological defects that were to some extent related to his emotional state, especially his chronic depression, in the context of the plaintiff's personal reversals that followed the subject motor vehicle accident, leading to his descent into alcohol abuse. 198On the other hand, Professor Mattick, who was also confronted with similar less than ideal testing circumstances, did not believe that there was any clear evidence of significant alcohol-caused cognitive impairment from chronic alcohol abuse: Exhibit "7", paragraph 13.26.3. 199In resolving the issue of whether or not the plaintiff has alcohol related brain damage, I consider that the qualified medical evidence provides more useful insight and guidance on that issue compared to the limited results of psychological testing and the related impressions of the psychologists. 200In that regard, Professor Mattick seems to have sought some empirical diagnostic result as a basis for expressing an opinion. Understandable as that approach may be from the perspective of Professor Mattick's discipline, that is not the only available approach to the problem, given the limitations identified on psychological test results. 201In Dr Parmegiani's clinical judgment on reviewing the historical facts, concerning the plaintiff's alcohol use, he considered it probable that the plaintiff had alcohol related brain damage, and he applied his medical and physiological understanding and knowledge of the effects of alcohol on the brain to reach that conclusion, which was open to him on the exposure he had to the plaintiff. That conclusion was not contradicted by other medical evidence, instead, it was to an extent confirmed by the remarks within the MAS assessment reports of Dr Moore and Dr McClure, and to a degree, by Dr Fitzsimons, as well as in the psychological opinion of Mr Fathers. Furthermore, those opinions were each expressed on rational bases. 202In considering those two bodies of competing evidence, the rational expert opinions of the latter group of experts persuade me to find that I should accept the preponderance of their evidence in preference to the contrary, qualified and incomplete opinion of Professor Mattick. This is especially so where the opinion of Professor Mattick was qualified by unexplained, subjective terminology such as the absence of "clear evidence" and "significant alcohol-caused cognitive impairment". These are statements of doubts held by Professor Mattick, not negation. 203I am reinforced in the view that Professor Mattick's report was incomplete having regard to his statement that he expressed interest in being shown the psychiatric opinion of Dr Moore, which suggests he was seeking medical input into the formulation of a concluded opinion. Given that Professor Mattick had been given some 600 odd pages of materials to consider, it seems odd that those materials did not also include the report of Dr Moore: Exhibit "7", paragraph 13.3. 204Furthermore, Professor Mattick appears to have based his views, at least in part, on an incorrect understanding of the nature and extent of the plaintiff's domestic situation and pain problems, stating, at paragraph 13.4 of his report, that the plaintiff "had significant [undifferentiated] vertebral dysfunction and associated pain prior to the accident in question and had not worked for many years". 205That statement within the analysis of Professor Mattick was necessarily a superficial one, containing far less relevant detail compared to the detailed evidence available for my assessment in these proceedings. The evidence available for my consideration in these proceedings included the reasons for the plaintiff's unemployment at the time of the accident, the significant steps he was taking to enter into his own water carting business, and the fact that his pre-accident "vertebral dysfunction" and "associated pain" were not by themselves factors that precluded the plaintiff from functioning and exercising an earning capacity before the subject accident. 206In my view, Professor Mattick's assessment of the plaintiff has not recognised the full extent or enormity of the adverse impact the subject accident has had on the plaintiff, who was vulnerable to experiencing setback due to his reactions to the previous adversity of his marital circumstances. The impact of the subject accident was in the form of a setback to his goal of working in an industry he reasonably believed he could cope with. The plaintiff's subsequent descent into alcohol abuse has to be seen and understood in that light. 207I therefore do not accept the conclusion of Professor Mattick to the effect that the findings and conclusions of Mr Fathers cannot be accepted as evidence of chronic and permanent impairment of the plaintiff's brain function as stated in Exhibit "7", at paragraph 13.26.5. I have come to this conclusion because of the uncontradicted medical explanations provided by Dr Parmegiani to the contrary of that view, where Dr Parmegiani's explanations were not inherently improbable. 208Instead, the real question on the issue of whether the plaintiff has brain damage due to his alcohol intake, is the degree of such damage, not whether in fact brain damage has already occurred: Dr Parmegiani, Day 2, T40.15.

Findings on injuries 209Having reviewed the evidence of the plaintiff as well as the summarised medical opinions referred to in the preceding paragraphs [175], and [208], I find that in the subject accident, the plaintiff suffered the injuries he has claimed. 210I am satisfied that at the time of the accident, when the airbags were deployed in his vehicle, the plaintiff suffered facial injuries consisting of minor laceration to the lower lip and some chipped and fractured teeth, as described by MAS Assessor Nichols and by Dr Chung. 211I am also satisfied that in the events immediately before the collision, the plaintiff had placed his left arm and hand out to his left in an instinctive attempt to protect his girlfriend, who was his front seat passenger at the time. The resultant impact, including with the deployed air bag and the dashboard, caused the plaintiff to suffer soft tissue musculo-ligamentous injury to his left hand, left wrist, index finger and left shoulder, which had given him some episodic trouble in the past. He also sustained a seat belt injury to the sternum of his chest, which quickly resolved without lasting effect. 212I also find that the force of the collision between the two impacting vehicles caused the plaintiff to suffer soft tissue injuries to his cervical spine and across the back of his shoulders, as well as to his thoracic spine and his lower lumbar spine. 213The force of the injuries to the plaintiff's neck and lower back operated to aggravate pre-existing degenerative changes to those areas of the plaintiff's spine. In the case of the neck, the effect was to produce symptoms of altered sensation in the plaintiff's upper limbs. In the case of the plaintiff's lower back injury, the force of the impact of the collision resulted in a significant aggravating injury to the plaintiff's lumbosacral spine in the same area where he already had an underlying injury and disability. I accept the evidence of the plaintiff that the aggravation was a significant one. I also accept the opinion of Dr Conrad that the aggravation injury to the lower back was substantial, and that this aggravation has ongoing effects. 214In the collision, the plaintiff also suffered a contusion of the right knee and some minor scarring to the right thigh, as was documented by the MAS assessment process.

Findings on disabilities 215The accident related injuries outlined in the preceding paragraphs have caused the plaintiff to suffer ongoing disabilities of a physical and psychological nature, the latter being a function of the former.

Teeth 216The damage to the plaintiff's teeth has caused him difficulty with his mastication, as has been commented upon by MAS Assessor Nichols. The plaintiff did not seek to place emphasis on the relatively minor scarring to his lower lip. The delays in having the damage to his teeth addressed through timely restorative treatment have exacerbated the nature of the problem. As a result he has suffered dental infections and this has led him to have one tooth extracted, thus making further restoration work more difficult and expensive than when it was first recommended, as prosthetic implants are now required.

Cervical spine 217The plaintiff experiences pain, stiffness, discomfort and restriction of movement and discomfort in his neck, in the presence of aggravated degenerative changes in his cervical spine, with referred pain. This was due to the substantial whiplash injury described by Dr Conrad. Those degenerative changes were not reported to be present at the time the plaintiff's neck was the subject of investigatory imaging at Liverpool Hospital. Years later, Dr Kerecz described this injury as an exacerbation of cervical spondylosis. 218The plaintiff's restricted neck movements are now also influenced by the anterior cervical fusion procedure he was required to undergo at the level C6/7 as a direct result of the subject accident, and for which he has had some residual surgical scarring to his neck. The plaintiff also experiences referred occipital headaches associated with his neck disability. He has some numbness and paraesthesia in the axilliary aspects of both arms and paraesthesia of both hands, and neck pain radiating into both shoulders in the suprascapular region, mainly on the left.

Left hand and wrist 219The plaintiff has pain in the left hand and wrist, and in the middle and index fingers. These were thought to have been due to some form of musculoligamentous injury including to the second metacarpo-phalangeal joint and extensor tendon saggital bands, causing clicking in that joint, which was not investigated because of the decision of the CTP insurer not to fund the investigations recommended by the treating hand surgeons. As a result, the plaintiff has been left with weakness, reduced grip strength and dexterity in his left hand. This causes the plaintiff to drop objects.

Shoulders 220The plaintiff has had an exacerbation of a pre-existing rotator cuff syndrome to his left shoulder in the form of a substantial shoulder strain, as documented by Dr Kerecz and Dr Conrad. He has occasional ongoing symptoms of ache and discomfort from this problem. The clinical records of Dr Kerecz show that the pre-accident episode of left shoulder problems had settled before the subject accident, with the injection of steroid into the left shoulder. The plaintiff now has difficulty lifting his left arm above his shoulder, with pain and loss of strength in the right and left shoulders.

Thoracic spine 221The plaintiff experiences pain and discomfort in the upper thoracic spine and across the back of the shoulders at the base of the neck.

Lumbosacral spine 222The plaintiff experiences constant and significant pain or aching in his lumbosacral spine, as identified by both Dr Conrad and Dr Bye. This is an aggravation of the pre-existing disc condition that was present in that area before the subject accident. He now has radiation of pain from his lumbar spine into his lower limbs in the form of ongoing sciatica that varies from his left to his right leg. His back pain limits his movements and his capacity to lift, bend and carry. His ability to stand on hard surfaces for prolonged periods has also become reduced. 223The plaintiff also experiences some pains and stiffness in his right knee which causes difficulty negotiating stairs, and difficulty with squatting or kneeling activities. It is unclear on the evidence as to whether this is a function of the referred pain from his lower back or as a result of the contusion that he suffered to his right knee in the accident. Dr Kerecz has described this latter problem as arthrosis of the right knee. 224The fact that the plaintiff had previous problems with his lower back does not absolve the defendants of responsibility in damages for aggravation injury to that area where that aggravation would not have occurred without the negligence of the defendants: s 5D of the Civil Liability Act 2002. In that regard, the defendants must take the plaintiff as he is found, including vulnerability to an aggravation injury: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], page 406.

Psychological consequences and pain management issues 225The plaintiff's experience of ongoing severe pain in the areas affected by the accident interferes with his sleep and he uses alcohol to control his pain. 226The plaintiff suffers ongoing anxiety and depression as a result of the accident. Dr Parmegiani has aptly described this as an adjustment disorder with mixed anxiety and depressed mood due to increasing post-accident despondency. These matters, together with the plaintiff's substantial use of alcohol for pain relief have resulted in a reinstatement of the plaintiff's previous alcohol dependency and abuse. This adversely affects his mood and his sleep as well. The depression experienced by the plaintiff is also in part reactive to his experience of pain from his various disabilities. He has also experienced weight gain due to stress eating. This is a cyclical problem for the plaintiff. 227Before the subject accident he had reduced and controlled use of alcohol and had restricted his drinking of alcohol to weekends as he was preparing to enter into self-employment. 228The accident has set the plaintiff back in that enterprise because of a cascading interaction of physical pain, reactive psychological factors and a relapse into alcohol dependency and abuse as the plaintiff turned to alcohol for pain relief. In my view, on the evidence, the substantial difference between the plaintiff's pre and post-accident alcohol use was aptly described by Dr McClure in the ratio 7:1, where 1 referred to the pre-accident situation. On any reasonable view, that is the marker of a material change caused by the effects of the subject accident. 229The alcohol abuse involves the plaintiff drinking at what has been described as highly hazardous levels, and has led to a degree of probable brain damage, markedly reduced motivation, emotional lability, social withdrawal, and an overall miserable existence in which the plaintiff drinks alcohol on waking and over the course of the day as a mal-adaptive means of coping with his stressors, including his experience of significant accident-related pain. 230In the plaintiff's words, as quoted by Dr Potter, and which I accept, all the plaintiff's plans for his future, his relationship, his proposed business, came to "a crushing halt because of the accident".

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.

Assessment of damages 308In the paragraphs that follow, after identifying the plaintiff's probable life span for the purpose of a damages assessment, I set out my assessment of the claimed heads of damage.

Probable life span of plaintiff 309The medical evidence concerning the plaintiff's health history suggests that the undiscounted statistical median life tables are not an appropriate measure of the plaintiff's probable life span in this case. This is because he must continue with life long haematological treatment and surveillance concerning his necessary anticoagulant therapy aimed at avoiding pulmonary emboli in circumstances where, due to his alcohol intake, he is unable to take Warfarin, the preferred medication of choice for that condition. 310Then there is the additional matter of the plaintiff's continuing alcohol consumption at hazardous levels, with uncertainty as to whether treatment aimed at breaking his alcohol addiction would be successful in the short or long term. This represents a well-recognised risk in the community for accidental mishap, injury and other adverse health consequences. 311Those matters suggest that in the plaintiff's circumstances, the usual statistical median estimation of life span may not be the appropriate measure to be adopted for the purpose of projection of future losses. 312At age 54 years, the plaintiff has a probable median statistical life span of 31.47 remaining years. That actuarial calculation has incorporated within it the data of communal experience of his cohort for early mortality due to illnesses and accidents of all kinds. Although not the subject of expert evidence, commonsense dictates that some additional discount should be applied to the median estimate in this case for the factors identified above, but not too high a discount, as this may have the effect of an impermissible double discount. 313Absent expert evidence on the issue, but acknowledging those principles, I consider that a discount of 20 per cent should nevertheless be applied to the statistical median figure. This yields a rounded discounted life span estimate of a further 25 years. 314The 5 per cent multiplier for 25 years is 753.6. This is relevant to the claims for future treatment and future domestic assistance. The claim for future economic loss is not affected by the assessment of a probable reduced life span estimate.

Non-economic loss 315On behalf of the plaintiff, at the 2009 hearing, it was initially submitted that the plaintiff's damages for non-economic loss should be awarded in the amount of $250,000. At the resumed hearing in 2013, that submission was revised upwards to $350,000 having regard to the plaintiff's cervical fusion in 2011 and further medical information. In contrast, on behalf of the defendants, it was submitted that damages for non-economic loss should be assessed in the amount of $100,000. 316In assessing the plaintiff's claim for damages for non-economic loss I have referred to the matters set out in paragraphs [69] to [307] above, particularly the plaintiff's continuing disabilities referred to at paragraphs [215] to [230] above. Those matters, which need not be repeated here other than in the following summary form, continue to have a permanent and significant adverse impact on the plaintiff's normal amenity of life and wellbeing. 317The plaintiff's physical injuries comprised soft tissue injuries to his cervical, thoracic and lumbar spines, as well as to his left shoulder, left hand and right knee. He has also suffered damaged teeth. Those injuries have caused him to suffer continued pain in the affected areas of his spine with pain in the left shoulder, left hand and wrist. His dental problems have led to mastication difficulties and as a result he needs urgent and extensive dental treatment. He experiences headaches, difficulty sleeping due to pain, and requires considerable pain relief. Those problems have led to reinstatement of his dependence on the excessive and hazardous use of alcohol to seek pain relief. 318The emotional sequelae of the plaintiff's injuries has resulted in him having to endure an isolated and miserable existence characterised by pain, depression, anxiety, emotional lability, amotivation, alcohol dependence and a sense of hopelessness and resignation. 319These matters have had a significant deleterious effect on the amenity and enjoyment of the plaintiff's life. He is fixed in the past, he ruminates over past grievances and what he sees as the loss of 10 years of his working life, and is upset over what he sees as the changed prospects of his children as a result of his changed circumstances and prospects brought about by the accident. All of this causes him to suffer significant emotional turmoil. 320Having due regard to those matters, and recognising the difficulty of assessing damages for emotional distress and relapse into alcohol dependence, I consider that the appropriate assessment of the plaintiff's entitlement to damages for non-economic loss should be $250,000. I therefore award the plaintiff damages for non-economic loss in the assessed amount of $250,000.

Past economic loss 321On behalf of the plaintiff, it was initially submitted that damages for past economic loss should be awarded in the amount of $468,000, comprising an amount of $1500 net per week over 6 years. In the plaintiff's revised submissions presented on the final day of the hearing on 31 July 2013, that submission was increased to $793,500, being the calculation of $1500 per week net over 529 weeks to the conclusion of the proceedings. 322In contrast, on behalf of the defendants, it was submitted that the appropriate sum to be awarded for past economic loss was a buffer amount of $25,000 inclusive of superannuation. The defendants' submission was based upon an acceptance of the submitted proposition that the plaintiff had unreasonably failed to mitigate his claimed loss of earnings. 323For the reasons already outlined at paragraphs [231] to [307] above, I have not accepted the defendants' mitigation argument to that effect with regard to his alcohol intake issues. I shall shortly return to further consider the mitigation issue in respect of whether the plaintiff has a residual earning capacity. 324In assessing the plaintiff's claim for past economic loss, and before addressing quantification of the claimed loss, it is instructive to examine the medical opinions tendered in the proceedings in order to identify a basis for that claim. There are three bodies of such opinions. First, there are opinions from the MAS assessors. Secondly, there are opinions from the experts retained on behalf of the plaintiff, and thirdly, there are the opinions obtained on behalf of the defendants. 325The reports of the MAS assessors are largely non-contributory to the analysis as they were principally concerned with measuring the plaintiff's injury-related disability according to the statistical instruments required under the MAC Act scheme. In the paragraphs that follow, the salient medical opinions that touch upon the economic loss issue are examined. 326The relevant starting point of the analysis of the medical reports in respect of the economic loss claim is the opinion of Dr Kerecz. He was in a significant position of advantage as the plaintiff's treating general practitioner over many years and well before the subject accident. In my view, Dr Kerecz identified the relevant baseline for the analysis at page 4 of his report, namely his view that the plaintiff was considerably disabled before the subject accident, and was already struggling, and the further adversity of the accident and its effects, including both the physical and the psychological effects, operated significantly in the plaintiff's circumstances, compared to someone who had been fit. 327In my view, that insight was in keeping and consistent with the plaintiff's own assessment, which was to the effect that the deleterious effects of the accident had resulted in setback to his plans for future employment. That analysis has to be read in conjunction with the other opinions. 328Dr Lyons noted the history of the plaintiff having knocked and injured his left hand against the dashboard whilst attempting to protect his passenger during the events of the collision. The plaintiff has thereafter continued to consistently complain of pain in his left index finger, hand and wrist, the cause of which remains formally undiagnosed because the CTP insurer has declined to pay for the MRI investigation as recommended by Dr Lyons and Dr Yee. This continuing uncertainty must be a relevant factor impacting upon the plaintiff's physical ability to exercise a manually oriented earning capacity. I have already found that the relationship between the accident as described by the plaintiff and the onset of the plaintiff's left hand problems is sufficient to establish a relevant causal connection. 329The evidence of the plaintiff as to his pre-accident skill sets reveals these were essentially for manual work. Therefore, a hand disability, even of a non-dominant left hand, is an impairment of some significance to a manual worker's ability to exercise an earning capacity in an unrestricted manner. 330In March 2007 Dr Potter advised the CTP insurer that from the psychiatric perspective, he thought it would be unwise for the plaintiff to undertake any work in his chronic intoxicated state, which was then evident and which I find still continues. Dr Potter also expressed a guarded prognosis for the plaintiff without a detoxification programme and rehabilitation. 331In his reports dated 3 February 2011 and 25 July 2011, following neuropsychological testing, Mr Fathers considered that the plaintiff exhibited neuropsychological deficits related to his emotional state and poor psychological adjustment since the 2003 accident, leading to a descent into alcohol abuse. Mr Fathers considered the plaintiff exhibited signs of cerebral dysfunction or brain damage and changes in brain function attributable to alcohol use. 332Those assessments, against a background of the plaintiff trying to set himself up in a business and having experienced what he reasonably considered to have been a significant setback and change in his circumstances due to the accident, did not augur well for the plaintiff to exercise any meaningful form of earning capacity. 333The effect of Dr Conrad's successive reports between 2005 and 2012 was that the plaintiff was not fit for the full work of a truck driver, although he thought the plaintiff may be fit for part-time work of a light nature with restrictions on his required duties, but with a substantial curtailment in his future working life. In his last report dated 22 August 2012, Dr Conrad concluded the plaintiff was totally unfit for work due to his left shoulder, left hand and neck problems, and aggravation of the previous lower back problems. 334Dr Parmegiani's first report in 2005 indicated the plaintiff was not fit to undertake the work of a truck driver or for full time gainful employment due to his harmful drinking. In his second report in 2009, Dr Parmegiani considered the plaintiff was unable to work for more than a few days at a time because of his physical limitations and from a psychiatric viewpoint, he suggested the plaintiff would have difficulty working more than 20 hours per week, with the qualification that continued drinking will cause the plaintiff to suffer a complete loss of earning capacity. That opinion did not venture into practical aspects of placing the plaintiff in employment of that kind. 335In his oral evidence given in 2009, Dr Parmegiani pointed to the focus of the plaintiff's life having become his alcohol intake in the context of his need for pain relief, leading to lack of motivation for doing anything else, and reduced employability, especially as it would be physiologically and psychologically difficult for the plaintiff to give up drinking again, and then there is the question of the extent of alcohol-related brain damage. 336When Dr Cummine examined the plaintiff in October 2004, he considered that the plaintiff was fit to return to the Government programme in which he was enrolled, with a view to running his own business driving a water tanker. That opinion was expressed in response to an unidentified question from the defendants' solicitor presumably seeking Dr Cummine's views on the plaintiff's work capacity at that time. In his second report issued in 2008, Dr Cummine reiterated his earlier expressed view that the plaintiff was not incapacitated for work. Those views of Dr Cummine were based on his stated assessment that the plaintiff ought to have recovered from his soft tissue injuries after 3 months, a view I have not accepted. 337In his subsequent report dated 23 January 2012, Dr Cummine expressed the opinion that it was highly likely the plaintiff was capable of "all forms of employment without restriction". In examining that opinion of Dr Cummine I could not find any direct or satisfactory reasoning that would support that generalised statement: UCPR, Sch 7, cl 5(a). 338In further analysing that report from Dr Cummine, it is not entirely clear, but it seems that he has based that cited opinion upon his observation of the presence of skin changes on both of the plaintiff's hands, which were seen previously, presumably being the observed calluses and ingrained grease and dirt, and possibly the presence of abnormal illness behaviour he had described. At paragraphs [46] to [52] of my reasons I have not accepted Dr Cummine's views in that regard on considerations of procedural fairness. 339When Professor Mattick assessed the plaintiff on 1 February 2012, at paragraph 13.25.5 of his report of the same date, he expressed his opinion that the plaintiff was incapacitated for work because of his alcohol consumption. 340In my view, the preponderance of the medical evidence confirms the position that on a consideration of both physical and psychological factors, including the plaintiff's level of alcohol consumption, the plaintiff's capacity for work has been significantly impaired by the effects of the subject accident. I find that since the accident such impairment has kept the plaintiff from completing his NEIS course and from being able to exercise his earning capacity in a sustained way following the accident, rendering him largely unemployable, including as a water carter. 341In the 8 years or so from the time of the subject accident in 2003, and the time of the cervical fusion in 2011, the plaintiff had not derived any significant mitigatory earnings. On the medical evidence that I have outlined in the preceding paragraphs, this is understandable, as he was simply unfit for work due to a combination of factors regarding his experience of pain, his psychological state, and his heavy use of alcohol. 342In the period between the 2011 surgery to his cervical spine and the resumed hearing in 2013, the plaintiff has derived some minor income in the aggregated amount of about $2000 doing light odd time saving tasks for a friend who worked as a handyman. He described those tasks as a "general dog's body gofer" over the course of unconnected days including half-days, totalling about 20 days in all, at about $100 per day. That work is unlikely to be available in the future as that friend has applied to work on mine machinery: Day 4, T10.35 to T11.34. 343The mitigatory income derived by the plaintiff and amounting to about $2000 must be set-off from his claim for loss of earning capacity. From the plaintiff's description of that work, when viewed against his disabilities, it seems very unlikely that he would have been in a position of doing more sustained work in mitigation of his loss of earning capacity, especially having regard to his need for painkilling medication and his resort to, and dependence upon, alcohol for pain relief: Day 4, T23.27; T24.44. 344I now turn to consider the question of the appropriate method by which to quantify the past impairment of the plaintiff's earning capacity. 345In some cases where there is uncertainty over the level of pre-injury earnings or an absence of a relevant earnings history, courts have often found it appropriate to have regard to published data for average weekly earnings when assessing claims for loss of earning capacity where precision was not possible: State of NSW v Gee (aka Michaels) [2002] NSWCA 326, at [35]; Rosniak v GIO [1997] 41 NSWLR 608, at pages 621F, 622B-E, 628E. In other cases, the equation of average weekly earnings with lost earning capacity has been seen as problematic: Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135. 346In this case, on the evidence, I consider it would be inappropriate to rely on average weekly earnings rates, for the reasons that follow. 347First, those rates were not relied upon by the parties and were not referred to in submissions. Secondly, the plaintiff had the well-founded intention of entering the water carting industry. Thirdly, he had a history of such work in the past, which indicated he had a relevant nexus and ability to do that work. Fourthly, he had taken significant preparatory steps to position himself to take up that work, including significant capital expenditure for the required plant and equipment for that work. In my view those matters, and the evidence of Mr Wilson to the effect of the general availability of that work, justify looking beyond average weekly earnings for an appropriate economic yardstick by which to measure the plaintiff's economic loss. 348At the hearings in 2009 and 2013, Mr Wilson was called as a witness to support the plaintiff's claim for economic loss. Mr Wilson had a number of business interests, including a water carting business which he operated on the outskirts of south-western Sydney. For many years he has continued to be successfully engaged in the water carting industry. It was clear from his evidence that the business of water carting, if well operated by an owner-driver, was profitable, with ample work available each year over the period since the plaintiff's accident, despite seasonal and climate factors. 349That work generally comprised filling domestic tanks, commercial water carting for construction sites, local government works, environmental works including tree watering, drought relief, fire-fighting and emergency call outs. 350Mr Wilson's profit and loss statements were tendered as evidence of the potential earnings of such a business: Exhibits "D", "N" and "P". Mr Wilson acknowledged that whilst there were a number of successful operators in the water carting industry, there were also some operators who had not been successful. His evidence as to how to operate such a business successfully did not suggest the work was overly complex or difficult for a person committed to the task. There were no material challenges to the evidence of Mr Wilson. I accept his evidence in its entirety. The real question that arises is what should be made of that evidence in this case. 351I do not consider that the evidence of Mr Wilson should be regarded as representing a precise comparable earnings benchmark demonstrating the amount of money the plaintiff could have derived as a water carter had he not been injured. 352Instead, I propose to treat that evidence as providing a general background to earnings in the industry, for the purpose of assessing the reasonableness of the claim by the plaintiff, that he could have derived earnings of the order of $1500 per week net in that industry had he not been injured. It is for that reason that I have not proceeded to undertake a detailed analysis of the financial materials that relate to Mr Wilson's water carting business. It is plain from a comparison of Mr Wilson's figures with the amount advanced by the plaintiff, that the sum of $1500 per week net seems to be a reasonable flat rate indication of an available earning capacity in that industry over the period of the plaintiff's claim for past loss of earning capacity. 353That said, without discount for various factors, such evidence does not translate to a basis for a simple projection of the sum of $1500 per week from the date of the accident to the date of the hearing. This is because there are a number of uncertainties in the nature of past adverse vicissitudes that need to be weighed and considered in any assessment of the plaintiff's economic loss claim spanning the 10-year period between 2003 and 2013. Those considerations are outlined in the following paragraphs. 354Although the plaintiff had invested significant sums of money in purchasing major items of plant and equipment for his proposed business, and although had previously worked in the industry as an employee of a water cater, he had not yet completed his NEIS programme at the time the accident occurred. Nor had he proceeded to establish the necessary business systems and administrative supports that would have been required to run a profitable business. As a result of those considerations, not only was the timing of the commencement of such a business by the plaintiff uncertain, but it was also uncertain as to whether his business contacts on whom he intended to rely for work were likely to quickly generate profitable work for him, or whether a significant lead-in time would have necessarily been involved before profitability could be established. 355Further, in a relatively competitive industry such as water carting, despite the demand for such services, it was not certain that the plaintiff would have necessarily succeeded in his chosen endeavours, notwithstanding his earnest efforts to that end. This must be so having regard to the fact that the plaintiff lacked a successful track record in self-employment, or recent sustained employment. 356Additionally, there are uncertainties that arise from the plaintiff's intrinsic circumstances. 357First, there is the matter of the plaintiff's vulnerable personality and his demonstrated underlying propensity to react poorly to adverse circumstances if things did not proceed as he had planned. Included in this consideration was the risk that he might relapse into excessive use of alcohol as a mal-adaptive means of coping with adversity. Secondly, there is uncertainty as to whether, after a long period of alcohol abuse following his marriage breakdown and divorce, the plaintiff would have had sufficient residual personal resources to call upon in order to equip himself to cope with the ongoing day-to-day demands of successfully running a business. Thirdly, there is the matter of the plaintiff's pre-existing lower back problems which, on the pre-accident medical evidence, would to some degree seem to have inevitably placed some limitations on his ability to perform arduous physical tasks without difficulty or interruption to his work. 358The first of those factors is a significant one in view of the possible frustrations of running a small business. The second of those factors is difficult to assess in view of Dr Parmegiani's evidence that alcohol abuse was difficult to treat, and carried with it the risk of potential loss of licence to drive vehicles, a matter essential to the plaintiff's business plan. However, against this there was the evidence that before the subject accident, the plaintiff had reduced his alcohol intake, and had persevered with his NEIS course, and was purposefully getting his plant and equipment organised for the proposed business, with a positive frame of mind. 359The third factor involving the plaintiff's lower back problem requires closer examination. The work of a water carter involved some physical strength and agility, including manipulating heavy water hydrants weighing 25kgs, or more if fitted with extra items of equipment, and heavy water hoses. These items would have to be regularly manipulated in a day's work when loading and discharging water in a water carting business. 360On the basis of the medical evidence which documented the plaintiff's long standing lower back problems that pre-dated the accident, particularly the already identified views of Dr Kerecz, there would have been a real concern as to whether the plaintiff would have been able to maintain an ability to cope with the heavier aspects of the work of water carting on a regular and repeated basis without aggravating the condition of his lower back, especially given the description by Mr Wilson that the work required physical fitness. Against those concerns is the unchallenged and not inherently improbable evidence of the plaintiff that he had relevant experience in the industry and believed the work to be within his capacity, and the unchallenged and not inherently improbable evidence of his daughter, who described him as having lifted weights of the order of 90kgs before the subject accident without apparent difficulty. 361When each of those matters are considered individually and together, it is plain that in different ways, the plaintiff's earning capacity in the period from the time of the accident until the resumed hearing requires some significant discounting on account of those factors involving uncertainty. This leads to the need to consider the most appropriate way in which to approach the assessment of that earning capacity and its loss. 362Given my acceptance of the proposition that the plaintiff's fortunes were on the rise in the period leading up to the accident, and given that he was engaging in purposeful actions over many months aimed at re-entering the workforce and the water carting industry in particular, I consider that pre-accident, the plaintiff should not be considered to be a person who was likely to remain unemployed in the long term, without prospects of employment. 363Instead, I find he had a capacity to work including as a water carter in the manner he planned, provided he paced himself reasonably in that work and did not place his vulnerable back at undue risk of aggravation injury. This is apparent from his experience and from the positive actions he had taken towards starting a business in that industry. That work is no longer open to the plaintiff as a result of his related injuries and disabilities, and as a result, he has sustained a loss of earning capacity that has resulted in financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. 364In approaching the tasks of assessment of that loss, I consider there should be an initial discount to reflect the reality that there may have been no earnings accruing to him from the proposed business for about the first 6 months or so following the accident, during which time the plaintiff would have continued on to complete his NEIS mentorship and set up his proposed business to an operational state. During that time, I consider it was very unlikely that the plaintiff would have earned significant income as a water carter. 365I consider that the plaintiff's most probable circumstances but for the accident would have been as described above, and this should be the approach taken to the assessment of both past and future loss of earning capacity, applied to the background figure of $1500 per week net: s 126 of the MAC Act. I consider this to be the case for the reasons that follow. 366Mr Wilson gave evidence that water carting work was in abundance: Day 2, T3.38. In 2009, the call-out rate was between $100 to $120: Day 2, T6.31. The work varied seasonally, depending on hot weather and bushfires. The figures identified by Mr Wilson showed water carters could earn high incomes which varied on account of such factors: Exhibits "D", "N" and "P". The overheads were not great and the work was profitable. Against that background, the plaintiff's suggested figure of an average of $1500 per week net was not unreasonable. 367The figure of $1500 per week net is only a background guide. Given that the plaintiff would have been new in the industry as a self-employed operator, I consider that a more conservative average base rate across the entire 10 year period of past loss should be adopted, namely $1250 per week net of expenses and tax. 368Although it may appear arbitrary, in taking the above discounting factors into account, I consider that a discount of the order of 45 per cent should be allowed for the already identified potentially adverse past vicissitudes in order to adequately reflect the degree of impact such factors would probably have had on the plaintiff's earning capacity from the time of the accident to the present time: Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638, at [7]; page 643. 369The period between the date of injury on 9 June 2003 and the last day of the hearing on 31 July 2013 is 527.42 weeks. 370An initial discount has to be applied to that period to reflect the fact that at the time of the accident the plaintiff was yet to finally and completely establish his water carting business. In that regard, I consider that a discount of about 6 months should be allowed for that fact, reducing the number of weeks for calculating past economic loss to about 500 weeks. 371A loss of $1250 per week net over 500 weeks less 45 per cent for past adverse vicissitudes yields the sum of $343,750. The plaintiff has derived mitigatory earnings totalling some $2000, which must be offset from that sum. I therefore award the plaintiff damages for past economic loss in the amount of $343,750.

Future economic loss 372On behalf of the plaintiff, it was initially submitted that damages for future economic loss should be awarded in the amount of $723,360, being the projection of $1500 per week net at 5 percent for 17 years to age 67 years, less 20 per cent for vicissitudes. On the final day of the hearing that submission was varied to claim the sum of $762,192, being the projection of $1800 per week net over a further 14 years to age 67 years, less 20 per cent for vicissitudes. 373In contrast, on behalf of the defendants, it was submitted that the appropriate sum to be awarded for future loss of earning capacity was a buffer amount of $50,000 inclusive of superannuation. Again, that approach was based on the opinion of Dr Cummine and the defendants' mitigation arguments which I have considered and not accepted. 374The projection of the claim for future loss of earnings to age 67 years seems to me to be inappropriate on the medical evidence concerning the plaintiff's pre-accident back condition and non-accident thrombo-embolic and vulnerable personality issues that would have affected him irrespective of the accident. I consider that on account of those matters, the plaintiff's claim for future economic loss should be assessed on the basis that uninjured, it would have been unlikely for the plaintiff to have worked as a water carter beyond the age of 60 years. 375In those circumstances, I consider that the projection of future economic loss should in this case be limited to a further 6 years to age 60 years. The 5 per cent multiplier for 6 years is 271.4. I consider that the same discount of 45 per cent for potential adverse vicissitudes should also apply to the plaintiff's claim for future loss of earning capacity because the same discounting factors outlined in respect of the claim for past economic loss would continue to be of concern: Malec v JC Hutton Pty Limited. 376I consider that the identified discount of 45 per cent should be sufficient to also incorporate what I have found to be the very slim prospect of the plaintiff being able to achieve or sustain any significant mitigatory earnings despite the substantial impairment of his earning capacity. In view of the plaintiff's significant ongoing disabilities to which I have already referred, any such mitigatory earnings in the form of a residual earning capacity would in my view be serendipitous, minor and transient. 377Although the claim for future loss of earning capacity was put at $1800 per week net, I consider that on the evidence of a sustained track record of the plaintiff running a business, a more conservative figure for projection should be adopted, namely $1500 net per week. That figure should be seen as a higher and updated extension of the average 2003/2013 figure of $1250 per week used to assess past loss of earnings. This would also adequately reflect possible gaps in the plaintiff's ability to work on account of seasonal factors and due to possible temporary flare-ups in his lower back condition. 378In my view, the higher figure of $1500 per week net is justified having regard to Mr Wilson's evidence as to the current hourly rates for water carters at $100 per hour plus GST with scope for variation of plus or minus 5 per cent: Day 4, T33.14. 379The assessment of $1500 per week net projected at 5 per cent over 6 years (x 271.4) yields the sum of $407,100. After applying a discount of 45 per cent for potential adverse vicissitudes, this yields the sum of $223,905. I therefore award the plaintiff damages for future economic loss in the amount of $223,905.

Loss of superannuation 380On behalf of the plaintiff it was submitted that consequent upon any assessments of damages for past and future economic loss, the conventional calculations of loss of superannuation benefits should be made in the respective percentages of 11 per cent and 13.51 per cent of assessed past and future economic loss, namely $343,750 and $223,905. 381I find that on the facts in this case, there is no scope for any such allowances because the underlying basis upon which economic loss has been assessed is the premise that the plaintiff's lost earnings would be derived from his self-employment as a water carter. In those circumstances the plaintiff's income losses, both past and future, would not attract the benefit of employer funded superannuation payments. 382Accordingly, I decline to award any amounts in respect of the claim for loss of superannuation. If I be wrong in that conclusion, having regard to the conventional percentages of 11 per cent and 13.51 per cent, the respective amounts for past and future superannuation losses would stand to be assessed at $37,592 and $30,249 respectively. 383I consider it would be unlikely that the plaintiff would have been an employee in the water carting industry given his significant investment in plant and equipment.

Future treatment expenses 384On behalf of the plaintiff, at the hearing in 2009 it was initially submitted that damages for future treatment expenses should be awarded in the amount of $47,330. This was for proposed visits to a general practitioner, specialists, periodic investigations and physiotherapy. In the course of final submissions on behalf of the plaintiff that figure was increased to the amount of $75,770. In contrast, on behalf of the defendants, it was submitted that the appropriate sum to be awarded for future treatment expenses was the sum of $2000. 385In my view the nature of the plaintiff's ongoing disabilities, his need for continued treatment for pain relief and medication, and his need to be treated with a view to alcohol detoxification, indicate that there should be a significant award for future treatment expenses. This conclusion is not only supported by the plaintiff's evidence of his ongoing need for significant prescription medications for pain relief, as is corroborated by Exhibit "R", but there is support for such an award from within the medical evidence. 386In his report dated 30 July 2009, Dr Kerecz identified a prognosis for the plaintiff of ongoing pain and disability. He thought the plaintiff might benefit from appropriate physiotherapy, specialist pain management and alcohol rehabilitation. He also referred to possible surgical intervention, some of which the plaintiff has already undertaken. Dr Kerecz did not provide any estimates of the costs involved in these treatments. 387Between 2004 and 2006, repeated recommendations were made for the plaintiff to undergo an MRI investigation for possible ligamentous, tendon or joint injury to his left index finger, which had failed to respond to treatment by the injection of steroids. That proposed investigation remains unfulfilled because the CTP insurer declined to pay for this to occur. This too will be a source of probable future expense for the plaintiff. 388In a report dated 3 February 2011, the clinical psychologist, Mr Fathers, suggested the plaintiff needed treatment intervention at several levels, these being medical intervention for his orthopaedic injuries, an admission to a detoxification programme, and a later admission to a rehabilitation programme, as indications for psychological intervention which will take some time to get through in view of the fact that the plaintiff is psychologically caught up with past events. The report of Mr Fathers did not delve into the likely costs of those suggested interventions. 389At the referral of Dr Kerecz, the plaintiff was assessed by his dentist, Dr Chung, for an enhanced primary care dental programme. If I have interpreted Dr Chung's costing correctly, he had initially identified the plaintiff's need for treatment at a total cost of $5376 in November 2011. On 28 May 2012, Dr Chung identified the costings at $6406.70 plus $2000 for an endosseous implant. In a letter dated 25 October 2012, Dr Chung referred to total costs of $5920. In oral evidence the plaintiff made a more recent reference to possible dental treatment costs of about $14,000. Taking Dr Chung's estimates alone, there are still significant amounts of future dental expenditure involved. 390In his report dated 24 November 2005, Dr Conrad referred to the need for the plaintiff to have conservative treatment, which he did not define other than to refer to he need for a structured rehabilitation programme. In his report dated 20 February 2007, Dr Conrad reiterated the need for a structured rehabilitation programme and conservative treatment. In that regard, he referred to the need for physiotherapy, psychiatric support and rehabilitation. In his report dated 24 July 2008, Dr Conrad reiterated the need for conservative treatment. In his report dated 6 July 2011, Dr Conrad referred to the plaintiff's need for substantial ongoing medical supervision for his anticoagulation needs and for physiotherapy. He considered the cost of that treatment to be at least $4000 per year. In his final report dated 22 August 2012, Dr Conrad reiterated his estimate of about $4000 per year and ongoing for those treatments. 391In his first report, dated 20 December 2005, Dr Parmegiani identified the plaintiff's need for future treatment with a mental health professional specialising in the treatment of substance abuse for between 10 and 15 appointments at a cost of between $150 to $250 per session and medication estimated at about $25 per month. These recommendations revealed a range of future short term treatment costs of between $1800 and $3753. In his second report, dated 2 March 2009, Dr Parmegiani identified the same treatment modalities but in the updated cost range of between $2556 to $6336. 392In addition, Dr Parmegiani has identified the likely cost of hospitalisation for alcohol detoxification at approximately $5000 per week for about 6 weeks, namely $30,000. 393A review of the MAS assessment reports reveals that those reports do not canvass the plaintiff's likely future treatment requirements, although Dr Bye noted that the plaintiff experiences severe pain which is best controlled by alcohol, which he referred to as CH2H5OH, this being the organic chemistry symbolic formula for ethyl alcohol. 394On reviewing the above evidence, it is plain that there was no definition of the likely future cost or pattern of consultations with general practitioners, specialists, testing, physiotherapy, medications, long term psychological counselling or treatment, or the cost of any organised programmes. In those circumstances, it is not possible to arrive at a precise figure to represent probable ongoing future medical treatment costs, other than to confirm that the likely costs will be substantial. 395It is against this overview of the evidence on future treatment that the plaintiff's suggested figure of $75,770 requires analysis. That assessment seems to be the rough equivalent of a weekly amount of about $100 projected at 5 per cent over 25 years ($75,770 divided by 753.6). That cross-check analysis suggests that having regard to the nature, extent and range of modalities of the treatment suggested, the costing submitted on behalf of the plaintiff appears to be within the range of what would seem to be reasonably required for future treatment, especially given the need to reflect uncertainties over the extent of the likely costs that will be incurred by the plaintiff in respect of future treatment. In that regard, I note that Dr Conrad's estimate of $4000 per annum (excluding psychological and related intervention) amounts to about $77 per week, which on the 5 per cent tables projects to $58,027 before additional allowances are made for detoxification and related treatments. 396Against that background, I consider that a discounted and rounded down amount of $75,000 would be a reasonable buffer lump sum to award the plaintiff to cover the cost of the recommended future accident related treatment. I therefore award the plaintiff damages for future treatment expenses in the buffer amount of $75,000.

Past care and domestic assistance 397On behalf of the plaintiff, it was submitted that damages for past care and domestic assistance should be awarded in the amount of $43,680, being an average of 10 hours per week for 130 weeks from 31 January 2011 to date, at the rate of $24 per hour. That is an inexact amount that must be viewed against the mandatory assessment rate requirements of s 141B of the MAC Act, which must not be exceeded: s 141B(4). 398In contrast, on behalf of the defendants, it was submitted that there should be no award of damages for past domestic assistance. 399I consider both of those positions do not reflect the evidence concerning the plaintiff's claim for past domestic assistance. 400Although the plaintiff received some domestic assistance between 2003 and 2011, no claim is made in respect of that period. The absence of a claim along those lines could be for a number of possible reasons, including that the level of assistance actually provided to the plaintiff did not meet the statutory threshold of 6 hours per week for a minimum of 6 months: s 141B(3) of the MAC Act. It is not necessary to speculate upon why there is no claim for domestic assistance prior to 31 January 2011. 401Accordingly, the consideration of the claim for past domestic assistance will be restricted to the period following the plaintiff's discharge from hospital after his cervical fusion in January 2011. 402A review of the medical evidence on the subject of the plaintiff's need for domestic care or assistance reveals polarised views. 403In support of the claim made by the plaintiff for domestic assistance, Dr Conrad's initial views in 2005 were to the effect that the plaintiff should not engage in lifting activities above shoulder level with his left arm or use heavy industrial vacuum cleaners or polishers. In 2008, Dr Conrad expressed the view the plaintiff might need some 6 hours per week of domestic assistance. By July 2011, and following the neck surgery, Dr Conrad was of the view that the need for such assistance had increased to at least 8 to 10 hours per week. He reiterated that view in his final report dated 22 August 2012, identifying the need to be related to matters of housekeeping and property maintenance. 404I do not accept the opinion of Dr Cummine to the effect that the plaintiff does not require domestic assistance and instead prefer the reasoned views expressed by Dr Conrad concerning the plaintiff's need for such domestic assistance. 405There is discord between the plaintiff's submission arguing for past care in the sum of $43,680 and the evidence in support of such a claim. 406Although the medical evidence that I have accepted supports the claim made, the calculation submitted on behalf of the plaintiff does not reflect the evidence of the plaintiff as to the amount of domestic assistance he has actually received since he was discharged from hospital on 31 January 2011. 407The evidence disclosed that up until the time of the plaintiff's surgery in January 2011, his son Nathan and he would each do some of the domestic work: Day 4, T8.8. No claim is made in respect of that assistance. 408After the plaintiff's cervical fusion surgery, he required more extensive care and assistance: Day 4, T9.15. The additional assistance was of the order of 2 to 3 hours per day, or between 14 and 21 hours per week for at least 6 months: Day 4, T9.15 to T9.26. The evidence of the period over which that level of care was provided to the plaintiff up to about a year after the surgery, was left in a vague state: Day 4, T9. 409After that period of a year, the plaintiff's son ceased living with him, following which the plaintiff tended to his housework "every now and then" when he got around to it: Day 4, T10.4. It appears that the plaintiff just exists by continuously drinking alcohol during the day: Day 4, T21.46. This suggests that the suggested domestic assistance, the domestic work involved, is simply left unperformed. 410In those circumstances, the amount to be awarded for domestic assistance must necessarily be limited to a sum for less than that which was submitted on the plaintiff's behalf. It appears from the plaintiff's evidence at Day 4, T9, that the period of assessment should be limited to 12 months between 31 January 2011 and 31 January 2012. I infer from that evidence that the plaintiff received the claimed 10 hours of care per week in that period. 411Appendix 1 to these reasons identifies the value of 10 hours per week of domestic assistance in that period at the rate prescribed by s 141B of the MAC Act to be $13,186. I therefore award the plaintiff damages for past care and domestic assistance in the amount of $13,186.

Future care and domestic assistance 412On behalf of the plaintiff, it was submitted that damages for future care and domestic assistance should be awarded in the amount of $337,500, being for 10 hours per week projected over the plaintiff's probable life span at $40 per hour. 413In contrast, on behalf of the defendants, it was submitted that there should be no award of damages for future care and domestic assistance. 414At present the plaintiff lives a relatively substandard existence on a remote rented property for reasons of financial economy, given his limited means. The house has "been totally wiped out by white ants" and "is due to be demolished because of its instability": Day 4, T10.9. That property is larger than his needs require and therefore it probably has greater maintenance requirements than would otherwise be the case. At present he does not receive the domestic assistance he needs. That position will change when he has funds to pay for such assistance: Day 4, T10.20; T53.47. 415In my view, the plaintiff's future domestic assistance needs will probably diminish once this litigation is concluded and when the plaintiff finds smaller premises more suitable to his needs and requiring a lesser degree of domestic assistance with regard to indoor cleaning, outdoor maintenance and other assistance. It would be wrong in principle to make an assessment along the lines that as the plaintiff is not actually receiving that which he actually needs, he should not receive an allowance to pay for what he needs in the way of domestic assistance. 416I therefore propose to award the plaintiff damages for future domestic assistance for a lesser amount than the claimed 10 hours per week. Although the evidence does not provide much guidance on the extent to which a reduction in hours should be made, recognising that compensation is not intended to be perfect, I consider that an allowance of an average of 7 hours per week for future domestic assistance would be a reasonable approach to this aspect of the assessment. 417A provision for 7 hours per week should be an adequate allowance to provide the plaintiff with paid assistance for the indoor activities of cleaning and moving furniture about, outdoor maintenance for gardening, lawnmowing and the like, as well as carrying heavy shopping and other incidental tasks. It would be unreasonable to deny the plaintiff such compensation in the face of a demonstrated need, especially where the non-provision of such an allowance would result in him living in squalor. 418The projection of the value of 7 hours per week of commercially provided domestic assistance at $40 per hour ($280 per week) at 5 per cent over the plaintiff's discounted probable life span of 25 years (x 753.6) yields an amount of $211,008. 419I consider that this sum requires some discounting on account of possible adverse vicissitudes for a number of reasons which could independently operate to increase the plaintiff's domestic assistance needs irrespective of the effects of the subject accident. 420Without attempting an exhaustive list, those reasons include matters such as the plaintiff's unrelated thrombo-embolic problems, a further exacerbation of his underlying back condition, the occurrence of other psychological stressors unrelated to the subject accident, the effect of which might spiral the plaintiff into reinstated dependence on the heavy use of alcohol, on the assumption that long term detoxification treatment made available through the proceeds of litigation, was otherwise successful. 421I consider that a further discount of 10 per cent should be applied in addition to the conventional 15 per cent discount for potentially adverse vicissitudes, making a total discount of 25 per cent. Applying that discount to the sum of $211,008, this yields the amount of $158,256. I therefore award the plaintiff damages for future care and domestic assistance in the amount of $158,256.

Past out-of-pocket expenses 422On the final day of the hearing the parties announced their agreement on the amount the plaintiff was entitled to recover by way of out-of-pocket expenses, namely the amount of $5364. This did not include the cost of the cervical fusion surgery, which was presumed to have been covered as a public hospital provided service. I therefore award the plaintiff damages for past out-of-pocket expenses in the amount of $5364.

Summary of damages assessment 423My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $250,000 (b) Past economic loss $343,750 (c) Future economic loss $223,905 (d) Loss of superannuation $Nil (e) Future out-of-pocket expenses $75,000 (f) Past care and domestic assistance $13,186 (g) Future care and domestic assistance $158,256 (h) Past out-of-pocket expenses $5,364 Total $1,069,461

Disposition 424The plaintiff is entitled to a verdict and judgment in his favour in the assessed amount of $1,069,461 without any discount on account of alleged failures on his part to mitigate his damages.

Costs 425As the proceedings have been determined in the plaintiff's favour, he is entitled to an order that his costs of the proceedings be paid by the defendants on the ordinary basis unless a party is able to demonstrate an entitlement to a different order for costs, in which case there will be liberty to apply for a different costs order.

Orders 426I make the following orders: (1)Verdict and judgment for the plaintiff in the sum of $1,069,461; (2)The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. APPENDIX 1 CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE MOTOR ACCIDENTS COMPENSATION ACT 1999, s 141B (10 hours per week between 31 January 2011 and 31 January 2012) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.141B s.141B 10 HOURS PER RATE RATE WEEK

1. 31.01.2011 to 18.02.2011 02.57 $996.40 $24.91 $640.18
2. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $3294.74
3. 21.05.2011 to 19.08.2012 12.85 $1026.00 $25.65 $3296.02
4. 20.08.2012 to 18.11.2011 12.85 $1027.10 $25.67 $3298.59
5. 19.11.2011 to 31.01.2012 10.42 $1016.30 $25.40 $2646.68 TOTAL $13,186.21

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