Mathews v Schuler

District Court of NSW|2018-06-29

Solicitors: TBC Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant) File Number(s): 2017/00347085

CONTENTS PARAGRAPHS Judgment The pleadings Plaintiff's background Prior medical history The motor vehicle accident Records at Royal Prince The plaintiff's evidence The plaintiff's oral evidence Oral evidence of Mr David Newling Oral evidence of Dr Anthony Lam Oral evidence of Dr Aladdin Matter Evidence for the defendant The defendant's oral evidence Oral evidence of Ms Anne Nielsen Medical evidence relied upon by the plaintiff Medical certificate prepared by Dr Matter Opinions and notes of Dr Lam CT scans 11 December 2014 Ultrasound right shoulder Reports of Michael Ryan, physiotherapist Reports of Dr Y K Lee The plaintiff's motorcycle accident Report of MAS assessor Dr E Parmegiani Report of MAS assessor Dr Alan Home Report of Dr R O'Toole, Medical evidence of the defendant Report of Dr J Roberts, psychiatrist Reports of Dr A Keller Credit issues relating to the witnesses Mr Newling Ms Nielsen Dr O'Toole Dr Lam Dr Matter Ms J Schuler - the defendant Mr Aylwin Mathews - the plaintiff Submissions of the parties Factual findings Medical findings Findings in relation to Findings in relation to Consideration Duty of care and Breach of duty of care Contributory negligence Causation Damages Past out-of-pocket expenses Future out-of-pocket expenses Past economic loss Loss of future earning capacity Disposition 1 5 and employment history 9 21 23 Alfred Hospital arising from the accident 32 34 127 132 148 162 177 182 183 184 186 188 189 195 204 208 216 occupation and environmental physician 221 224 225 239 253 254 255 257 261 263 272 275 278 281 alleged physical injuries arising from the accident 287 alleged psychiatric injuries arising from the accident 293 303 304 312 318 320 323 328 329 346

Judgment

In this matter, the plaintiff, Mr Aylwin Mathews, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) ("the Act") for personal injuries alleged to have been suffered by him as a result of the negligence of the defendant in driving a motor vehicle which collided with the plaintiff's motor vehicle on 11 October 2014. Breach of duty of care has been conceded by the defendant although contributory negligence has been pleaded.
At the time of the accident, the plaintiff was residing in Sydney pursuant to a student visa.
The plaintiff was born in New Delhi in India in October 1989. He was 25 years of age at the time of the accident and nearly 29 years of age at the date of the commencement of the trial. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act.
The plaintiff's claim for damages is limited to past and future out-of-pocket expenses, past economic loss and future economic loss, the latter being sought as a significant buffer.

The pleadings

The plaintiff relies on a Statement of Claim filed on 16 November 2017. The plaintiff pleads in summary as follows: 1. On 11 October 2014 at approximately 6:15 am (later evidence corrected this to 6.15 pm: T51.17) the plaintiff was driving his motor vehicle along Belmore Road near the intersection of Belmore Road and Washington Avenue at Riverwood in Sydney (paragraph 4); 2. As the plaintiff entered the intersection of Belmore Road and Washington Avenue, the defendant entered the intersection in her motor vehicle and collided with the plaintiff's vehicle. As a result, the plaintiff sustained injury, loss and damage (paragraph 6). It is alleged that the injuries suffered as a result were caused by the negligence of the defendant (paragraph 7); 3. Particulars of injuries are given including injury to the chest, concussion, injury to the cervical, thoracic and lumbar spine; injury at the L4/5 and L5/S1 levels, rotator cuff injury of the right shoulder, injury to the left shoulder, post-traumatic stress disorder and severe psychological injury.
A Statement of Particulars was also filed by the plaintiff on 16 November 2017 which repeated the particulars of injuries in the Statement of Claim and referred to extensive particulars of continuing pain including constant pain in the cervical spine and right shoulder, pain in the right shoulder radiating down the right upper limb, pain in the thoracic spine, persistent pain in the low back, reduced standing and sitting tolerances, post-traumatic stress disorder, anxiety disorder and secondary depression. Particulars of damages sought are given.
In her Defence filed 2 March 2018, the defendant: 1. Admits the collision; 2. Admits a breach of duty of care owed by her to the plaintiff (paragraph 3(c)); 3. Pleads contributory negligence; 4. Alleges that the plaintiff has made multiple statements in connection with the claim which are false or misleading and amount to fraudulent conduct on his part, detailed particulars of which are given (paragraph 5); 5. Denies that any injury, loss and damage claimed by the plaintiff was caused by the negligence of the defendant in the collision (paragraph 3).
It will accordingly be seen that a significant issue in the proceedings is what injuries, if any, were caused to the plaintiff as a result of the accident and whether any of those injuries have caused disabilities including disability as a result of psychiatric injury. A significant part of the plaintiff's case is an allegation that as a result of the injuries which he suffered arising from the accident, he has no realistic prospect of obtaining a commercial pilot's licence with the loss of significant future income. A loss of future earning capacity on the basis of a significant buffer is claimed. There is also a related issue of what treatment expenses were appropriate arising from the accident and whether any damages should be awarded for likely future treatment expenses.

Plaintiff's background and employment history

I now set out the background details relating to the plaintiff and his employment history. Unless I otherwise indicate, what follows are my factual findings in the case on these matters.
As stated above, the plaintiff was born in October 1989 and was nearly 29 years old at the time of the commencement of the trial. The plaintiff was born in India and completed the equivalent of Year 12 in India in 2007. Whilst in India, the plaintiff completed an entrance test conducted by Aerospace Aviation in New Delhi for the purposes of undertaking a commercial pilot's licence course at Aerospace Aviation's school in Sydney in Australia. The plaintiff passed the test, was offered a position and arrived in Australia in February 2008 to commence his studies.
The plaintiff obtained through his parents a student loan of $50,000 to pay for the fees for his course in order to enable him to obtain his visa to travel to Australia to undertake the course. Between February 2008 and December 2009 the plaintiff undertook his studies at Aerospace Aviation and completed significant hours of flying during the course. At the end of 2009, Aerospace Aviation, which was a company, went into liquidation. At that time, the plaintiff had completed all but one module in his course. Following the completion of the course and undertaking the relevant exams successfully, the plaintiff would have been qualified to be awarded a commercial pilot's licence which had been his ambition or as he described it his "childhood dream".
From the end of 2009 until later in 2010, the plaintiff was unable to continue his studies due to the liquidation of Aerospace Aviation. In order to assist students who had been left in dire straits due to the liquidation of Aerospace Aviation, some students were assigned to complete their course at other organisations. In the latter part of 2010, the plaintiff was assigned to complete his pilot's course at Basair, another flying school, at Bankstown Airport in Sydney. However, the plaintiff required an additional amount of about $12,000 to complete his training at Basair and he gave evidence that he did not have the funds to undertake the course and was therefore not able to complete his training: Exhibit C; cf T47.6. By the time he ceased at Basair he had undertaken well over 200 flying hours.
In May 2012 the plaintiff commenced an Advanced Diploma of Management at AH & B College at Bondi Junction in Sydney. He gave evidence that the purpose of undertaking the course was to obtain a better position to earn more money to complete his commercial pilot's course and to assist him in moving towards the requirements to obtain permanent residency in Australia: T47-8. The plaintiff completed the Advanced Diploma of Management.
In July 2013 the plaintiff enrolled in a business degree at Victoria University, Sydney campus, which was a course of two years' duration. The plaintiff expected that he would complete the course in July 2015.
On 11 October 2014, the plaintiff was involved in the motor vehicle accident the subject of the proceedings which will be considered in further detail below. The plaintiff gave evidence that the accident caused him not to complete aspects of his studies at the time and delayed his completion of the degree. In October 2015, the plaintiff completed the course and graduated with the degree of Bachelor of Business majoring in Information Systems Management: Exhibit C.
On 2 November 2015, the plaintiff obtained employment with The Lynch Group Australia as a business analyst and in December 2016 was promoted to assistant account manager at The Lynch Group.
The plaintiff had undertaken part-time employment during his studies in Australia. From October 2008 to August 2012 he was a warehouse attendant at Clifford Hallam Healthcare. From September 2012 to October 2015 the plaintiff worked at IKEA at their store at Tempe in Sydney. He was a part-time sales assistant and showroom worker. He was in this employment as a sales assistant/showroom worker at the time of his accident. Whilst at IKEA, the plaintiff gave evidence that he took between eight and 10 days off work due to injuries he received in the accident: Exhibit C. This claim was disputed by the defendant.
The plaintiff's tax returns and assessments were in evidence. These show that the plaintiff had the following taxable income: Financial year ending Taxable income $ 2012 $27,404 2013 $29,897 2014 $37,288 2015 $42,874 2016 $53,757 2017 $65,315

The plaintiff claims that he would have received substantially higher income if he had completed his commercial pilot's course and obtained appropriate employment as a commercial pilot.
The plaintiff is a single man without dependent children and resides in Sydney. He undertakes frequent interstate travel as part of his job. The plaintiff gave evidence that he was granted permanent resident status on 22 January 2018 and in due course will apply to be made an Australian citizen.

Prior medical history

The plaintiff's relevant prior medical history was limited and was as follows.
On 23 April 2012 the plaintiff strained his right shoulder whilst he was picking up a 12kg carton from shoulder height whilst in his job as a warehouse attendant: Exhibit A page 219. The plaintiff was certified as being unfit for work until 5 May 2012 but was later certified as fit for restricted duties. A medical practitioner certified the plaintiff as being fit for his preinjury duties from 8 June 2012: Exhibit A page 226. The plaintiff undertook physiotherapy and gave evidence that he eventually regained a full range of movement and strength in the right shoulder: Exhibit A page 56; T49-50. There was no evidence to establish this was not the case.

The motor vehicle accident

As stated above, the motor vehicle accident giving rise to these proceedings occurred on 11 October 2014 at about 6:15pm: T51.17. The plaintiff gave evidence that he was proceeding down Belmore Road at Riverwood in Sydney in his Hyundai sedan. He stated that the defendant in her vehicle was travelling down Washington Avenue which concluded at a T-intersection with Belmore Road. He said the defendant failed to give way at the intersection and collided with the passenger side of the plaintiff's vehicle. Some damage was caused to the plaintiff's car: see the photographs in Exhibit B.
I will consider further aspects relating to the circumstances of the accident below.
Both police and an ambulance attended the scene of the accident: T56-57. The plaintiff signed an Accident Notification Form on 6 November 2014: Exhibit A page 4. In this Form he described the accident as follows: "I was travelling on Belmore Road around 6:15pm on the 11/10/14 on my way to Holsworthy when Jennifer's car came from Washington Avenue and hit my car on the left (passenger) side. After this she took off from the scene without exchanging details. I had to [c]all an ambulance to the scene as I was suffering severe chest pain. I was treated at the scene but was advised to call the ambulance back or go to a hospital emergency if the pain became worse. Later that night I was driven to RPA Hospital Emergency Department by my friend following severe chest pain. I had to stay in the hospital until next morning." (Exhibit A page 3)
In the Accident Notification Form the plaintiff states that he was employed part-time at the time of the accident and lost "one week" of work time from 12 October 2014 until 18 October 2014 (Exhibit A page 3). He indicated that he worked at IKEA Pty Ltd at the time and usually worked 25 hours per week and was paid $600 per week gross and $500 per week net.
A medical certificate was completed by Dr Anthony Lam on 18 November 2014. This stated the date of examination as being 22 October 2014 and that Dr Lam's medical diagnosis was "anterior chest pain" with findings of "tenderness" in the lower sternum. Dr Lam expressed the opinion on the form that the injuries were consistent with the circumstances of the accident as described to him. He indicated that a short-term treatment plan of six weeks was likely to be required and the plaintiff was fit to resume normal duties on 18 October 2014. The medical form stated that the plaintiff had been a patient of the practice for one year (Exhibit A page 5).
The plaintiff submitted a motor accident personal injury claim form which he signed on 18 February 2015: Exhibit A page 12. The accident details were similar to those disclosed in the Accident Notification Form. The motor accident personal injury claim form stated that the plaintiff was the driver of the car and was wearing a seatbelt at the time. The diagram of the accident in the form disclosed details similar to the Accident Notification Form. The plaintiff described what happened in the accident in the form as follows: "I was driving along Belmore Rd when a car from a side street did not give way and collided with my vehicle". It is noted in the form that the police took the plaintiff's details at the scene of the accident, an ambulance came and he was treated at Royal Prince Alfred Hospital.
The list of injuries in the motor accident personal injury claim form was as follows: chest wall, concussion, head, neck, whiplash, back, anxiety, depression, shock and severe headaches. It was noted that the plaintiff had received treatment from Dr A Matter, general practitioner, and a Dr Maniam, specialist, was referred to. The plaintiff claimed, apparently contrary to his oral evidence, that he had not suffered any other injuries or illnesses before or after the accident to the same or similar parts of his body: Exhibit A page 10. The plaintiff indicated that he was a part-time employed sales assistant with IKEA and earned $600 per week after tax at the time (the Accident Notification Form referred to $500 per week).
A medical certificate dated 13 October 2014 was attached to the motor accident personal injury claim form: Exhibit A page 13. The certificate was given by Dr A Matter. The certificate disclosed that Dr Matter had examined the plaintiff on 13 October 2014 and diagnosed concussion, "cervical spine spasm" and thoracic and lumbar spine "myoligamentous injury". Dr Matter's findings were dizzy spells, neck stiffness and mid-back stiffness and pain. He regarded the injuries and conditions which he found as being consistent with the accident. It was noted that he had referred the plaintiff to a specialist being Dr Maniam. The medical certificate dated 13 October 2014 indicated that the plaintiff was fit to resume normal duties of a light nature with restrictions on 13 October 2014. It was stated that the plaintiff had been a patient for less than a year. The accuracy of the date on this form was the subject of further evidence.
The ambulance service records were in evidence with the plaintiff complaining of chest pain as a result of a low-speed motor vehicle accident: Exhibit A page 14. The records recorded "nil damage to Pt car". This is contrary to the plaintiff's evidence and the photographic evidence: Exhibits B and E. It was not put to the plaintiff that these photographs were not photographs of his car after the collision.

Records at Royal Prince Alfred Hospital arising from the accident

Mr Mathews gave evidence that a friend of his took him to Royal Prince Alfred Hospital on the evening of the day of the accident as he was still suffering from chest pain. The admission records refer to the plaintiff complaining of central chest pain with associated shortness of breath. The plaintiff was given Panadeine Forte, Endone and Nurofen: Exhibit A page 19. The discharge summary referred to a diagnosis of "musculoskeletal chest pain". On examination the plaintiff had some chest tenderness, his abdomen was soft and was not tender and there were "no other signs of injury": Exhibit A page 15. The discharge summary states that the plaintiff was given pain relief and the "pain resolved": Exhibit A page 16. The plaintiff was treated as an emergency patient. He did not stay overnight in the hospital.
An x-ray was undertaken of the plaintiff's chest. No rib fracture was identified and no underlying injury was found: Exhibit A page 21. A CT scan was undertaken of the plaintiff's chest and no thoracic injury or other problem was identified. There was no fracture located or any suspicious bony lesion: Exhibit A page 22. The plaintiff was discharged for follow-up with his general practitioner.

The plaintiff's oral evidence

I have already set out above a number of my findings in relation to the plaintiff's background. In his oral evidence in chief the plaintiff confirmed that he had wanted to become an airline pilot since Year 8 or Year 9 at school. He said that ultimately he wanted to be a pilot of the Airbus but realised he would have to progress as a pilot through flying different planes. The plaintiff said that when he passed his entrance test with Aerospace Aviation in New Delhi and was selected for the course in Australia he was very proud of this achievement and believed his dream had come true: T42.37.
The plaintiff said that he was progressing well in his course at Aerospace Aviation in Sydney and was one of the first students in his course to progress to being able to fly solo: T43.24. This was one of the stages to advance to an ultimate commercial pilot's licence.
Mr Mathews gave evidence about Aerospace Aviation going into administration and then liquidation. He said that at this time he had a probable maximum of four months of further study to obtain his Diploma of Aviation from the aviation school and then his commercial pilot's licence from the Civil Aviation Safety Authority: T44.3. He stated that after an extensive period he was offered by a government agency called ESOS, assistance to progress with his aviation study. He said he was given the option of getting some money back from his fees and returning to India or continuing with his course in Australia and he decided that the money offered should be forwarded to the alternate aviation education provider, Basair, which was located at Bankstown Airport: T44.44. He said that the transfer took a lengthy period of time to occur and he had to await the entire liquidation process of Aerospace Aviation. He said it was not until the end of 2010 that he was assigned to Basair and that his student visa was extended: T45.6.
The plaintiff said he was with Basair for a little over a year. He said the break between his time at Aerospace Aviation and Basair meant that he had to undertake a number of additional courses. He said he stayed with Basair until his savings were exhausted. His parents said that they could not provide any further financial assistance to him. This meant he had to cease his studies with Basair at the end of 2012. He said he understood that between $15,000 and $20,000 was required to complete his studies depending on the number of hours of flying required: T45-47; cf Exhibit C.
The plaintiff said he decided that he needed to settle on an alternative path of study leading to employment in order to save money to undertake his flying studies. The Advanced Diploma of Management and the Bachelor of Business which he undertook from 2012-2015 were undertaken so that he could continue with a student visa and also obtain qualifications to save the money to undertake his aviation studies to complete the requirements for a commercial pilot's licence: T47.34; T48.15.
The plaintiff gave some further evidence in relation to his shoulder injury on 23 April 2012. He said he made a workers compensation claim and had physiotherapy for a few months but his shoulder "completely healed" by undertaking the exercises which he was instructed to do. By July 2012 he said he had no issues with his shoulder. He also confirmed that he did not suffer any psychological injury as a result of the accident: T50.6.
The plaintiff then gave evidence about his work at IKEA. He said that he worked the number of hours he was permitted as a student which was 20 hours per week. He said that as he was a student he had no Medicare access and no access to Centrelink benefits.
The plaintiff gave further detailed evidence in relation to the accident and said that it occurred at 6:15pm on Saturday 11 October 2014 while he was driving from his home in Penshurst to Wattle Grove: T51-56. He said he was driving down Belmore Road in Riverwood at between 40 and 50kph. He said it was fine and there was plenty of light at that time. He said he was travelling in the kerbside lane of two lanes towards the motorway when he approached the intersection with Washington Avenue in Riverwood. He said that as he was passing Washington Avenue he noted in his left peripheral vision a car approaching and almost simultaneously there was an impact by the car with the passenger side of his car. The plaintiff emphasised that he was keeping a lookout while he was driving along: T52.47.
The plaintiff described the collision as a "big impact" and his car spun 90 degrees so that the front of the vehicle was facing Washington Avenue: T54.27. He confirmed that the photographs of his car, which became Exhibit E, showed the resultant damage to his car. He said his car was not repaired and he only obtained a salvage value of $500 for it: cf Exhibit 9.
The plaintiff said that immediately subsequent to the collision he felt complete shock, his whole body was shaking, his right side had hit the wall of the car as it was being spun around, he felt lightheaded and his whole body was in pain:T55. At that stage he could not isolate particular parts which were in pain but said that the upper body was painful, particularly his chest, right shoulder and back. He said he also had minor pain in his left shoulder: T55.23.
After a few seconds he said he got out of the car and spoke to the other driver. She confirmed that she was okay. He said to her that as it was a busy street they could not sort out the details there and he indicated he would reverse his car into Washington Avenue. He said that as he did that the defendant drove off and he noticed another lady standing by: T55-56.
The plaintiff said the police attended after 10 or 15 minutes, he spoke to police and provided information to them. He said the police were at the scene for about 20 minutes in two cars and the defendant driver did not return to the scene. He said an ambulance came and examined him at the scene of the accident.
The plaintiff said that after 20 to 30 minutes "the pain continued". He had pain in his chest, his back, his right shoulder and he was shaking. He said emotionally he was "really bad" and he was shivering with shock: T57.26.
The plaintiff said that a friend then collected him from the scene and drove him home and then got his car. He said that at home the pain became worse and his body remained in shock and he had chest pain as well as lower back pain and right shoulder pain. His friend took him to Royal Prince Alfred Hospital and he remained in the Emergency Department overnight although was not admitted, while tests were undertaken.
The plaintiff was asked whether he saw a general practitioner. He said that he saw Dr Matter and Dr Lam and stated that he believed he saw Dr Lam first (T60.7), although he had a doubt as to who he saw first. He said that having seen the records he could be wrong: T60.14.
The records indicate that the plaintiff apparently saw Dr Matter a few days after the accident and Dr Lam somewhat later: Exhibit A pages 5 and 13. The correct sequence was in issue in the proceedings.
The plaintiff said that in the first two weeks after the accident he had chest pain then lower back pain and right shoulder pain: T60.29. Dr Lam prescribed Voltaren Rapid tablets and referred him to Dr Maniam, orthopaedic surgeon. Dr Matter referred him to physiotherapy and he had three to four sessions: T60-61.1.
The plaintiff said that by early 2015 the problems with the chest pain had completely gone away and he had recovered from his problems with the left shoulder. He said he continued to have pain in the right shoulder, in the lower back and in the neck: T61.29.
The plaintiff said that the pain in his right shoulder was in a different area to that where he had the pain in 2012. He said he had a more limited range of movement and the pain in his shoulder arising from the motor accident was different and more intense: T61.36-62.7.
The plaintiff stated that he had a few days off work at IKEA and then resumed work. He said he took some leave and lost some pay as a result of the time he took off from IKEA: T62.25.
The plaintiff said that the accident had a greater effect on his mental state. He said he had episodes where he kept waking at night, he could not focus and had headaches which prevented him studying: T63.2.
The plaintiff said that as at October 2015 his lower back was still painful in the area just above the belt line, although the pain radiated out from there. He said his back pain was constant and became worse with lifting, bending or carrying: T64.48.
The plaintiff said that his first job at the Lynch Group was a desk job and required sitting down for lengthy periods. He noted that after he was sitting down for more than 20 minutes that his back became painful but he was able to get up and walk around: T65.32.
The plaintiff indicated that having regard to his perceived difficulties in completing his pilot studies due to his accident that he intended to stay in employment with the Lynch Group: T66.22.
The plaintiff gave evidence in relation to a motorcycle accident in which he was involved in August 2015 at the Royal National Park where he came off his bike at very low speed in the wet gravel and fell on his right shoulder and broke his clavicle. He agreed that he attended Sutherland Hospital and was eventually operated on by Dr Smith in August 2015 and was reviewed by him later.
The plaintiff said that with exercises he recovered from his injury in the August 2015 accident: T67.41-.46. He stated that this injury was in a different location to the motor accident injury to his right shoulder. He said that the motorbike injury was at the top of the shoulder near the base of the neck whereas the injury to his shoulder in the motor vehicle accident was further down the shoulder near the area of the rotator cuff: T67.44-T68.13.
The plaintiff stated that prior to the motorbike accident he could not extend his arm up or to the side or rotate it without pain. He also felt pain if he pushed his shoulder too much: T68.28.
The plaintiff said that he had no psychological reaction after the motorbike accident: T69.5.
The plaintiff then gave evidence about his psychological state when he saw MAS Assessor Dr Parmegiani in October 2015. The plaintiff said that he had "episodes" of the accident during his sleeping and would wake up including with headaches. He said he was anxious, was short tempered and angry and was frustrated. He said that when he was stressed he began shaking and he had never experienced that before. He said he was worrying about his future at the time: T69.28. The plaintiff said that prior to the bike accident he believed that he was no longer suitable for flying. He said that self-control was needed for flying and he had considerable anxiety. He said that flying required concentration on different gauges and instruments and thinking ahead. He said that the stress in flying and the restriction of the range of movements through his injuries meant that he thought he was unsuitable for flying. Mr Mathews candidly stated that he thought his anxiety and stress meant that he was not suitable to be responsible for passengers: T77.32-T78.28.
The plaintiff gave evidence that in 2016 his psychological issues became worse: T79.29. In particular, his anxiety level and his stress and lack of concentration became worse. He agreed that he was promoted in this period but said he kept his anxiety issues for when he got home and tried to maintain a professional approach at work.
He said that he was having concentration problems at this time and could not locate his keys on occasions.
The plaintiff stated that his sleeping pattern was poor in 2016. The plaintiff said that his sleep was often broken and he had flashbacks of the accident which woke him up with an elevated heart rate. He said that in 2016 he had flashbacks of the accident about every second or third day: T80.31.
The plaintiff was then asked questions about his last six months. He said his psychological condition was "pretty much the same": T81.7. He said his low back pain had not improved and if anything it had become worse. He said that having spent a number of hours giving evidence his pain in the back had gone from a mild to a moderate level because at work he was able to get up and walk around to assist with the pain. The plaintiff said his right shoulder was consistently painful: T81.49. He said as at today he did not think he was well enough to resume the studies necessary for a pilot.
The plaintiff said he had no high blood pressure prior to the accident.
The plaintiff was subject to extensive cross-examination by counsel for the defendant. A number of areas relating to the plaintiff's prior study history, the accident and the alleged injuries arising from the accident were covered. The plaintiff was also asked questions about his current employment with the Lynch Group and his social activities.
The plaintiff confirmed that he started his employment with the Lynch Group in November 2015 as a Business Analyst. He said that after 12 months he was promoted to Assistant Accounts Manager and received a pay rise. He said he initially started on a salary of $55,000 per year which was increased in the role of Business Analyst to $60,000. He said he received a further increase in his salary to $70,000 per year on his promotion to Assistant Accounts Manager. This should be compared to page 4 of Exhibit C which has the plaintiff's salary at $77,000. Mr Mathews gave evidence that performance reviews were conducted at the Lynch Group each October and employees received annual pay rises depending on how the company was going and on the individual's performance and their role. Mr Mathews gave evidence that the average increase per annum was between 3% and 5% of the employee's annual salary.
Mr Mathews confirmed that his intention was to stay at the Lynch Group and advance his career. He said that the next progression was to Account Manager which he was looking to be promoted to in about two to three years. Mr Mathews gave evidence that he reported to the Account Manager now, who received a significantly higher salary than he did and had a dual role of dealing with account management and trade marketing. He confirmed that he aspired to the Account Manager position but not in a dual role. Mr Mathews said that although he was not sure, he understood that the Account Manager position earned somewhere around $80,000 with pay rises each year which he presumed would be at least to compensate for CPI increases.
Mr Mathews was then asked questions in relation to the impact of the 11 October 2014 accident on his studies. He confirmed that he had started a Bachelor of Business degree at Victoria University in 2013 as a full-time student. Mr Mathews also confirmed that he had given evidence in chief that he had failed a subject in his course after the accident which had led to a delay in completing the course: T105.1-.11; T106.49. This seems to reflect the plaintiff's evidence in chief that he had failed a unit after the accident and his course had been delayed in its completion due to the accident: see T62.42 and T76.9.
After some considerable cross-examination in relation to this issue, it appeared clear that the plaintiff had only failed one unit in his Bachelor of Business degree which was the subject of Business Law and which had been failed by him prior to the accident: see Exhibit 1 for the plaintiff's academic transcript from Victoria University. A summary of the plaintiff's evidence in this period of cross-examination is that he relied on working over the summer to raise money for living costs and to pay his fees for the degree. His evidence was that the accident had delayed the opportunity for him to plan to repeat the Business Law course over a summer with the result that he had been forced to delay the course overall: T106.25; T107.35; T109.9. The plaintiff gave evidence, which was confirmed by his academic transcript, which was Exhibit 1, that he had received a number of bare passes in the course of his degree.
In my view, the plaintiff's evidence was somewhat inconsistent on this issue. Initially, in his examination in chief, he said that he had failed a unit following the motor vehicle accident which had delayed his studies. He then said that he did not remember clearly when the failure had occurred but that he was hoping to make up the failure in a summer school course but could not because of the accident. He accepted that paragraph 20 of a statement signed by him on 10 February 2016 indicated that he had failed a subject due to the accident: T109.6. The plaintiff then stated that his graduation had been delayed due to the accident. Mr Mathews said that he was attempting to say in his statement that his graduation was delayed as a result of the accident: T109.10. Mr Mathews denied that he was being deliberately misleading in relation to his evidence on this point. He said he had discussions with university counsellors to the effect that because of the accident he could not undertake exams and he was given an extension for his exams: T109.23.
Mr Mathews denied that prior to October 2014 he was already having difficulties completing his studies at Victoria University. However, he accepted that he had failed a subject prior to the accident in Business Law. He also accepted that prior to the accident he had problems with his family as his mother had health issues and his parents had some relationship issues. He recalled discussing these problems with his course supervisor Mr Elias who was very helpful. He agreed that he told Mr Elias that he was struggling to live in Australia both financially and psychologically but claimed that he was still determined to complete his course at Victoria University: T111.26. Mr Mathews said that the problems which his parents faced meant that they could not provide him with further financial support which caused him some stress. Mr Mathews gave evidence that during his course he had technically failed subjects other than Business Law but he was given a borderline pass in some units including following sitting additional exams.
Mr Mathews appeared to me to have a reasonably poor recollection in relation to the timing of his various university courses and the results. However, he confirmed that he had difficulties with these exams in the period soon after the motor vehicle accident. Mr Mathews denied that his course was extended into the second semester of 2015 only due to his failure to pass his Business Law course in 2013 and not due to the accident. He said he was aiming to take the course during a summer break but was not able to do so due to problems arising from the accident. He denied that he would have had trouble working in the summer anyway because of his need to work full-time for income to support his living in Australia and his fees. Mr Mathews said he had a plan to complete the additional unit at the end of the other subjects in his course. He denied that he was simply attempting to blame the accident for the delay in his course due to his failure.
I found the plaintiff's evidence on this topic to be unsatisfactory. Both in his oral evidence in chief and initially in cross-examination, he confirmed that he had failed a course because of the accident. However, he gave contrary evidence that the subject was indeed failed prior to the accident and the accident had merely caused a delay in the course.
The plaintiff was then asked questions in relation to his studies at Basair. He said he was studying a Diploma in Aviation to obtain a commercial pilot's licence. He confirmed he did not finish the course or obtain the licence. He said this was due to financial reasons: T118.24. The plaintiff was asked whether he had held himself out as having a Diploma in Aviation or a commercial pilot's licence. The plaintiff said that these were included in his resume. It was put to him that it was untrue to state in his resume that he had a Diploma in Aviation or a commercial pilot's licence. The plaintiff said that he intended completing his studies to obtain them. In answer to the suggestion that it was patently untrue that he had a Diploma in Aviation or a commercial pilot's licence, the plaintiff said that he wanted to "showcase" his experience in flying and his studies: T119.39. He said he was trying to explain his experience and was not trying to lie.
In my view, any suggestion in a resume that the plaintiff had a Diploma in Aviation or a commercial pilot's licence was clearly untrue, as the plaintiff conceded. See the plaintiff's resume which is part of Exhibit 11.
The plaintiff was then asked questions as to why he had terminated his studies at Basair. He agreed that the evidence he had given in chief was that the reason he stopped his studies was purely financial: see T45.17. It was put to the plaintiff that he stopped his flying studies as he had failed his last commercial pilot's licence exam. The plaintiff denied this. He accepted that he had failed one theory exam but said that this did not prevent him continuing with his studies to obtain the licence and have a career in the flying industry. The plaintiff agreed that he had failed his last exam and had rebooked to undertake the exam and then re-scheduled it. He also accepted that he did not turn up to sit the exam on 14 November 2011: T122.12. The plaintiff said it was a theory exam and he did not sit it as he thought he was not ready for the exam. When it was put to him that he had issues with his confidence, the plaintiff repeated that he was not ready for the exam. The plaintiff said that he left Basair because of financial reasons: T122.26. The exam was one theory exam and following that he needed to undertake a number of flying lessons in order to obtain his licence. He said he did not have the money for the further flying training. The plaintiff accepted that the last formal interaction with Basair was a failed exam: T123.15. The plaintiff confirmed that he still wanted to become a pilot and that it was his "childhood dream": T123.45.
The plaintiff accepted that as time went on, although flying hours always remained valid, a person needed a "recency check" in relation to recent flying. He said flying cost time and money and the fees were $2,000 to $3,000 for a day of flying. He said the fees at the AH&B College at Bondi for the course which he took were $8,000 per year and he could pay off the fees whilst he was working.
The plaintiff accepted that he had left Basair for three years at the time of the accident and that he had not done anything in that period about updating his "recency" of flying experience. However, he said that his intention was to do the degree, get a job, save money and go back to flying. He said that the Bachelor of Business degree at Victoria University was about $8,000 per semester and about $2,000 per subject, being $32,000 all up but with flexibility to pay it over two years including on credit card. The plaintiff said he had some debt: T126.15.
The plaintiff agreed that certain occupations which were favoured for residency in Australia were occupations on the skilled occupation list. He confirmed that pilots were initially on the list but was not sure whether in 2011 the position of pilot went off the list. He said this was not relevant to any decision he made about not taking the flying lessons. He said he did consult immigration agents about relevant studies to assist him with citizenship. The plaintiff said that he obtained permanent residency in January 2018 and then obtained a Medicare card whereas prior to that he had had private health insurance with BUPA.
The plaintiff was then asked further questions in relation to the accident itself. He confirmed his evidence at T54 in relation to the movement of the vehicles. He gave evidence that when his vehicle was struck by the defendant's vehicle that it spun about 90° or thereabouts. He gave evidence that after being struck his vehicle turned and was facing the defendant's vehicle. The plaintiff was taken to Dr Roberts' report dated 7 May 2017 when he said that after being struck his car had spun 180 degrees. He said that was incorrect and it was only 90 degrees and that he had initially made a similar mistake when giving oral evidence in chief. He denied that his vehicle did not spin after being struck. He also denied that after being struck his car proceeded directly ahead. He agreed the photos in Exhibit B showed the damage to his vehicle. The plaintiff denied that the impact of the car accident was "very minor". He also stated that when he got out of his car after the accident and briefly spoke to the defendant that he only had a quick glimpse at the front of the defendant's vehicle and did not recall if there was damage to the front of her vehicle.
The plaintiff accepted that following the accident and having a quick word with the defendant that he moved his car to put it in a safe location. He said that he initially turned his car to the side of the road and then proceeded ahead and turned into another street before coming back and placing his car in Washington Avenue in order to exchange details with the defendant. By this time, he said the defendant had left in her car.
The plaintiff was taken to the report of Mr Ryan, physiotherapist, and it was put to him that he had told Mr Ryan that the accident did not delay his studies (Exhibit A page 114). The plaintiff said that by this time he had already received a pass because of medical reasons arising from the accident but also already knew that the accident had caused a delay in his completion of the course as he had previously explained. Mr Mathews emphasised again that the accident had caused a delay in him finishing his course. The plaintiff denied that saying the accident had caused a delay in the completion of his university course was patently untrue.
The plaintiff was then asked a number of questions about the accident notification form and the personal injury claim form. The plaintiff said that he checked the accident notification form and also knew that he had to be truthful in the personal injury claim form. He said he checked the claim form. It was pointed out to the plaintiff that in the claim form in answer to Question 14 (Exhibit A page 8) that the diagram drawn did not show the plaintiff's car spinning 90 degrees. The plaintiff accepted this was accurate and said that the diagram depicted the point of impact and not the position of his car after the impact. He said the diagram showed which directions the cars were going at the time of impact.
The plaintiff denied trying to create the impression that the impact of the accident was far greater than it was. The plaintiff accepted that the vehicle he was driving had airbags and they did not deploy in the course of the accident nor did he lose consciousness: T140.46. He also agreed that his vehicle was driveable after the accident. As the plaintiff's evidence was that the defendant's vehicle left the scene, it must also have been driveable.
The plaintiff was then asked a number of questions in relation to the physical symptoms which he asserted arose following the accident. The plaintiff was taken to T55.23 at which he claimed that his whole body was in pain and shock but predominantly the problems were with the chest, shoulder, the back and the upper body. The plaintiff said that immediately after the accident he had pain in the whole of his body and he could not isolate the location of the pain. He said that he was able to isolate the pain in his right shoulder a few days after the accident: T142.17. He denied that the assertion that he had pain in the right shoulder arising from the accident was untruthful.
The plaintiff was taken to his claim form at Exhibit A page 10 where he did not refer to right shoulder pain. The plaintiff asserted that this was because he understood he was giving only a brief summary description of the accident in the claim form. When it was put to the plaintiff that he did not refer to pain in the right shoulder because he had no pain in the right shoulder, the plaintiff denied that and said that the injuries referred to were the injuries he was focussing on. It was then asserted that the document was not in his handwriting. The plaintiff accepted that it was his responsibility to check the document and at that time he was focused on the chest pain. This was also the focus he said of the ambulance and hospital at the time: see Exhibit A page 14 (ambulance report) and Exhibit A page 15 (Royal Prince Alfred Hospital discharge referral).
The plaintiff confirmed that at the hospital he only complained of chest pain because he had a concern in relation to his heart: T145.45.
The plaintiff was then asked a number of questions about whether he first saw Dr Lam or Dr Matter following the accident. The plaintiff said he was still confused on this issue but had the impression that he saw Dr Matter after he saw Dr Lam as the former was busy: T146.29. He said he was confused by the date in Dr Matter's medical certificate. In the end, the plaintiff agreed that he saw Dr Lam first: T146.42. This issue will be considered further below.
When it was put to the plaintiff that when he saw Dr Lam on 22 October 2014 his only complaint was in relation to sternal pain not right shoulder pain, the plaintiff said that his whole focus at that time was on his chest pain. He said he had pain all over the body in addition to his chest pain. When it was put to him that he only mentioned chest pain to Dr Lam on 22 October 2014, the plaintiff denied it and he said he mentioned other parts of his body, but Dr Lam did not seem to think the other matters were important: T148.4. He said that that was one reason why he went to Dr Matter. He said that Dr Lam seemed to be focused on completing the documents and moving on: T148.15. When it was suggested to the plaintiff that he made no complaint to Dr Lam on 18 November 2014 in relation to neck pain or lower back pain, the plaintiff said that his focus was on his chest pain but he did recall complaining about his lower back and shoulder pain at some point to Dr Lam. He gave evidence that he told Dr Lam about other pain apart from his chest before his appointment in February 2015: T148.40.
The plaintiff was shown a patient registration form for the Wangee Clinic which was the clinic of Dr Matter. He agreed that he signed a patient registration form and dated it 11 December 2014 and in the light of that he agreed that he first attended Dr Matter on 11 December 2014: T149.43. This should be compared to the date of 13 October 2014 in the medical certificate signed by Dr Matter at Exhibit A page 13: see Exhibit 2.
The plaintiff denied the following propositions which were put to him: 1. The only injury he had in the motor vehicle accident was an injury to his chest; 2. That his evidence of subsequent pain in his right shoulder was untruthful; 3. That he had told his treating doctors that he had lower back pain and this was untruthful; 4. That his assertion of pain in his neck was untruthful; 5. That his assertion of anxiety and depression was untruthful: T153-4.
The plaintiff was taken to Question 24 in the claim form at Exhibit A page 10 which was to the following effect: "Have you had any other injuries or illnesses, before or after the accident, to the same or similar part(s) of your body?" to which the plaintiff replied "no". It was put to the plaintiff that this was untruthful. The plaintiff accepted that it was wrong but at that time he did not recollect that he had previously made a workers compensation claim. The plaintiff was then taken to his accident notification form where he stated that he had made a claim for personal injury compensation, workers compensation or other damages but added "not sure of details": Exhibit A page 2. The plaintiff said he could remember the claim at that stage but could not remember the details of it. He denied that he deliberately did not include an answer indicating a prior claim in the claim form. He said that he would not have included one answer in one form and a different one in another form unless it was accidental.
The plaintiff was then taken to Question 23 in the claim form at Exhibit A page 10 where he listed his doctors as Dr Matter and Dr Maniam. It was pointed out that he did not list Dr Lam and it was suggested to him that he intentionally omitted Dr Lam from the form. He denied this and said that Dr Lam was not a "treating doctor" whereas Dr Matter was a treating doctor. His assertion that Dr Lam had never treated him for anything is difficult to accept in the light that the entries in Dr Lam's notes for 22 October 2014 show that Dr Lam prescribed Voltaren Rapid tablets to the plaintiff. The plaintiff denied that he left out referring to Dr Lam as he knew he had only seen Dr Lam for complaints in relation to his chest.
The plaintiff was then subject to a detailed cross-examination in relation to his presentation to medico legal experts as opposed to the recreational activities which he undertook at the time. The plaintiff was taken to the report of Dr Lee following a consultation on 23 June 2015. Dr Lee states in his report that the plaintiff still had pain in the right shoulder and his back and "could only sit for 20 minutes" and "could not walk for five minutes or could not run or squat": Exhibit A page 47. The plaintiff said sitting still caused discomfort and he needed to move around. He said he could walk but it also caused discomfort. He said he could run but it caused discomfort. He said he had tried both since the accident and when he did them in the end they caused pain. The plaintiff was then taken to the report of Dr Home where the doctor records the plaintiff estimating a sitting tolerance of 20 minutes and a walking tolerance of 15 minutes before exacerbating back pain: Exhibit A page 29. The plaintiff said that he tried to avoid sitting for lengthy periods or walking for lengthy periods unless he had to.
The plaintiff then was cross-examined in relation to his recreational activities. He stated the following: 1. He had undertaken bushwalking in the Berowra Waters area with friends in the last month or two for just under two hours. He said it was a light to medium walk in terms of difficulty and it caused him a lot of discomfort. He said he carried a small backpack on the walk with water. Prior to this he said his last bushwalking was "a while ago" and he could not recall the details: T161.18; 2. He had attended swimming at Cronulla beach in the rock pool. The plaintiff said he was a non-swimmer and entered the water in safe areas. He said that he had tried swimming but it caused discomfort in his back. He said that his intention was to undertake swimming classes to improve his swimming but he could not do it because of back and shoulder pain. He said he went to swimming areas about once a fortnight in summer including to the rock pool at Cronulla for relaxation purposes; 3. The plaintiff said he did not undertake fishing; 4. The plaintiff conceded undertaking travelling for work interstate and also recreational travelling in and around Sydney: T164.13. He said his job required frequent travel to Melbourne and he often extended his stay over a weekend to see friends; 5. The plaintiff agreed that he used a "Go Pro" camera to take photographs which had been a gift from friends some two or three years ago. He said the Go Pro camera could be used underwater and was able to record recreational activity. The plaintiff confirmed that the majority of use of the Go Pro camera was on a stick which involved him using his right or left arm: T167.3. The plaintiff confirmed that he could raise his right arm above his head but it was painful to keep it there or push.
When the plaintiff was questioned whether he had described to Dr Parmegiani symptoms of persistent anxiety, recurrent and intrusive memories of the accident, waking at night in a sweat, feeling anxious when driving his flatmate's car and having a tendency to "freeze" if cars approached from his left, the plaintiff said that he had and still "occasionally" freezes on cars approaching him: T168.1; see Exhibit A page 40. However, the plaintiff says that he tries to push himself. He said he has permanent residency and a job and tries not to let these things hold him back at 28 years of age: T168.8.
The plaintiff was cross-examined in relation to his purchase of a motor bike following his car being a write-off in the accident. The plaintiff denied that the motorbike, a Kawasaki 250cc, was a "sport bike". He said that his car had been written off in the accident, he had little money, he needed to commute to work and he could only afford buying a motorbike: T168.17. When questioned about the use of the motorbike, the plaintiff said that it was primarily used to commute to work but that he did ride it on occasions through the National Park and on other rides including when he had his accident on 1 August 2015 where he hurt his right clavicle. The plaintiff stated that prior to the purchase of the motor vehicle which was shortly before the 1 August 2015 accident, he had used public transport or borrowed a friend's car when needed: T169.28. At the time of the 1 August 2015 accident, he had a learner's licence. He agreed that he liked motorbikes as he had ridden one in India and he was a motorbike enthusiast.
The plaintiff denied that when he attended Dr Parmegiani he attempted to present in a depressed state and said that he presented in his normal state. He said he had been very anxious since the motor vehicle accident and realised riding the motorbike made him vulnerable but said it was the best option for transport after his car was written off in the accident and when he had little money: T179.
The plaintiff was cross-examined in relation to other recreational activities and agreed that he had been on a wine tasting to Orange in October 2015, had been to a wedding in the Hunter Valley in September 2015 (as he was in the bridal party), had been on a week holiday to Kuala Lumpur in July 2015 where he had taken a bag, had ridden his motorbike from Sydney to Wollongong, had attended the rock pool at Maroubra, had gone on a walk to Bundeena in September 2016; and was able to take photographs of himself using a "selfie stick" with his right arm being extended in front of him away from his body: T175.
It was put to the plaintiff that he claimed he had a sitting tolerance of only 20 minutes but he was able to sit in the court for longer than 20 minutes. The plaintiff said that he had to do what he had to do and that sitting in court for lengthy periods had caused him some pain.
When it was put to the plaintiff that he could have bought a cheap car instead of buying a motorbike, the plaintiff said that you could not buy a reliable car for $2,000. He denied he was simply a motorcycle enthusiast taking up an opportunity to buy a motorcycle. He said it was his only practical option.
It was put to the plaintiff that he had not obtained any psychiatric help even though he had been working full-time for two years and had a Medicare card since February 2018. He said he was waiting for the case to finish to obtain treatment. He denied the suggestion that there was no severe psychological impairment arising from the accident.
The plaintiff was asked numerous questions by counsel for the defendant in relation to material which appeared on the social websites Facebook and Instagram. Extracts from the material appearing on accounts of the plaintiff on Facebook and Instagram became Exhibit 4 in the proceedings. The cross-examination was essentially to the effect that the plaintiff's Facebook and Instagram accounts showed that the plaintiff had an active social life including riding his motorcycle which was said to be inconsistent with the injuries and psychiatric condition put forward by the plaintiff in the proceedings. Examples included: 1. The plaintiff saw Dr Parmegiani on 8 October 2015 where he was diagnosed with post-traumatic stress disorder with secondary depression and complained of anxiety whilst travelling in a motor car, yet in October 2015 he drove his motorbike from Penshurst to Tom Ugly's Bridge in Sydney and filmed the trip with his Go Pro camera placed on his helmet. The plaintiff accepted that the ride was entirely recreational and occurred only shortly after seeing Dr Parmegiani where he complained of anxiety, but said that the trip was a fairly short one and he found being near the water relaxing. The plaintiff emphasised that his injuries did not stop him from living his life. The plaintiff denied that there was no difference in his physical abilities or emotional state following the accident; 2. The plaintiff was asked further questions about his motorbike accident on 1 August 2015 and the fact that he picked his motorbike up after it had fallen over. The plaintiff said he was in shock and picked up the motorbike despite his injury through an "adrenaline rush"; 3. The plaintiff was asked about a weekend at Batemans Bay in November 2014 and said he had no physical activity at the time and was driven by his friend; 4. The plaintiff denied he had an active social calendar but said that he did go out with friends for meals and drinking which he enjoyed. The plaintiff said that he ate out virtually every day for at least one meal as he was a poor cook. He said he was anxious if he sat alone for more than five minutes (T199.23) and was a volunteer for church activities but did not go out frequently drinking or clubbing: T199.26; 5. The plaintiff was asked about photographs of him at a bar on 18 March 2017. He said he was there with his manager and they were celebrating an event and had three to four hours there celebrating: see Exhibit 4 page 39; 6. The plaintiff was asked about a photograph showing him with a child. This was dated 24 October 2015. The plaintiff confirmed that he undertook babysitting for a friend for four hours and pushed the baby on the swing: see Exhibit 4 page 51; 7. The plaintiff was asked about a photograph on 23 November 2015 of him riding his motorbike at Sea Cliff Bridge which was taken by a Go Pro placed on his helmet. The plaintiff confirmed that he rode his motorcycle from Sydney to Wollongong on that day: see Exhibit 4 page 49; 8. The plaintiff confirmed that he attended an India/Australia cricket match on 23 January 2016 with friends and was present for at least three to four hours. While this involved being seated for a long time the plaintiff said he occasionally got up. When it was put to him that he had a seating tolerance of only 20 minutes on his evidence he said he did not miss out on opportunities with friends because of his injury: see Exhibit 4 page 48; 9. The plaintiff was asked about photographs showing him at a beach with friends on 8 February 2016: see Exhibit 4 page 47. The plaintiff said he attended the beach and went into the water but did not swim; 10. The plaintiff confirmed that he went to charity balls and to a stand-up comedy show; 11. The plaintiff confirmed that he went to the Yarra Valley for a social weekend to visit wineries in October 2016 and was able to take his own carry-on bag; 12. The plaintiff confirmed that he went with friends driving in 2017. When it was put to him that he had no anxiety driving he said that he still had anxiety every time he saw a car on his left approaching. The plaintiff confirmed that he tried to get away when possible and to make the most of his life with his friends as he did not like to be alone.
The plaintiff was asked questions about the last time he saw a general practitioner about his right shoulder. He said he had not seen a general practitioner about his right shoulder for a considerable period of time. He blamed the fact that the insurer would not pay for the medical visits and he had $15,000 in credit card debt with minimal savings: T205.23.
The plaintiff was asked questions about the medical expenses which he incurred when he broke his right clavicle in the motorbike accident. The plaintiff confirmed this cost and said he had broken his shoulder and had to get it fixed but he paid the anaesthetist $600-$700 over a one year period. The plaintiff denied that the reason he had not taken any steps to obtain treatment in relation to his right shoulder was because he had no pain in his right shoulder: T206.36. In relation to the plaintiff's willingness to spend money on social events, including an $80 ticket to a show, the plaintiff said that treatment was not given by general practitioners but by specialists who were considerably more expensive: T208.5. The plaintiff denied that the reason he had not seen a specialist with a referral from his general practitioner was because he did not have any reason to do so: T209.3. The plaintiff said he had a shoulder and back injury.
The plaintiff was then asked about his presentation to doctors. In relation to his consultation with Dr Keller, the plaintiff denied that he had deliberately restricted the range of motion in his shoulder when seeing Dr Keller. The plaintiff said he was asked to stop moving his arm when it began to be painful. He also denied exaggerating his pain when seeing Dr Roberts, the psychiatrist, on 1 May 2017.
The plaintiff was asked questions about his medical assessment for the purposes of extending his visa in 2015. The assessment became Exhibit 5 in the proceedings. The examination occurred on 7 October 2015. The plaintiff said he was truthful in the examination and realised that it was important to be so. The plaintiff was taken to that part of the assessment when in answer to issues relating to "prolonged medical treatment and/or repeated hospital admissions for any reason, including a major operation or psychiatric illness", the plaintiff had replied "yes" because of his right clavicle fixation but had not mentioned any other treatment. The plaintiff said that as at the date of the examination he had not received any diagnosis in relation to a psychological or psychiatric disorder including PTSD. He also said that he was not formally seeing anyone for treatment at that time. The plaintiff said that in relation to the reference to anxiety, depression and shock in the claim form at Exhibit A page 10, he regarded these as symptoms and had not received any formal diagnosis at the time of the assessment.
In answer to the suggestion that the plaintiff had not mentioned any physical injuries in the form, he said that the question related to prolonged medical treatment, major operations and repeated hospital admissions and he had received none of these in relation to his physical injuries. By that stage, no diagnosis had been made formally in relation to any psychiatric injury. It is noted that in the assessment (Exhibit 5) the plaintiff made no reference to health concerns, fatigue or night sweats.
The plaintiff was asked some further questions in relation to the details of the accident. It was put to the plaintiff that as he approached the intersection of Belmore Road and Washington Avenue that he was in the non-kerb lane of the two relevant lanes. He denied that and said he was in the left lane and proceeded through the intersection. This should be contrasted with the evidence of Ms Schuler, the defendant, who placed the plaintiff in the non-kerb lane of the two lanes going west. Mr Mathews denied going from the centre lane to the kerbside lane suddenly. It was put to the plaintiff that as he moved through the intersection he did not see the defendant's vehicle. He said that he saw the defendant's vehicle approach on the passenger side of his car almost at the time of impact. He also denied that the defendant's vehicle was slightly protruding out from Washington Avenue. He said he was keeping a proper lookout for cars at the time and was travelling about 40kph. He denied he was travelling too fast for the traffic conditions at the time as there was a green light, it was broad daylight and his speed was not too fast. He also denied that he was not keeping a proper lookout.
Mr Mathews was asked questions by counsel for the defendant in relation to the medical assessment conducted for the Department of Immigration and Border Protection in October 2015 which became Exhibit 5 in the proceedings.
Under the heading "Miscellaneous", the following was stated: "Are there any physical or mental conditions which may prevent this person from attending a mainstream school, gaining full employment or living independently now or in the future?", to which the answer was "no". The plaintiff said that the answer "no" was correct at that point as he had not been diagnosed with any condition as described. Whilst the plaintiff said that he understood that he had been diagnosed with a psychiatric condition and had relevant symptoms, he only had a vague idea about his condition. In particular, he did not know if any medical condition diagnosed would prevent him "gaining full employment" within the question. He denied that answering "no" was a false answer and said that he read questions carefully and regarded himself as suitable for full employment.
The plaintiff was then taken to the question at page 4 of Exhibit 5 which asked: "Are you taking any prescribed pills or medication (excluding oral contraceptives, over the counter medication and natural supplements)? Please list", to which the answer was "no". It was suggested to the plaintiff that on the very next day, 8 October 2015, he had told Dr Parmegiani that his medications at the time of the assessment "included Brufen, Panadol and occasionally Panadeine". The plaintiff said that he took Brufen "on and off". He said that he stated to Dr Parmegiani that he tried to avoid taking any medication at all. He conceded that he had told Dr Parmegiani that he was taking Brufen, Panadeine and Panadol: T301.20.
The plaintiff confirmed that he had taken Panadol on many occasions but said that the last time was probably about a month ago: T301.27. When it was suggested to the plaintiff that his current treatment was "absolutely nothing" in relation to his complaints, the plaintiff said he only took medication when it was "absolutely necessary", including painkillers: T302.7. When it was suggested to the plaintiff that he had told doctors that he was regularly taking Panadol, the plaintiff said that he did so when he was in excruciating pain: T302.12. The plaintiff said he last took Panadeine probably about two weeks ago: T302.39. He importantly conceded that he had last seen his GP Dr Matter in relation to his complaints arising from the accident over two years ago: T303.38.
The plaintiff was then taken to page 19 of Exhibit C, his chronology, which he had confirmed as correct in his evidence: T40.26. Exhibit C states at page 19 next to "current medication" that the plaintiff takes "Panadol 2×2 per day" and "Panadeine - one per week". As to this, the plaintiff said this was true when it was absolutely necessary because of severe pain. It is to be noted that there is no such qualification on page 19 of Exhibit C. The plaintiff accepted that Panadeine was now a prescription medicine and he had not seen a general practitioner in relation to the accident for over two and a half years: T304.35. He accepted that any Panadeine that he was taking must have been bought before Panadeine became a prescription drug. The plaintiff said that he had "bought a lot of drugs" including Panadeine prior to 1 February 2018. The plaintiff denied that he was being untruthful in relation to the taking of medication or that he was exaggerating his intake of medicine in order to advance his case: T305.32.
The plaintiff was then asked questions about his responses to an application for a temporary graduate or skilled regional visa which became Exhibit 6 in the proceedings. The plaintiff agreed that he had filled in the form shortly after February 2016 which was soon after his graduation. One question on the form asked whether the plaintiff expected to incur medical costs or require treatment or medical follow-up for "mental illness", to which the answer was "no". The plaintiff said that he was not sure at the time whether he would incur costs in relation to treatment as he had not been receiving treatment and could not afford to obtain specialist treatment for his injuries. The plaintiff confirmed that he had seen a copy of Dr Parmegiani's October 2015 report at the time he filled in the application for a visa form: T309.38.
The plaintiff was then asked a number of questions in relation to obtaining medical certificates for his accident notification form and his personal injury claim form: see Exhibit A pages 1-13. The plaintiff said that prior to completing the accident notification form on 6 November 2014 (Exhibit A page 4), he was informed by the NRMA that he should promptly make a notification of an accident in which he was injured. The plaintiff said he believed that Dr Lam was the first doctor which he saw for the purposes of obtaining a CTP medical certificate: T314.41. The plaintiff was then taken to his personal injury claim form and confirmed that he signed this on 18 February 2015: Exhibit A page 12. The plaintiff said he presumed that the claim form was lodged after the accident notification form from the dates. The plaintiff did not recall whether the medical certificate at Exhibit A page 13 was lodged with the claim form on or about 18 February 2015 but believed it must have been: T316.13.
The plaintiff gave evidence that the date on the medical certificate of Dr Matter being 13 October 2014 had caused him some confusion as to which doctor he had seen first. The plaintiff said that he did not know whether the medical certificate dated 13 October 2014 had been backdated by Dr Matter but he said he was there when Dr Matter was completing the form: T318.23. The plaintiff said he did not know whether he first attended on Dr Matter in December 2014 rather than in October 2014. When the plaintiff was asked whether he saw Dr Matter within three days of the accident, he answered that he saw both doctors just after the accident: T319.15. The plaintiff asserted that he had been given both the accident notification form and the accident claim form: T323.20. However, he accepted that he sent the accident notification form out first.
When it was put to the plaintiff that as at 13 October 2014 he had a blank claim form in his possession he said that he doubted it but it was a possibility. The plaintiff said he had obtained two certificates, one for work and one for the NRMA in their required form.
The plaintiff was asked questions about his referral to the Physio Rehabilitation Centre. He said he was referred for treatment and had two to three sessions. The referral was from Dr Matter. He stated that he was advised to have more sessions of physiotherapy but payment for them had been refused by the insurer. The plaintiff denied that he had received any advice at the Physio Rehabilitation Centre in relation to how to present to doctors for medicolegal purposes or of the desirability to have radiological investigations.
The plaintiff confirmed that he had consulted Brydens, solicitors, prior to seeing Dr Matter on 11 December 2014, as he wanted to understand his legal situation. He confirmed that according to the records he had been to see Dr Matter on 13 October 2014: T355.8. The plaintiff denied that he saw Dr Matter from 19 December 2014 onwards for the purposes of his CTP claim rather than for treatment: T355.19.
The plaintiff confirmed that he wanted to work as a pilot and that in his view the accident precluded him from becoming a pilot. He denied that there was no reason why he could not become a pilot. He said he regarded himself as not physically or emotionally able to fly a plane as a commercial pilot. When it was suggested to him that he had not obtained any treatment from a doctor for two and half years and that accordingly he was not interested in becoming a pilot, the plaintiff said that his claim was not finalised. He said that when the proceedings were finished he wanted to get back on with his treatment and move on with his life. He specifically denied that he was being deliberately untruthful about the reason stopping him becoming a pilot or that he could have done a lot more than he had for treatment. He said he wanted to seek treatment but the insurer had denied cover and he was not financially able to get assistance particularly from a specialist, which the GP had recommended, due to the cost involved. The plaintiff said that he could not afford seeing a specialist who he believed cost more than $400 per consultation to see. The plaintiff said that he had done everything possible for treatment within his financial limits and regarded himself as having "hit a wall". He said he hoped to obtain physical and emotional treatment for his injuries. He said he believed that in an interview for any job as a pilot with an airline, that his condition would "pop-up" in the interview and would stop him being accepted: T360.11. The plaintiff also stated that as a person who had done some flying he was quite aware what an airline interview involves: T360.25.
The plaintiff was then cross-examined in relation to his social activities and expenditure, particularly the expenditure revealed in his CBA Smart Access Account for the period from 1 November 2015 to 30 April 2017, which statements for that account became Exhibit 7. The plaintiff said that he had three bank accounts with the Commonwealth Bank and one needed to have a complete review of those accounts to understand his situation. The plaintiff confirmed that he had spent money on social activities in the period covered by the statements.
A review of the CBA Smart Access bank account statements shows regular social expenditure by the plaintiff including on meals, at hotels, for clothes and at the cinema. It was essentially put to the plaintiff that he had made his social expenditure a priority over his treatment expenditure. The plaintiff denied this and said that as a young man he had to get on with his life and could not afford treatment.

Oral evidence of Mr David Newling

The plaintiff called to give oral evidence Mr David Newling, a retired flight instructor. Mr Newling stated that he had 25 years' experience as a flight instructor from 1990 to 2015. He stated that he was an experienced pilot with experience on single-engine piston driven aeroplanes to 100 seat Jets.
Mr Newling said that he had been a flight instructor at Aerospace Aviation in the period from March 2009 to November 2009 on a full-time basis. During 2009, he stated that he was responsible for between 8 to 12 students. Over his instructing life he had about 3,500 flight hours of instructing. Mr Newling gave evidence that he was an instructor on the Aerospace Aviation course in 2009 to obtain a commercial pilot's licence. After obtaining a commercial pilot's licence, no more instructional flying hours were required but further theory courses were required to be undertaken. Once a pilot obtained a commercial pilot's licence they could go on to fly commercial aeroplanes.
Mr Newling gave evidence that he had instructed the plaintiff Mr Mathews in the period between March 2009 and November 2009 and saw him on four or five days of each week to assist him going through the components of the commercial flying course and teaching him. On some days Mr Newling spent between six and seven hours instructing the plaintiff.
Mr Newling gave evidence that the plaintiff was a motivated and dedicated student: T258.47. In the course of his instructing, he only recalled six or seven students who were as motivated and dedicated as the plaintiff. The plaintiff prepared thoroughly for navigation and often came back to Mr Newling and asked questions in relation to the proposed flight. Mr Newling regarded Mr Mathew's skill level in his training as at a very high level: T260.5. Mr Newling said all the students in the 2009 course that he recalled were from India. He said he left Aerospace Aviation in 2009 to go overseas. Mr Newling commented that he thought Aerospace Aviation charged extraordinary fees to students including extras for various things.
In cross-examination, Mr Newling agreed that from November 2009 he had no personal observation of the plaintiff's flying ability. Mr Newling said that he was only involved in instructing and not the financial aspects of the Aerospace Aviation business or enrolments. He said he did not know that the plaintiff was placed at Basair after he left Aerospace Aviation. Mr Newling said that he knew nothing about the plaintiff's personal financial position.

Oral evidence of Dr Anthony Lam

The plaintiff called Dr Anthony Lam. Dr Lam provided the medical certificate dated 18 November 2014 which was attached to the plaintiff's accident notification form. He also saw the plaintiff on a number of occasions in 2013 and 2014 and completed a request for medical information form which was sent to the defendant's insurer: Exhibit A pages 5 and 67-72.
Dr Lam gave evidence that he practised at Bankstown in Sydney. He confirmed that he first saw the plaintiff on 2 August 2013 and last saw him on 5 February 2015. He also confirmed that he saw dozens of patients a week and had no distinct recollection of the plaintiff and needed to refer to his notes. Dr Lam said he had not seen a medical certificate from Dr Matter dated 13 October 2014. He also indicated that he did not keep a copy of the request for medical information form sent to the NRMA in his records. In order to assist his evidence, a copy of the document at Exhibit A page 69 was sent to Dr Lam.
In cross-examination, Dr Lam said that his usual practice when seeing patients was to record any complaints made by them to him. He stated that this included recording complaints of pain as all presenting complaints should be recorded before any treatment was given.
Dr Lam was taken to his notes for 22 October 2014 where his notes revealed that upon examination the plaintiff was "tender in lower sternum". The plaintiff was complaining of mid-sternal pain. Dr Lam said his notes revealed that the examination showed that the plaintiff had a clear chest with no apparent injury. He said he referred the plaintiff for an x-ray of his sternum but it appeared that the plaintiff did not attend the x-ray as he did not receive any report.
Dr Lam stated that if the plaintiff had complained of right shoulder pain in the course of the consultation that he definitely would have recorded it in his notes: T282.16. This was similarly the position if the plaintiff had complained of low back pain or neck pain: T282.
Dr Lam said his notes did not record whether the plaintiff had seen another doctor before seeing him on 22 October 2014.
In relation to the entry for 24 October 2014 concerning a medical certificate for the plaintiff's university exams on 21-22 October 2014, Dr Lam said that he would have seen the plaintiff for the purposes of providing the certificate. Any certificate usually did not disclose the reason why the certificate was given for privacy reasons.
Dr Lam was taken to his entry for 18 November 2014. From his notes, he said the plaintiff was continuing to complain of lower sternal pain. He said that if the plaintiff had complained of right shoulder pain, neck pain, lower back pain, anxiety or depression at this time that he would have recorded it in his notes. He agreed that according to his notes the only complaint of the plaintiff on 18 November 2014 was of lower sternal pain.
Dr Lam was then asked about the consultation on 5 February 2015 with the plaintiff. He agreed that from his notes there was no complaint by the plaintiff in relation to right shoulder pain. He agreed that according to his notes this was the first time that the plaintiff had raised the issue of pain in his lower back. Dr Lam agreed that the plaintiff had mentioned Dr Matter at Punchbowl and that he had seen him for other investigations in relation to claimed injuries. Dr Lam confirmed that on 5 February 2015, according to his notes, the plaintiff made no complaint about anxiety or depression or neck pain. He confirmed that from his notes the plaintiff had denied any symptoms in his lower limbs. He said his practice was to ask this to determine if there was any compression of nerves.
Dr Lam stated that the letters "SLR" in his notes indicated "straight leg raising". The letters "NAD" indicated "no abnormality detected". He also did not detect any neurological abnormalities in the plaintiff on his examination. Dr Lam agreed that he only ever treated the plaintiff for lower sternal pain.
Following a contested application made on behalf of the plaintiff, leave was granted to the plaintiff to cross-examine Dr Lam pursuant to s 38 of the Evidence Act 1995 (NSW) on the basis that evidence given by Dr Lam had been unfavourable to the plaintiff.
Dr Lam confirmed that he had no independent recollection of dealing with the plaintiff other than from his notes and was relying on his notes. Dr Lam confirmed that he became aware in his consultation with the plaintiff on 5 February 2015 that the plaintiff had been seeing another general practitioner, being Dr Matter.
Dr Lam was then asked questions about the consultation with the plaintiff on 24 October 2014. It was put to him that there was no record of any symptoms which the plaintiff presented with during that consultation. Dr Lam said this was not necessary as the plaintiff was seeking a medical certificate for university exams for the period 21-22 October 2014. He said that the plaintiff had seen him on 22 October 2014 and on 24 October 2014 he had asked for a certificate for those dates. As he had seen the plaintiff on 22 October 2014 he was aware of his symptoms as at that date for the purposes of the certificate. He said he made no enquiries in relation to the plaintiff's health on 24 October 2014 or in relation to any additional symptoms.
Dr Lam agreed that on 18 October 2014 the plaintiff was still complaining about lower sternal pain.
Dr Lam was then asked about the request for medical information form from the NRMA which he signed and dated 10 February 2015: Exhibit A pages 69-72. Dr Lam agreed that a factor he took into account was a contemporaneous complaint of symptoms by a patient in the history given to him. He agreed that there was no record in his notes on 22 or 24 October 2014 of injury to the plaintiff other than to his sternum. Accordingly, Dr Lam agreed that it was difficult to relate any other injuries to the accident as there was no contemporaneous complaint of other injuries. Dr Lam confirmed that he had a difficulty relating the complaints mentioned by the plaintiff on 5 February 2014 to the accident but noted there had been a diagnosis by Dr Matter and said he had to respect the other doctor's diagnosis.
Dr Lam was asked about the reference in the form to the NRMA to the accident being a "low speed impact". He said he used this expression usually where there had not been a direct head on collision and if the accident did not cause serious injury: T382.3. He said he based it on the discharge summary from the hospital.

Oral evidence of Dr Aladdin Matter

The plaintiff called in his case Dr Aladdin Matter who had completed the medical certificate dated 13 October 2014 at Exhibit A page 13, and had seen the plaintiff for a number of consultations in 2014-2015. Dr Matter agreed that he was a general practitioner practising at Greenacre in Sydney and his practice had prepared a Patient Health Summary for the plaintiff. Dr Matter also agreed that it was his signature which appeared on the medical certificate at Exhibit A page 13 dated 13 October 2014.
In cross-examination, Dr Matter confirmed that he owned the Wangee Clinic at Greenacre where he conducted his practice. As at October 2014 Dr Matter said that he did not normally keep CTP claim forms as part of the practice documentation including CTP medical certificate forms: T334.
Dr Matter was taken to Exhibit A page 13 being the certificate which he filled out dated 13 October 2014. He confirmed that the proposed treatment plan involved a referral to Dr Manian, a specialist. Dr Matter was shown Exhibit 2, the Wangee Clinic registration form dated 11 December 2014 and signed by the plaintiff. He agreed that such a form was dealt with by staff at the front desk of his practice and as the owner of the practice, a patient was required to fill out the registration form, usually on their first attendance at the practice: T335.28. However, Dr Matter said that he disagreed that the plaintiff first attended his practice on 11 December 2014. He assumed that the plaintiff could not have filled out the form correctly on the first occasion and was asked to fill it out again but he was not sure of that: T335. He accepted that Exhibit 2 was filled out by the plaintiff on 11 December 2014, but denied that it was a possibility that the plaintiff first attended on his practice on 11 December 2014 essentially because of the consultation recorded in his practice notes and the date of the medical certificate at Exhibit A page 13: T336.25-338. He later said he was not involved in the completion by patients of the form.
Dr Matter accepted that on 11 December 2014 the plaintiff was referred for radiological investigation. He also agreed that on 13 October 2014 under the heading "management" there was a reference to "X-ray assessment". Dr Matter indicated that there was not a formal referral for x-rays on 13 October 2014.
Dr Matter said it was neither usual nor unusual for him to have recommended a patient to see a specialist like Dr Manian within two days of an accident. It depended on the particular situation and whether he thought that the specialist would be of additional benefit to the patient. Dr Matter denied that there was any inconsistency with his notes for 13 October 2014 concerning Dr Manian as he did not go ahead and refer the plaintiff to Dr Manian on 13 October 2014.
Dr Matter denied the possibility that the certificate dated 13 October 2014 at Exhibit A page 13 was backdated or that his clinical notes for the consultation on 13 October 2014 were backdated: T339.31-.37. Dr Matter said medical certificate forms like the one dated 13 October 2014 were supplied by the patient. Dr Matter said that it was usual for him to complete a medical certificate form and then give it to the patient: T341.41.
Dr Matter was asked whether on 13 October 2014 the plaintiff made any specific complaint of right shoulder pain and he said that it had not been referred to in his notes: T342.1. He also agreed that there was no complaint on 11 December 2014 by the plaintiff in relation to his right shoulder: T342.5.
Dr Matter confirmed that the patient notes were prepared whilst the patient was there and the medical certificate was completed and given to the patient. He also confirmed that all the writing in Exhibit A page 13 was in his hand: T342.19-.50.
Dr Matter denied that his job was simply to act on the subjective complaints of a patient. He said he took a subjective history, conducted his own examination of the patient and formed an opinion in relation to the patient's position based on his knowledge.
In re-examination Dr Matter was asked about the reference to "cervical spine spasm" in the medical certificate dated 13 October 2014. He said this was a reference to the muscles of the cervical spine being constricted and in spasm and unable to relax. He said that a spasm in the cervical spine could be observed and felt on examination: T345.45.
Dr Matter was also asked about the reference in his consultation notes to "neck and arm pains" on various dates including 22 December 2014, 20 January 2015, 28 January 2015, 29 April 2015 and 21 May 2015. He said he was unable to recall which limb was referred to by the notation.
Later, on 29 November 2018, Dr Matter gave further evidence about a second medical certificate signed by him and dated 13 October 2014 which became Exhibit H in the proceedings. This was slightly different to the medical certificate at Exhibit A page 13 as it referred to "Chest wall injury" and also to a referral to Mr Roger Barberi who was identified as a physiotherapist. It also referred to "cervical spine spasm" which was also referred to in Exhibit A page 13 but not Exhibit G, his consultation notes, which refer to "Diagnosis ? Cervical spine impingement". Other differences were noted. Dr Matter said he regarded the various documents as being not different in substance. He said he did not agree that the differences in the documents were material.
Dr Matter was forcefully cross-examined to the effect that Exhibit A page 13, Exhibit G (the 13 October 2014 notes) and Exhibit H were falsely backdated by him, which he denied. He also denied falsely claiming for consultations with the plaintiff on 28 October 2014 and 14 April 2015 where these are not referred to in the Exhibit G consultation notes: see Exhibit 8. He explained the existence of Exhibit H likely being due to the fact it was completed by him but the plaintiff then said the certificate had to be in the form of Exhibit A page 13. However, he had no recollection of this. Dr Matter accepted that Exhibit H was incorrect when it said the plaintiff had attended his practice for 1 year. This was his first consultation with the plaintiff.
I will discuss Dr Matter's evidence further below when I consider the reliability of the witnesses.

The defendant's oral evidence

Oral evidence was given by the defendant, Ms Jennifer Schuler.
Ms Schuler gave evidence in chief that she was 28 years old and lived at Riverwood. At the time of the accident on 11 October 2014, she had an unrestricted driver's licence and had been driving for about eight years. Ms Schuler gave evidence that she was familiar with the intersection at Belmore Road and Washington Avenue and had travelled through it hundreds of times on her way home.
Ms Schuler gave evidence that her car was driveable after the accident and on observation after the collision, there did not appear to be any damage to the front of her vehicle including the bumper bar. She later found out that there had been a puncture to the radiator in the accident which cost about $600 to repair.
Ms Schuler gave evidence that she was driving along Belmore Road and pulled into Washington Avenue to answer her phone. She then turned around and came back to the intersection of Washington Avenue and Belmore Road to drive home by turning right. She said she approached the intersection and stopped and put her right indicator on at the clearway: cf T232.34; T237.38. Ms Schuler gave evidence that on her right she noticed two cars backed up waiting to turn right into a nearby cross street called Hannans Road. The kerb lane on Belmore Road closest to her appeared to be clear apart from some parked cars and she did not see the plaintiff's vehicle. Ms Schuler gave evidence that a car which she identified to be the plaintiff's car came out from the middle lane into the kerbside lane and clipped the front of her car: T234.13. She said that the impact of the collision was not severe: T232.18. Ms Schuler later said that the plaintiff's car must have swerved and hit her car (T246.33) and that she was, as far as she could recall, stationary in her vehicle behind the dotted line where Washington Avenue met Belmore Road.
Ms Schuler said that she saw the plaintiff's car go down Belmore Road and pull up in the kerbside lane. She said she turned around and went back into Washington Avenue and waited for about five minutes and had a cigarette but the driver did not come back and therefore she left. She said she was not fined by the police who later saw her for leaving the scene. Ms Schuler said that she prepared a statement, which became Exhibit F in the proceedings. The statement included a diagram prepared by Ms Schuler which did not show the plaintiff's car swerving and hitting her car but going straight ahead.
Ms Schuler stated the following in paragraphs 17-27 of her statement: "17. After my conversation on the mobile phone I put my phone back in my bag then drove off turning around in Washington Avenue and headed back towards Belmore Road. I came to the T-intersection of Washington Avenue and Belmore Road and I stopped at that intersection. My intention was to make a right turn into Belmore Road. I was stopped at that intersection and I had my right blinker on. 18. I saw the traffic on my right on Belmore Road was stopped in the right lane of 2 lanes. The left lane of the 2 lanes along Belmore Road had parked cars. 19. I saw to my left the traffic lights at the intersection of Belmore Road and Hannans Road. The traffic lights at that intersection were green however the traffic in the right lane was backed up due to a right arrow being red. 20. Cars in the right lane of Belmore Road had stopped and there was a clearway at the intersection of Belmore Road and Washington Avenue free of any traffic. 21. I saw the driver of the first car stopped in the right lane of Belmore Road after the clearway motion to me to move forward into the intersection, indicating to me that it was safe for me to do so. I crept my car forward about 30cm and stopped again to get a better view of the traffic and to make sure that it was safe for me to enter the intersection. I moved forward initially because the driver of this first car in the right lane indicated to me to do so. 22. I then saw to my right another car that was travelling in the right lane of Belmore Road heading towards my direction. This car merged into the left lane squeezing through a gap past the parked cars and kept travelling towards my direction without slowing down. 23. This car then clipped the front bumper of my car as he passed me. I was not moving at this time. I estimate this vehicle was travelling about 40kms as he clipped my car. The left side of this car clipped the front bumper of my car. 24. I saw this car pull up about 10 metres further along on Belmore Road, pulling up in the left lane. 25. I got out of my car and went to the front of my car where I motioned to the driver that I would do a u-tum and come back into Washington Avenue and pull up as there was now another car behind my car in Washington Avenue and I was blocking its path. 26. I got back into my car and made a u-turn in the clearway section of the intersection and then pulled up on the opposite side of Washington Avenue where I originally had pulled up to make my phone call to my friend. I pulled up in the first space where I would not be in the way of traffic which was only 5 or 10 metres from the corner of the T intersection. 27. I got out of my car and looked up to where this other car had stopped in Belmore Road and I noticed this car was gone. I thought he was moving to a less busy section of the road and I waited. I had a cigarette whilst waiting, standing by the side of my car. I finished my cigarette about 5 minutes later and this other car had not shown up so I decided to leave. My vehicle was driveable and it did not require towing."
The statement signed by Ms Schuler was dated 3 April 2015. Ms Schuler later confirmed that when she signed the statement, the events described in it were fresh in her mind and that the statement and the diagram attached to it were accurate.
Ms Schuler was then subject to cross-examination. Ms Schuler was asked whether she recalled stopping her car prior to the marked line in Washington Avenue before she attempted to turn right. Ms Schuler said that she believed that she stopped before the white line but it was quite a few years ago at the time of the accident and she was not certain: T238.23-.50. She could not recall the distance that she had stopped before the broken line in Washington Avenue.
Ms Schuler stated that she did not recall exactly how many vehicles were queued on Belmore Road to turn right into Hannan's Road. She said that there were probably at least two vehicles queued. In answer to the suggestion that her memory was very poor of the accident, Ms Schuler said that she regarded it as a "non-event" and a minor accident which occurred many years ago: T240.38.
Ms Schuler confirmed in cross-examination that there was nothing obstructing her view up Belmore Road. She confirmed her evidence of the movements of the plaintiff's car. She said that she was struck whilst her vehicle was stationary and the plaintiff's vehicle gently scraped along the front of her car. At this stage Ms Schuler claimed that she was still stationary in her car behind the white line. When asked whether she was the innocent party in the accident she said that she did not know and did not believe that she had done anything wrong: T246.20. Ms Schuler gave evidence that the plaintiff "must have" swerved and that his vehicle travelled through the intersection quickly but not in excess of the speed limit which she understood to be 50kph: T246.46. Ms Schuler claimed that she was keeping a lookout and had a good line of sight. Ms Schuler said that she could not recall seeing the plaintiff's car the entire time and that the events were a long time ago. She could not recall the last time she saw the plaintiff's vehicle before the impact. The plaintiff's version was put to Ms Schuler. Ms Schuler denied entering the intersection with her vehicle before the collision but accepted that she could be wrong but it was not as she recalled it: T247.32.
Ms Schuler said that she could not recall receiving email correspondence from the plaintiff: T247.50. She accepted that she was told his car had been written off at some time: T248.9. She said that she did not recall that it was her vehicle who struck the plaintiff's vehicle: T248.29. She also denied that the impact was a significant impact and said it was only a "slight bump": T249.19. She confirmed that the area of the plaintiff's vehicle which was struck was the passenger side of the vehicle. She denied that the force of the collision was sufficient to spin the plaintiff's vehicle around: T249.33. She confirmed that the damage to the plaintiff's vehicle as shown in Exhibit B was consistent with her recollection of the accident: T250.17.
In answer to questions from the court, Ms Schuler said that she had a reasonable but not a good recollection of the events as it occurred a long time ago: T252-3.
In relation to the diagram which was part of Exhibit F, Ms Schuler confirmed that she had prepared the diagram herself in an attempt to draw the accident scene: T253-4. She agreed that her vehicle was depicted in the diagram as not being over the line. She also accepted that the diagram did not suggest that the plaintiff's vehicle swerved but rather proceeded in a straight line. However, she said it was a rough drawing: T254.28-.46. She did confirm that she was attempting to depict the movement of the plaintiff's vehicle in the diagram and that the diagram did not suggest that the plaintiff's vehicle swerved: T255.16-.32.
Ms Schuler appeared to the court to be an honest witness who was doing her best to recall the events relating to the accident. However, she conceded that the events occurred a long time ago and she had a reasonable recollection but not a good recollection of them. She claimed that her recollection was much better when she prepared her signed statement which became Exhibit F. In my view, Ms Schuler had some real difficulties remembering the details of the accident in the course of giving her oral evidence. The following matters should be noted in relation to Ms Schuler's evidence: 1. Ms Schuler's evidence was that she remained behind the white line the whole time and was struck while her car was stationary. She said that the plaintiff's car must have swerved into her car. However, such a swerving movement is not depicted in the diagram which was annexed to her 3 April 2015 statement and which became Exhibit F. Such a swerving manoeuvre is also not referred to in paragraphs 22-23 of the statement. I reject her evidence that the plaintiff's vehicle swerved and passed over the white line that Ms Schuler's vehicle was facing and clipped her car. I prefer the plaintiff's evidence on the vehicle movements; 2. There was no suggestion by Ms Schuler in her evidence that the plaintiff's vehicle was exceeding the speed limit at the time of the collision. Ms Schuler did not dispute that her vehicle was damaged in the accident, although it did not appear to be damaged when she first looked at it. She also did not dispute the damage to the plaintiff's car as shown in Exhibit B; 3. The suggestion that Ms Schuler had stopped her car behind the white line in Washington Avenue seems to be inconsistent with paragraph 21 of her statement where she states that: "I crept my car forward about 30cm and stopped again to get a better view of the traffic to make sure that it was safe for me to enter the intersection. I moved forward initially because the driver of this first car in the right lane indicated to me to do so"; 1. It seems that in order for the plaintiff's car to have clipped the front bumper of Ms Schuler's car as she indicates in paragraph 23 of her statement, at the least her car must have been over the white line to some degree unless the plaintiff swerved, which is inconsistent with the diagram; 2. Ms Schuler denied having any recollection of receiving an email from the plaintiff directly. However, she refers to this in paragraph 30 of her statement.
In my view, Ms Schuler's evidence should be rejected to the extent that she suggested she was stationary at all times behind the white line. The nature of the traffic at the time is more consistent with Ms Schuler attempting to enter the intersection and colliding with the plaintiff's car as it was driving past. However, the evidence of Ms Schuler and Exhibit B suggests that the collision was not a significant collision. I reject the plaintiff's evidence that the collision caused his car to spin around 90 degrees. I accept that the collision caused the plaintiff's car to alter its pathway slightly but not to the extent the plaintiff asserted. The fact that there was some damage caused to Ms Schuler's car suggests that a collision did occur consistently with the plaintiff's evidence and Exhibit B. She did not deny that.

Oral evidence of Ms Anne Nielsen.

The defendant called Ms Anne Nielsen who is a qualified paramedic and was a paramedic with the New South Wales Ambulance Service as at 11 October 2014, the date of the accident. Ms Nielsen gave evidence that she had 10 years' experience as a paramedic and was of five years' experience at the time of the accident in question. Ms Nielsen stated that she prepared the New South Wales Ambulance Service Patient Health Care Record which was at page 14 of Exhibit A. This is dated the day of the accident.
Ms Nielson's attention was drawn by counsel for the defendant to the sticker which is on the care record document. Ms Nielsen gave evidence that this sticker meant that the patient (the plaintiff) had declined being transported to a hospital with the ambulance. Ms Nielsen said that she did not have any independent recollection apart from what appeared in the record in relation to what occurred at the scene of the accident. Even reading the document she said that it did not refresh her memory.
Ms Nielson was asked about her practice at the time in relation to filling out the record cards. She stated that when they arrived with the patient they recorded their first set of observations and the chief complaint of the plaintiff. The patient was examined from head to feet and was palpated for injuries and any pain was recorded. Ms Nielsen indicated that her usual practice at the time was to record any pain complaints of the patient. Ms Nielson's attention was drawn to a diagram of a human figure appearing on the record card. She stated that as at the day of the accident if the patient complained of pain or had contusions she would put an arrow to the area with the marking of T for tenderness and L for laceration. The fact that there were no markings on the diagram of the human body on the record indicated to her that no injuries were complained of at that time or any pain. The recording to the left indicated that the plaintiff was complaining of chest pain.
In relation to the entry "low-speed MVA" on the record, Ms Nielsen stated that if no witness volunteered information, her practice at the time was to ask the patient how fast they were going at the time of the accident. She saw no reason now as to why she would not have followed her normal practice at the time. Ms Nielsen gave evidence that she usually looked at the patient's vehicle to determine any damage. The entry "nil damage to Pt car" indicated that her observation of the plaintiff's vehicle revealed no damage. The record informed Ms Nielsen that the patient declined being taken to hospital by the Ambulance Service and that he was left in the care of police.
In cross-examination, Ms Nielsen confirmed that she had no independent recollection of the accident. She said the notation "low-speed MVA" indicated that the collision had been at a speed of less than 50kph. Ms Nielsen was asked whether she had any recollection of inspecting the vehicle. She said she did not but for her to make the notation "nil damage to Pt car" she would have looked at the car. If she had noted minor damage she would have written the notation "minor damage" as it was a legal document. She said she had no involvement with the plaintiff after the accident and had been at the scene of the accident for about 20 minutes.

Medical evidence relied upon by the plaintiff

The plaintiff tendered a bundle of documents including medical reports and records.

Medical certificate prepared by Dr Matter

I have already referred above to the medical certificate provided by Dr Matter dated 13 October 2014: see Exhibit A page 3.

Opinions and notes of Dr Lam

I have also already referred to the medical certificate provided by Dr Lam on 18 November 2014: Exhibit A page 5. Prior to Dr Lam providing this medical certificate, the plaintiff had seen Dr Lam on a number of occasions as outlined above. Dr Lam's medical notes were in evidence. The notes include the following relevant entries: 1. 22 October 2014 - The notes record that the plaintiff had been involved in a motor vehicle accident on 11 October 2014 when he was the driver in a car which was hit from the passenger side by a vehicle turning right. The notes continue: "Since accident has been c/o mid sternal pain worse with deep breathing." On examination, Dr Lam recorded that the plaintiff was tender in his lower sternum. The reason for contact was recorded as "sternal pain". Voltaren Rapid was prescribed; 2. 24 October 2014 - The plaintiff was reviewed by Dr Lam. The reason for contact was described as a general consultation. Dr Lam said this was for the plaintiff to obtain a medical certificate in relation to the plaintiff's university exams; 3. 18 November 2014 - The plaintiff saw Dr Lam who recorded that he was continuing to complain of lower sternal pain. The notes record: "claiming 3rd party to pay for expenses". The reason for contact was recorded as sternal pain; 4. 5 February 2015 - The plaintiff was reviewed by Dr Lam. The notes record that the plaintiff's chest pain resolved in December 2014. The notes continue: "Claimed that was also c/o pain in lower back after the accident but was more concerned with chest pain so failed to mention. Back pain became worse in early Dec, saw Dr Matter in Punchbowl who sent patient to CT brain/neck and lumbar spine, which found diffuse L5/S1 disc bulge. Patient was referred to physio. Patient denies any symptoms in lower limbs." The reason for contact was described as a motor vehicle accident.
Exhibit A also contains a request for medical information form by NRMA Insurance which was completed by Dr Lam on 10 February 2015. Dr Lam stated in the form that his medical diagnosis of the plaintiff was muscular skeletal injury to the anterior chest with localised tenderness in the lower sternum. Dr Lam noted that Mr Mathew's first presentation in relation to the motor vehicle accident was on 22 October 2014 at which he mentioned his anterior chest pain. Dr Lam recorded that no other injuries were mentioned. He also referred to the later consultations on 18 November 2014 and 5 February 2015. In relation to the complaint of lower back pain on 5 February 2015, Dr Lam stated that the plaintiff claimed it was due to the motor vehicle accident but Dr Lam stated his opinion that it was not so related because the accident was a low speed impact. He did not see any correlation between the physiotherapy treatments for the lower back and the accident. Dr Lam did not see the plaintiff's problems as impacting on self-care domestic duties but noted that he was not able to sit for an exam in late October 2014: see Exhibit A pages 69-71A. Exhibit A also contains a fitness certificate given by Dr Lam on 10 February 2015 and a fitness for work certificate dated 9 March 2015. Dr Lam recorded that the plaintiff was fit to resume work as of 24 October 2014 with no restrictions: Exhibit A page 73.

CT scans 11 December 2014

In evidence was a report relating to CT scans of the plaintiff's brain, cervical spine and lumbar spine following a complaint of severe headaches. No brain abnormality was noted in the report. Similarly, no abnormality was identified in the plaintiff's cervical spine. In relation to the lumbar spine, minor disc bulges were noted at the L4/5 and L5/S1 levels. The disc bulge at L5/S1 contacted both S1 nerve roots and the report stated that it "could potentially result in sciatica in the S1 distribution bilaterally". The bulge at L4/5 was described as "a small diffuse broad-based disc bulge". The bulge at L5/S1 was described as "a diffuse broad-based disc bulge".
Later reports, which will be considered, did not see the bulges as significant.

Ultrasound right shoulder

Dr Matter referred the plaintiff for an ultrasound of his right shoulder. The plaintiff was examined on 29 April 2015. The report of Dr Mahalingam noted that there was no rotator cuff tear or tendinopathy. The report referred to "probable sub-acromial/sub-deltoid bursitis with sonographic evidence of impingement". It was noted that the bursa was prominent measuring 3mm in thickness and the plaintiff's pain was in keeping with the impingement. A mild AC joint degenerative change with capsular hypertrophy was also noted.

Reports of Michael Ryan, physiotherapist

The plaintiff was reviewed by Mr Michael Ryan, physiotherapist on 25 March 2015. Mr Ryan provided a detailed report dated 22 April 2015: Exhibit A page 109. Mr Ryan recommended a limited course of specific physiotherapy rehabilitation to try to provide the plaintiff with every opportunity of improving his reported level of symptoms. The history the plaintiff provided to Mr Ryan was that after the accident he felt some shock and felt that his entire body was in pain with significant chest pain and a feeling of panic. The plaintiff stated to Mr Ryan that for a few days he felt his whole body was in some degree of pain with increasing lower back pain, neck pain and also right shoulder pain together with headaches. He also felt ongoing anxiety and what he described as panic attacks: Exhibit A page 112. The plaintiff identified his ongoing back pain as his primary concern with significant pain reported across the lower back region. The plaintiff noted that his lower back symptoms seemed to be getting worse as opposed to improving. Right sided neck pain extending to the right shoulder and arm were also noted. The plaintiff stated that he still experienced headaches although his chest pain had essentially settled. The plaintiff stated that he continued to feel what he described as anxiety and panic attacks.
Examination by Mr Ryan of the plaintiff's right shoulder saw a moderately reduced range of movement but external rotation was well maintained. Movements of the right shoulder were associated with reports of an increase in right sided neck pain, although Mr Ryan could not detect any particular abnormality in the right shoulder. No abnormality was detected through the right upper limb through from the elbow to the hand. An active range of movement in the lumbar spine was noted as being moderately reduced with significant fear avoidant and pain behaviour demonstrated.
Mr Ryan provided his diagnosis as follows: "Mr Mathews presents now with some persistent but benign musculoskeletal pain in the lower back and right neck and shoulder girdle region without any clinical or radiological evidence of significant neuro-orthopaedic pathology and with no evidence of any cervical or lumbar radiculopathy or local shoulder orthopaedic pathology. Mr Mathews presents with a high level of pain focus and fear avoidant behaviour with evidently quite a high level of self-reported anxiety about his ongoing symptoms. It is my expectation that Mr Mathews should achieve a full recovery with the passage of time with some very specific and well directed physiotherapy rehabilitation, particularly within a context of cognitive behavioural therapy approach".
Mr Ryan said that he could see no physical reason why the plaintiff could not enjoy a full and lasting recovery. Mr Ryan stated his view that the symptoms were consistent with the motor accident. He stated: "Mr Mathews presents now with symptoms consistent with benign musculo-ligamentous injuries resulting in persistent pain through the lower back region and the right side of his neck extending through the right shoulder girdle but I could not find any clinical evidence of any discrete or localised shoulder pathology or radiculopathy in the neck or back. His symptoms are consistent with benign musculo-ligamentous injuries which have now become persistent and entrenched …"
As stated, a short course of physiotherapy rehabilitation was recommended as being reasonable.
Mr Ryan noted that the plaintiff reported that he had approximately one week off work since the accident on sick leave and then returned to work and has continued working since.

Reports of Dr Y K Lee

The plaintiff relied on three reports of Dr Y K Lee, Orthopaedic Surgeon.
Following an examination on 23 June 2015, Dr Lee provided a report dated 10 July 2015. The history provided by the plaintiff to Dr Lee for the purposes of his first report relating to the accident indicated that the plaintiff told Dr Lee that he noticed soon after the accident pain in the whole of his body especially in the chest and the right shoulder region as well as pain in the lower back. He stated that he saw his local doctor who concentrated on the chest although later he went to see his general practitioner because of his back pain and right shoulder pain. He said he was not referred to have physiotherapy because he did not get approval and only started physiotherapy recently. He said he took one week off work with some additional odd days off as required. The plaintiff said that in the last few weeks before he started physiotherapy his right shoulder was very painful. The plaintiff indicated that he still had pain in the right shoulder region and his back and could only sit for 20 minutes. He noted that lying down aggravated the pain.
The plaintiff indicated to Dr Lee that his intention was to earn enough money so that he could continue flying and eventually become a pilot. He said that he had not flown since the accident. The plaintiff stated that he had returned to driving but was still apprehensive whenever he saw a car coming on the side and he had some nightmares about the accident initially and sometimes wakes up because of pain.
On examination, Dr Lee noted tenderness in the lumbosacral region with muscle spasm and stiffness in the back. Examination of the shoulder showed there was tenderness in the posterior lateral shoulder. Examination of the cervical spine showed that the plaintiff had a full range of movement with no tenderness. Dr Lee expressed the opinion that the plaintiff had injured his lumbosacral spine and right shoulder at the time of the accident and that this had caused persistent back pain and also pain and stiffness in the right shoulder. Dr Lee's diagnosis was intervertebral disc injury of the lumbosacral spine. He also expressed the opinion that the plaintiff had a rotator cuff injury to the right shoulder resulting in pain and stiffness. This seems to be inconsistent with the ultrasound of the plaintiff's right shoulder which excluded a rotator cuff tear. Dr Lee gave a guarded prognosis stating the plaintiff is likely to have continued back pain and right shoulder pain and stiffness. He also noted that the plaintiff may require further physiotherapy. Dr Lee expressed the opinion that the plaintiff did not require surgical treatment for the back injury but would likely require surgery to the shoulder. Dr Lee said that the plaintiff was only allowed to work 20 hours per week but his back would be sore if he worked full time.
In his second report dated 1 August 2016, Dr Lee reported after reading reports from Drs Keller, Home and O'Toole.
Dr Lee agreed with the conclusion of Dr O'Toole that the probability for the plaintiff of passing the physical examination to become a commercial pilot was virtually zero.
Dr Lee disagreed with Dr Keller's finding in his report in relation to the plaintiff's right shoulder that he could not find any impairment. He also disagreed with Dr Keller's conclusion in relation to the plaintiff's back injury. He stated that Dr Keller noted stiffness in the plaintiff's right shoulder but he appeared to disregard the finding.
In his third report dated 4 April 2018, Dr Lee referred to a further examination of the plaintiff on the same day. He had been provided with extensive further documentation including reports from Drs Home, Keller (three reports) and O'Toole and Mr Ryan. He also noted that the plaintiff had suffered a motorcycle accident on 1 August 2015 and required internal fixation on 21 August 2015. He noted that the plaintiff still complained about right shoulder pain and stiffness and back pain but stated that his neck pain had improved. The previous injury in 2012 to his right shoulder was noted as well as the recovery from it.
Dr Lee conducted an examination of the plaintiff. Dr Lee noted not much tenderness in the cervical spine but some tenderness in the lumbar sacral spine. He noted little tenderness in both shoulders. Dr Lee expressed the opinion that his findings in 2018 were quite similar to the findings in 2016. In relation to the injury to the plaintiff's right clavicle in August 2015, Dr Lee noted not much deterioration of his shoulder. His diagnosis was of a mild intervertebral injury to the lumbosacral spine with soft tissue injury to the shoulder, probably the rotator cuff. He said he no longer recommended surgery to the right shoulder and that surgery to the back was not necessary. In relation to the plaintiff's suitability medically to be a pilot, he expressed the opinion that the plaintiff's right shoulder was not agile enough for him to reach some of the instruments effectively and he did not think he was fit to become a commercial pilot.

The plaintiff's motorcycle accident

As stated, the plaintiff fractured his right clavicle in a motorcycle accident on 1 August 2015.
The records of Sutherland Hospital show that the plaintiff presented to the Emergency Department on 1 August 2015. At the follow-up on 15 August 2015, the plaintiff complained of significant pain and loss of range of movement due to pain: Exhibit A page 140. The fracture was confirmed in an x-ray: Exhibit A page 158.
On 21 August 2015 the plaintiff was operated on by Dr Smith who performed an open reduction and internal fixation of the right clavicle: Exhibit A pages 208-213. In a review on 8 September 2015, Dr Smith noted that the wound was well healed and the plaintiff could do unrestricted below shoulder height active range of motion activities.
In a review on 8 December 2015, Dr Smith noted a good range of motion although the plaintiff noted that he had occasional severe pain over the lateral clavicle. In a review on 18 August 2015 Dr Smith noted that the plaintiff had normal power of all motor branches of the upper limb. On 29 September 2015 Dr Smith noted a good passive range of motion and stated that the plaintiff could do unrestricted above shoulder activities: Exhibit A page 217.

Report of MAS assessor Dr E Parmegiani

Dr E Parmegiani, psychiatrist, undertook an assessment of the plaintiff on 8 October 2015 for the purposes of a MAS assessment. The doctor considered the plaintiff for the purposes of a permanent impairment assessment in relation to post-traumatic stress disorder with secondary depression. The certificate and reasons of Dr Parmegiani were in evidence: Exhibit A page 36. Dr Parmegiani took a history from the plaintiff which included that there had been no personal history of psychiatric illness prior to his involvement in the October 2014 accident. The plaintiff told Dr Parmegiani that he had not used antidepressants after the accident but had physiotherapy. He provided an employment history and a background social history to the doctor. The plaintiff told Dr Parmegiani that a personal relationship had broken down three months before the 8 October 2015 examination due to frustration because of his "mood swings and financial stress".
The plaintiff was recorded as saying to the doctor that prior to his involvement in the accident he felt well and was working part-time while also attending university three days per week. The history of the motor accident given by the plaintiff to the doctor was similar to his evidence in chief. The plaintiff said that he felt dizzy and experienced severe chest pain and that his right shoulder hit the door heavily as the accident unfolded.
The plaintiff reported attending Royal Prince Alfred Hospital in relation to his chest pain and stated that since then he had experienced ongoing pain in the back and right shoulder for which a course of physiotherapy provided him temporary relief only. He told Dr Parmegiani that he was unable to afford payment for further specialist consultations with Dr Maniam.
Dr Parmegiani recorded that the plaintiff noted numerous psychological symptoms after the accident including persistent anxiety, recurrent and intrusive memories of the accident, waking at night in a sweat, feeling anxious in driving his flatmate's car, feeling tense, irritable and unable to relax and having a number of panic attacks. The plaintiff mentioned the motor bike accident in August 2015 and having surgery but reported the bike fall "had not been a scary accident" and that it had happened at low speed.
The plaintiff continued to complain of low back pain and pain in the right shoulder. In relation to the psychiatric perspective, Mr Mathews described being worried and having an anxious mood with decreased reactivity and a lack of pleasure. Dr Parmegiani recorded: "Mr Mathews worried about his future and the eventual outcome of his physical injuries. He often reflected that he had wasted a lot of money on his flying lessons, because he believed that due to the persistent symptoms of chronic pain he will remain unable to pursue commercial pilot work. Mr Mathews stated that sometimes he felt that his life was not worth living, but denied experiencing suicidal ideation or thoughts of self-harm. He reported that he experienced recurrent and intrusive memories of the accident "all the time", as well as flashbacks … He experienced interruptions [in his sleep] due to pain and nightmares. He described himself as a restless and sweaty sleeper."
Dr Parmegiani noted that the plaintiff's affect was mildly depressed.
Dr Parmegiani recorded that the plaintiff reported symptoms of post-traumatic stress disorder. Dr Parmegiani described the plaintiff as a fair and reasonable historian and that the symptoms of post-traumatic stress disorder complicated by secondary depression, were understandable within the context of the accident. Dr Parmegiani expressed the opinion that the accident constituted a valid criterion for a potential diagnosis of post-traumatic stress disorder. He expressed the opinion that the plaintiff clearly described the emergence of symptoms consistent initially with an acute stress reaction and later with post-traumatic stress disorder. Dr Parmegiani stated, however, that the severity and number of the symptoms were not sufficient to justify a diagnosis of major depression. He also expressed the opinion that there was a clear connection between the involvement in the accident and the development of the psychiatric symptoms and it was the only identifiable causal factor for the psychiatric condition which he identified.
In the end, Dr Parmegiani expressed the opinion that post-traumatic stress disorder and secondary depression were conditions held by the plaintiff and were caused by the motor vehicle accident. His also stated that from a purely psychiatric perspective, he expected that the plaintiff's condition would continue to improve slowly over time and that he would benefit from specific psychological or psychiatric treatment. He stated that he regarded his condition as having stabilised.

Report of MAS assessor Dr Alan Home

The plaintiff attended on 15 December 2015 Dr Alan Home for the purposes of a MAS assessment. Dr Home considered the plaintiff's back and shoulder injuries. Dr Home had read Dr Parmegiani's assessment. The plaintiff denied any past history of back or shoulder complaints, which is inconsistent with his earlier shoulder accident in 2012: Exhibit A page 28.
A description of the motor car accident was given which is consistent with the plaintiff's oral evidence in chief. He told Dr Home that within a week of the accident he developed more prominent neck and back pain and the chest pain eased. He said that he was referred to a physiotherapist and had several sessions and since then managed his pain with analgesia. The motorcycle accident in 2015 resulting in a broken right clavicle was referred to. The plaintiff told Dr Home that he had since regained previous motion (immediately prior to the motorcycle accident) of the right shoulder.
The plaintiff described to Dr Home constant variable pain in the right shoulder, felt at the top of the shoulder with sometimes radiation of pain down the arm. He denied neck pain and any restriction of motion. He also referred to back pain with limited sitting and walking tolerances.
Dr Home undertook an examination. The examination of the cervical spine was effectively normal. No abnormality was found in the left shoulder. As to the right shoulder, there was mild restriction of active motion with mild pain. Dr Home said the plaintiff was consistent with his clinical presentation. The radiological evidence including the CT scans and the ultrasound of the right shoulder were reviewed. Dr Lee's report dated 10 July 2015 was also reviewed. Dr Home noted an improvement in range of active motion of the right shoulder since the examination of Dr Lee. Dr Home also referred to Mr Ryan's 22 April 2015 report and Dr Keller's report dated 27 July 2015.
Dr Home concluded the following injuries were caused by the accident: 1. As to the lumbar spine, soft tissue injury. Dr Home noted an underlying disc degeneration at the L4/5 and L5/S1 levels with disc bulging at both levels. This conclusion rules out a connection between the disc bulging and the accident: Exhibit A page 32; 2. As to the right shoulder, Dr Home was satisfied that the plaintiff sustained soft tissue injury to the right shoulder in the accident with continuing pain; 3. As to the left shoulder, Dr Home was satisfied that the plaintiff had early complaints of pain in the left shoulder but had gone to make a full symptomatic recovery. No abnormality on examination was noted and a diagnosis of soft tissue injury having resolved was made.

Report of Dr R O'Toole, occupation and environmental physician

The plaintiff tendered a report of Dr Robin O'Toole dated 30 June 2016: Exhibit A page 58. This was admitted over objection from the defendant. Dr O'Toole is a designated aviation medical examiner for the Civil Aviation Safety Authority. He has extensive qualifications and experience which he confirmed in his oral evidence. Dr O'Toole did not examine the plaintiff personally. He was requested to undertake an assessment of the plaintiff's file in his capacity as a consultant occupational physician and designated aviation medical examiner. Dr O'Toole confirmed that his assessment and recommendations were based upon only the information that was presented to him. That information included the CT scan report dated 11 December 2014, the report of Dr Akkerman, psychiatrist, dated 25 June 2015, the report of Dr Lee dated 10 July 2015, the report of Dr Keller dated 27 July 2015, the report of Dr Parmegiani dated 30 October 2015 and the report of Dr Home dated 2 February 2016. There is no reference in the report to the motorcycle accident.
Dr O'Toole was provided with the plaintiff's background history in relation to his aviation studies and that he had accumulated in excess of 230 hours of flying time throughout his training with Aerospace Aviation.
Dr O'Toole reviewed each of the reports in some detail. The conclusions and recommendations of Dr O'Toole were in summary as follows: 1. The plaintiff was involved in a motor vehicle accident on 11 October 2014 with resultant injuries to his chest wall, cervical spine, lumbar spine and right shoulder. Additionally, he suffered a psychological injury diagnosed as post-traumatic stress disorder with secondary depression. While there were different assessments of the plaintiff, Dr O'Toole stated that "what remains is ongoing signs and symptoms of a psychological disorder and physical symptoms relating to restricted range of motion in the right shoulder and decreased capacity for sitting, standing, and mobilising due to lumbar spine symptoms."; 2. He stated that the role of a commercial pilot would require the plaintiff to have "a full range of motion of his shoulders, and an unimpaired ability to sit for extended periods of time." He referred to the controls in a commercial plane being in positions surrounding a pilot including overhead; 3. He stated that in his experience providing assessment aircrew fitness for all the major airlines, Mr Mathew's current physical limitations "would prevent him from being able to safely perform the essential requirements of the role"; 4. Mr Mathews still remains symptomatic at the date of his report with post-traumatic stress disorder. He expressed the opinion that there remains significant and foreseeable risk of exacerbation of Mr Mathews' psychological condition should he undertake the role of a pilot; 5. He concluded in the light of the relevant matters that it would be "unlikely" that a commercial airline in Australia would consider the plaintiff to be able to safely perform the requirements of the role of a commercial pilot, and would therefore be unlikely to offer him employment in that position"; 6. He also expressed the view that it was likely that the plaintiff's psychological condition would prevent him from holding an unconditional Civil Aviation Safety Authority Class 1 medical certificate which would pose a significant barrier to him gaining employment as a commercial pilot as such a certificate was required for a commercial aviation pilot in Australia; 7. He noted that airlines were moving towards a more thorough psychological analysis of their aircrew and that the plaintiff's psychological condition would likely pose a significant barrier to his progression through recruitment; 8. Importantly, Dr O'Toole expressed the following opinion: "the probability of Mr Mathews passing the medical tests/examinations conducted by commercial airlines before he could be certified fit to fly is very low, and quite possibly, zero"; 9. I examine Dr O'Toole's oral evidence below.

Medical evidence of the defendant

The defendant relied on a number of medicolegal reports for the purposes of the proceedings.

Report of Dr J Roberts, psychiatrist

The defendant relied on a detailed medical report dated 7 May 2017 of Dr Roberts, psychiatrist. This followed an examination of the defendant by Dr Roberts on 1 May 2017.
In the consultation, the plaintiff referred to the motor vehicle accident in October 2014 and listed his current physical complaints as including difficulty with his right shoulder, back problems and pain in lifting or sitting for more than a short period. The plaintiff also asserted that he had sleep disturbances secondary to pain and headaches. The plaintiff stated that if he was anxious the headaches would extend and his pulse rate would increase.
The plaintiff noted that while driving he was very anxious particularly if someone approached him from the left-hand side where his vehicle had been hit by the defendant's car. The plaintiff stated that he developed anxiety and headaches post the accident, that he was "hyper" and that he had been short tempered in his mood. He regarded his anxiety and short temper as impacting on his capacity to have a relationship. He also noted feeling anxious. In his history the plaintiff revealed his motorcycle accident and the injury to his shoulder in 2012.
Dr Roberts then set out symptoms of panic disorder, post-traumatic stress disorder, generalised anxiety disorder and acute stress disorder.
The plaintiff affirmed memory and concentration problems commenting that lately he had been forgetting matters and leaving his keys in the letterbox. Dr Roberts noted that Mr Mathews was able to give a detailed chronological history without reference to notes. He also expressed the opinion that his current role with the Lynch Group was inconsistent with cognitive impairment. The plaintiff affirmed chest tightness and discomfort with anxiety. However, Dr Roberts noted that the plaintiff had stated that awareness of the characteristics of the heartbeat had only been present for 8 to 10 months which was unconnected to the accident. Dr Roberts noted that the plaintiff had a high blood pressure reading which suggested hypertension. Dr Roberts noted an overall paucity of symptomatology elicited.
Dr Roberts undertook a physical examination to look for inappropriate responses as would be found in malingering/factitious disorder and noted exaggeration by the plaintiff in relation to back pain.
Dr Roberts concluded from his consultation that Mr Mathews' mental state was "unremarkable in all respects and he displayed no abnormality in terms of his mental status, consistent with a psychiatric diagnosis."
Dr Roberts relied on the observation by the ambulance officer that no damage was done to Mr Mathews' car in the accident which indicated the accident was of an extremely limited degree which was relevant to the diagnosis of post-traumatic stress disorder. This description by the ambulance officer was contrary to the plaintiff's evidence in chief and appears to be inconsistent with the photographs of the plaintiff's damaged car which became Exhibit B. The plaintiff noted that due to the damage, the car was not repaired and was sold for its scrap metal value.
Dr Roberts said he disagreed with the reports of Dr Akkerman and Dr Parmegiani. He again emphasised that there was no evidence of any damage to the plaintiff's car in the accident. Dr Roberts appeared to see this as significant. As stated above, it is inconsistent with the evidence: see pages 14-15 of Dr Roberts' report. Dr Roberts commented: "A motor vehicle accident that does not cause any evidence of visible injury, produces no anterograde or retrograde amnesia and which results in no damage being done to the vehicle, would not be anticipated as being a stressor that would meet the stressor criteria for either post-traumatic stress disorder or acute stress disorder."
Dr Akkerman's report was also criticised (this was not in evidence before me).
Dr Roberts said in summary that he was unable to make a psychiatric/psychological diagnosis based on the motor vehicle accident. Again, on page 16 of his report he referred to the accident as being of such a trivial degree that the ambulance officer commented on the absence of any damage to the plaintiff's vehicle.
Dr Roberts said that no psychiatric treatment was required and as there was no condition present it would not impact upon employment. No assistance was stated as being needed by the plaintiff.
Dr Roberts includes as a postscript to his report that since dictating the report he had been provided with photographs of the damage to the plaintiff's vehicle "which shows trivial damage". He said it did not alter his opinion and he confirmed that the accident was "of a minimal nature from which no psychiatric sequelae would be expected to arise."
I will consider this aspect of Dr Roberts' report further below.

Reports of Dr A Keller

The defendant relied on four reports of Dr Andrew Keller, occupational physician.
In his first report dated 27 July 2015, Dr Keller refers to an examination occurring on the date of the report of the plaintiff. The history given by the plaintiff was consistent with his oral evidence. He denied to Dr Keller any prior neck, back or shoulder injuries, investigations, treatments or insurance claims contrary to the 2012 admitted shoulder injury. The plaintiff reported lower back pain and right shoulder pain as well as headaches and panic attacks on a frequent basis. Limited sitting, standing and walking tolerances were described. Dr Keller noted that the plaintiff walked unassisted and without a limp and sat comfortably in a chair for at least 40 minutes during the consultation.
Dr Keller noted on his examination that there was a demonstrated restricted range of motion in the right shoulder which was inconsistent and variable within the assessment. He noted a full range of motion in the lumbar spine and cervical spine with no signs of radiculopathy in the upper or lower limbs.
Dr Keller gave his impression that Mr Mathews may have suffered a soft tissue injury to the chest with or without a panic attack on the day of the motor vehicle accident but there was no current evidence to suggest any persisting pathology in the neck, chest, lumbar spine or right shoulder. Dr Keller expressed the opinion in his first report that any effects of the motor vehicle accident were fully resolved. He expressed the opinion that the current complaints of lower back pain and right shoulder pain cannot be attributed to the motor vehicle accident and the plaintiff had no current treatment needs. He expressed the opinion that Mr Mathews did not suffer any spinal injuries, concussion or other injuries in the accident except for his chest pain following the accident. No further treatment, investigations or medication were needed including no further physiotherapy. Similarly no home assistance was needed.
Dr Keller expressed the view that there was no medical reason why the plaintiff could not travel to work by public transport after the accident and he was of the view that he was quite fit to perform his preinjury duties.
In relation to the report of Dr Lee dated 10 July 2015, Dr Keller said that his findings on examination were at variance to Dr Lee's findings. Dr Keller said that all injuries arising from the accident had fully resolved.
In his second report dated 16 July 2016, Dr Keller was provided with substantial additional documentation. Dr Keller's opinions did not change. In particular, he had a different opinion to that set out in Dr Lee's report of 1 August 2016. Dr Keller said that at the time of his assessment he could find no consistent restrictions in the right shoulder or lower back and he did not alter his opinion.
In his third report dated 17 July 2017, Dr Keller stated that in his 2015 assessment he noted an inconsistent restriction of motion in the right shoulder of the plaintiff, consistent with exaggerated incapacity.
In the fourth report of Dr Keller dated 10 April 2018, Dr Keller noted a further examination of the plaintiff on 5 April 2018. Dr Keller stated that the plaintiff reported that he had developed lower back pain and right shoulder pain one week after the accident. He also reviewed the 29 April 2015 ultrasound of the plaintiff's right shoulder. He again clarified his past medical history to refer to the 2012 shoulder injury in relation to which the plaintiff reported a full recovery.
Dr Keller referred to the plaintiff's report of constant sharp right shoulder pain and constant lower back pain aggravated by prolonged sitting or prolonged walking. On examination Dr Keller was of the opinion that the plaintiff's cervical spine was normal; he had a full, symmetrical range of motion; there was no spasm; the inspection of the lumbar spine was normal with mild tenderness reported to light palpation over the lumbosacral junction and there was a full symmetrical range of motion in the lumbar spine.
Dr Keller noted that on examination there was restriction of motion in the right shoulder although the movement was greater than the plaintiff demonstrated on the last assessment, despite the subsequent pathology in the right shoulder. Dr Keller noted that after considering the further history he would not alter his opinion.
Dr Keller stated that the plaintiff presented in a forthright manner without signs of exaggeration. He noted mild restriction of motion in the right shoulder but no restriction of motion in the cervical or lumbar spine and no signs of radiculopathy in the upper or lower limbs.
Importantly, Dr Keller concedes that it is possible that the plaintiff also suffered the delayed onset of lower back pain in the accident but expressed the opinion that this would relate to a simple soft tissue strain in the lumbar spine with no evidence of bony or disc injuries attributable to the accident and with no abnormal physical findings on the assessment for the purposes of the fourth report.
Dr Keller noted that the plaintiff's prior and subsequent right shoulder conditions were more likely to be the cause of his ongoing complaints. He stated that there appeared to be no objective evidence for any injuries attributable to the accident that required ongoing medical treatment. However, he noted that some restriction in reaching or lifting with the right arm may be attributable to the plaintiff's clavicular fracture and its surgical fixation in 2015.

Credit issues relating to the witnesses

I make the following findings in relation to credit issues concerning the various witnesses. In doing that, I have taken into account the submissions made by the parties on this issue.

Mr Newling

Mr Newling gave his evidence in a straightforward and direct fashion. He was an impressive witness. He had extensive dealings with the plaintiff as his flight instructor in 2009. I accept Mr Newling's evidence as accurate and find that he was a witness of truth. However, obviously his evidence has limitations as it related to the plaintiff's position as a student a decade ago.

Ms Nielsen

Ms Nielsen was the ambulance paramedic who attended at the scene of the accident at the request of the plaintiff. Ms Nielsen had no recollection in relation to her attendance and relied on the patient healthcare record report. She confirmed that this report was in her handwriting. Ms Nielsen was direct in her evidence and I accept that she was a witness of truth.
However, the notation in her report "nil damage to Pt car" is inconsistent with the photographs of the plaintiff's car which became Exhibit B and the evidence of the plaintiff and the defendant. I reject her evidence on this issue. Ms Nielsen did not arrive at the scene until shortly after 8pm at night. It may be that having regard to the time, she did not notice the damage to the plaintiff's car. I accept Ms Nielsen as a witness who was doing her best to explain her practice in the light of the patient healthcare record.

Dr O'Toole

Dr O'Toole gave a medico-legal report in relation to the plaintiff based on other medical reports without having examined the plaintiff personally. He gave his oral evidence by telephone.
In my view, Dr O'Toole's evidence was convincing and I accept his evidence. Dr O'Toole had very impressive experience and qualifications as a doctor specialising as an occupational and environmental physician including in aviation medicine (see Exhibit A page 66A). He has worked for the Royal Australian Air Force both in Australia and overseas including at various air bases. This employment was both as a full-time Air Force medical officer and as a Reserve Officer. He also stated that he had extensive experience in private practice over the last 11 years including as an assessing medical practitioner for air pilot licences for the Civil Aviation Safety Authority. It was accepted that a person could not fly as a commercial pilot in Australia without a Civil Aviation Safety Authority ("CASA") 1 pilot's licence. Although Dr O'Toole agreed that ultimately airlines made the decision whether to hire a person as a commercial pilot not the examining doctor, he said he had feedback at conferences from airline staff about hiring decisions and practices which assisted him in expressing the opinions as stated in his report. This limitation clearly goes to the weight of his report.
Dr O'Toole, said that the psychiatric symptoms alone of Mr Mathews disclosed in Dr Parmegiani's report were very important in expressing his opinions. This was because Mr Mathews was still suffering from ongoing symptoms and had no active management plan in place. The conditions diagnosed were relevant to a person's focus, concentration and response abilities. Similarly he stated that the physical symptoms alone were significant to his opinions because of the significant force involved in landings and take-offs and the need for use of limbs in the access to and reach for aircraft controls. I accept this evidence. I note that there is no evidence the defendant has had any psychiatric treatment since Dr O'Toole's report.
In cross-examination, Dr O'Toole gave the following evidence: 1. He had never been employed in the Human Resources Department of any airline. He had never decided at an airline whether to employ someone as a pilot. The ultimate decision whether to employ a pilot was that of the airline but it had a duty of care to ensure safety and there were high standards as to safety matters and margins of error; 2. The ultimate decision as to whether a person obtained a licence was that of CASA; 3. A CASA 1 licence could be granted conditionally (for example, the pilot had to wear glasses) or unconditionally; 4. He had no expertise in psychological or psychiatric matters. If they arose in a consultation, the proposed pilot would be sent to a doctor with expertise in that area and the matter would then often come back to him for discussion; 5. Whilst the CASA 1 standard was the minimum prescriptive standard for pilots, airlines may require further tests, for example for drugs and alcohol; 6. He had undertaken about 10 CASA Class 1 examinations in the last 12 months; 7. Airline requirements for pilots may be different including within an airline depending on whether the pilot is required for domestic flights, long haul flights or larger size aeroplanes with different reach surfaces in the cockpit; 8. Improvement in a person's conditions, such as the plaintiff's, following treatment, could mean that a CASA 1 licence could be granted. It depended on the status of the improvement, the time the condition was asymptomatic and the persons' current position. Fitness to deal with an emergency situation physically and psychologically would be needed. Dr O'Toole agreed that he could not rule the plaintiff out forever as being unsuitable for a commercial pilot's licence. Mild discomfort in the shoulder would not rule the plaintiff out from gaining a licence provided he had a full arc of arm movement; 9. He accepted that it was likely persons with disc bulges and back aches had CASA 1 pilots' licences. He accepted it was possible people with mild shoulder bursitis had CASA 1 licences but he stated that sometimes pilots voluntarily stood down because of their condition.

Dr Lam

Dr Lam completed the medical certificate attached to the accident notification form: Exhibit A page 13. He also had a number of consultations with the plaintiff after the accident: Exhibit A pages 67-68.
Dr Lam gave evidence by telephone. Dr Lam had no recollection of his consultations with the plaintiff and relied on his notes. Dr Lam gave his evidence in a straightforward and direct fashion and made concessions where appropriate. I accept him as a witness of truth.

Dr Matter

Dr Matter was the plaintiff's general practitioner who completed a medical certificate for the plaintiff dated 13 October 2014 which is attached to the plaintiff's personal injury claim form: Exhibit A page 13. Dr Matter's Patient Health Summary for the plaintiff which included a computer record of his clinical notes became Exhibit G in the proceedings and confirmed a consultation with the plaintiff on 13 October 2014. This appears to have been the first consultation with the plaintiff recorded. Dr Matter had a number of consultations with the plaintiff in 2014 and 2015 as recorded in Exhibit G.
Dr Matter gave oral evidence and was cross-examined in detail by counsel for the defendant on two occasions. A significant issue in the case is the accuracy of the date on Dr Matter's 13 October 2014 medical certificate and consultation records. Counsel for the defendant made detailed written submissions in relation to Dr Matter's evidence.
As stated above, the defendant made much of differences between Exhibit A page 13, Exhibit G and Exhibit H. Exhibit A page 13 and Exhibit H both purported to be medical certificates relating to the plaintiff signed by Dr Matter on 13 October 2014. It was noted that Exhibit A page 13 did not refer to the plaintiff's chest wall injury. There were other differences in matters noted on examination and different terms used for diagnosis (even where all were said to be given on the same day). Cross-examination also occurred in relation to two consultations on 28 October 2014 and 14 April 2015 which Dr Matter billed BUPA for where there were no corresponding clinical records in Exhibit G. Dr Matter conceded there were no clinical records for these consultations but said that he would not have billed BUPA unless he had seen the plaintiff. The defendant put to Dr Matter that he had falsely backdated the records dated 13 October 2014; had seen the plaintiff not in October 2014 but in December 2014; and had sent false invoices for consultations which had not occurred on 28 October 2014 and 14 April 2015. Dr Matter denied this and said he did not back date the records and would not have sent invoices unless services had been provided.
The defendant submitted: 1. the 13 October 2014 records of Dr Matter had been backdated; 2. consultations did not occur on 28 October 2014 and 14 April 2015 as the services were not billed until much later (Exhibit 12) and there were no clinical records of these examinations. This reflected, it was submitted, significantly on Dr Matter's credit and reliability; 3. the differences between Exhibit A page 13, Exhibit G and Exhibit H were significant; 4. it is unlikely that these differences would exist if the documents had been prepared on the same day as the dates suggested; 5. the court should find that Dr Matter did not examine the plaintiff on 13 October 2014 and it was likely that the first examination of the plaintiff occurred much later in December 2014; 6. Dr Matter's records should not be regarded as reliable. I take this to be a direct attack on Dr Matter's reliability and credit. This was later confirmed.
The submissions made by the defendant in relation to Dr Matter are very serious. I take into account s 140 of the Evidence Act 1995 especially s 140(2)(c) and the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 360-361 in considering this issue. This does not require clear or strict proof of fraud or intentional backdating but rather indicates that "a court should not 'lightly make [such] a finding": Nguyen v Tran [2018] NSWCA 215 at [59]-[64] especially at [63].
In my view, Dr Matter gave his evidence in a direct and straightforward fashion and made concessions where appropriate. He rejected the possibility that the medical certificate or his notes could have been backdated. He also rejected the possibility of invoicing for services which were not provided to the plaintiff.
In my view, in the light of his oral evidence, Dr Matter should be accepted as a witness of truth. He made concessions where appropriate and gave evidence of his practice in relation to the completion of medical certificates and his consultation notes (that they are completed in the patient's presence) which was convincing. Overall, I found him to be an honest and impressive witness.
In considering the defendant's submissions, I take into account: 1. Dr Matter had no recollection of the consultations. He relied on his clinical notes; 2. The incorrect reference in Exhibit H to the plaintiff being a patient for a year. This was the first time the plaintiff had seen Dr Matter. However, I note Exhibit A page 13 refers to less than a year; 3. The lack of consultation notes in Exhibit G for the 28 October 2014 and 14 April 2015 consultations. This is strange and regrettable. However, the notes in Exhibit G refer to a proposed consultation on 28 October 2014; 4. The variations in the records relating to symptoms and diagnosis for 13 October 2014; 5. The patient record document being dated later; 6. The invoice date submission records: Exhibit 12. However, I note a number of consultations with Dr Matter for various dates were processed by BUPA on 27 January 2015. In my view, this does not establish that the alleged earlier consultations in October 2014 did not occur.
These matters taken individually and together, did not satisfy me to the requisite standard referred to above that Dr Matter had acted falsely, had knowingly backdated records or was simply unreliable in his records. The dates in Exhibit A page 13 and Exhibit H have been added by hand by Dr Matter. Exhibit A page 13 and Exhibit H relate to the same date. The date is confirmed by Exhibit G. Dr Matter said he had no interest in the result of the plaintiff's case. The suggested backdating actions would require a carefully planned and orchestrated action. Overall, having observed him carefully whilst he was giving his oral evidence (on two occasions), I accept his evidence as truthful. I reject the defendant's submissions as to Dr Matter. It is quite possible to have inconsistent references in medical notes and certificates. Dr Matter said that descriptions of symptoms may be different or two conditions can co-exist. I accept that evidence.

Ms J Schuler - the defendant

I have already made comments in relation to the evidence of the defendant, Ms Schuler, above. Ms Schuler gave oral evidence and was cross-examined. She conceded that she only had a reasonable, as opposed to a good, recollection of the accident. She asserted, however, that she had a good recollection when she completed her statement which is Exhibit F.
The defendant has conceded liability in the proceedings. Despite this, Ms Schuler appeared to me to be attempting to downplay any fault on her behalf in relation to the accident. In particular, I do not accept her evidence that the plaintiff must have swerved in his car and clipped the front of her motor vehicle as she was sitting stationary in it behind the line at the intersection. This version is inconsistent with the diagram which is attached to her statement which is Exhibit F. The plaintiff swerving in his motor vehicle was not put to him in cross-examination by counsel for the defendant.
Overall, I think some real caution should be exercised in accepting Ms Schuler's evidence on some important issues. While in my view she was not being deliberately false in her evidence and was attempting to assist the Court, she appeared to be downplaying her role and trying to point the finger of blame at the plaintiff. I will consider the circumstances of the accident in more detail further below.

Mr Aylwin Mathews - the plaintiff

The plaintiff gave oral evidence over a number of days. He was extensively cross-examined by counsel for the defendant. His credit was attacked on many bases by counsel for the defendant in his careful and detailed submissions, including his written submissions dated 28 March 2019. In making my findings as to the plaintiff's credit, I take into account the seriousness of the allegations made against him by the defendant: see Nguyen v Tran [2018] NSWCA 215 at [59]-[63] and s 140 of the Evidence Act 1995.
Whilst the plaintiff appeared on some issues to be an honest and straightforward witness who was doing his best to assist the Court, there were many matters of concern in relation to his evidence generally: 1. On a number of occasions, the plaintiff did not answer questions shortly and directly but attempted to give answers which assisted his case. This may have been partly out of frustration at the length of the cross-examination and the allegations made against him. However, I find that wherever possible, the plaintiff attempted to put his case in the best possible light. In my view, the cross-examination was thorough and not unduly lengthy; 2. The plaintiff was willing to be misleading in his resume. Under the heading "Education", the plaintiff includes: "2009-2011 Diploma in Aviation with Commercial Pilot Licence, Basair Aviation College, Bankstown": see Exhibit 11. In my view, the clear impression from this entry in the resume is that the plaintiff had completed a Diploma in Aviation with a commercial pilot licence. The plaintiff conceded in cross-examination that he did not have a Diploma in Aviation or a commercial pilot licence: T119.32. I reject the plaintiff's explanation that he wanted "to showcase" that he had done flying training and flying studies: T119.39. The entry in the resume is, in its context, in my view clearly incorrect and misleading and reflects poorly on the plaintiff's credit; 1. The plaintiff gave evidence in chief that he failed a subject after the motor vehicle accident which caused a delay in completing his studies: T62.43; T76.7-.20. In cross-examination, Mr Mathews confirmed his evidence in chief that he failed a subject after the accident: T105.3. The plaintiff's academic transcript which became Exhibit 1 in the proceedings shows this evidence to be incorrect. The only subject which the plaintiff failed was Business Law which he failed prior to the motor vehicle accident in the second semester of 2013. The plaintiff was extensively cross-examined on this issue: T105; T109. The plaintiff changed his evidence on this matter. Eventually, his evidence was that the motor vehicle accident delayed his graduation because he was not able to repeat the failed subject in a summer school: T107.35; T108.21; T109.9, T117.16. I do not accept the plaintiff's evidence on this issue. It seems from the plaintiff's evidence that he needed the summer vacations to work in order to sustain him financially during the year: cf T117.11-.29. What is clear, is that the plaintiff did not fail a unit after the accident but failed the unit before the accident. It is therefore incorrect to say that the motor vehicle accident caused him to fail a unit. This reflected poorly on the reliability of the plaintiff's evidence; 1. The plaintiff was asked questions about his medicine taking. The plaintiff conceded that he had not seen a general practitioner for treatment in relation to any injuries arising from the motor vehicle accident for over two years. In Exhibit C, the chronology which the plaintiff confirmed to be correct (T40.26), the plaintiff sets out his "current medication" as being "Panadol 2×2 per day; Panadeine - one per week". There are various references to the plaintiff's medication in medical reports and in other documents in evidence. In Exhibit G, the Patient Health Summary for the plaintiff from Dr Matter's practice, extensive medications are referred to as being "current medications". The Summary was printed on 14 October 2016 and various pain medication was prescribed for the plaintiff in a consultation on 21 May 2015. Similarly, in Dr Parmegiani's report it is stated that the plaintiff's medications at the time of assessment included Brufen, Panadol and occasionally Panadeine. In the report of Dr Roberts dated 7 May 2017 the following is stated: "Medication at the time of attendance was stated to comprise pain relief in the form of Panadeine, namely a medication containing codeine and paracetamol, as required". In his oral evidence, the plaintiff was taken to his medical assessment on 7 October 2015 which became Exhibit 5 in which he stated he was not taking any prescribed pills or medication, yet the very next day he apparently told Dr Parmegiani that he was taking Brufen, Panadol and occasionally Panadeine: Exhibit A page 37. The plaintiff said that he was taking Brufen as a medication "on an off" (T301.8), had last taken Panadol probably a month ago (T301.27) and had taken Panadeine probably two weeks ago (T302.39). In my view, this evidence is inconsistent and in particular, the plaintiff's chronology which is Exhibit C is misleading on the plaintiff's own oral evidence. The plaintiff said that he avoided taking painkillers unless it was "absolutely necessary": T302.7. This is completely inconsistent with Exhibit C and the history provided to Dr Parmegiani. 1. The plaintiff gave evidence that he had a number of physical restrictions arising from injuries caused by the accident. This evidence should be compared with the extensive evidence of the plaintiff's social activities, photography and motorbike riding which is in Exhibit 4. The plaintiff gave evidence that he did not just sit at home but went on with his life to the best he could and that he was a young single man. That may be accepted. However, the extent of the plaintiff's activities means caution must be exercised in relation to accepting his evidence of his alleged considerable restrictions; 2. In his record of responses in his application for a visa (Exhibit 6), the plaintiff stated that he did not expect to incur medical costs or require treatment or medical follow-up for "mental illness". However, by this time the plaintiff had read the report of Dr Parmegiani which diagnosed PTSD with secondary depression: Exhibit A page 36. The plaintiff confirmed in his oral evidence that when he filled in Exhibit 5 he had seen the report of Dr Parmegiani: T309.38. It is clear that the plaintiff was trying to put forward the best appearance for the purposes of his visa application. No doubt he wanted to remain in Australia. However, the plaintiff said that he hoped to have treatment for his asserted psychological condition and at the time he completed his responses in Exhibit 5 he was clearly aware of Dr Parmegiani's diagnosis of a mental illness.
The above matters indicate to me that I should be very cautious in considering the plaintiff's evidence. The plaintiff gave inaccurate evidence on a number of occasions as outlined and in my view was at all times trying to put his case in the best possible light to advance it. Other instances are also relied upon in the defendant's written submissions. The reliability of the plaintiff's evidence on important issues needs to be carefully considered. However, I do not accept the defendant's detailed submission, having seen the plaintiff give evidence over several days, that he "is a person who is prepared to lie whenever he perceives it is to his advantage": defendant's written submissions dated 28 March 2019 paragraph 8. I consider the plaintiff's evidence on various issues further below.

Submissions of the parties

The plaintiff prepared written submissions and also made oral submissions. The plaintiff's submissions in chief, in general summary, were as follows: 1. Liability is admitted by the defendant; 2. The allegation of contributory negligence should be rejected. There is no evidence to support it. There is no evidence to properly support the allegation that the plaintiff left his carriageway and entered into the road surface on Washington Avenue; 3. The court should accept that the plaintiff's childhood dream was to become a pilot, he wished to become a pilot, he embarked on the appropriate training to become a pilot and he was an excellent aviation student (based on Mr Newling's evidence): written submissions paragraphs 19, 22-26, 28-36; 4. The plaintiff should be accepted as a witness of truth and his evidence as to the circumstances of the accident should be accepted: written submissions paragraphs 38-48; 5. Any injuries sustained prior to the accident had healed well before the time of the accident: written submissions paragraphs 49-55. The plaintiff had no relevant prior psychological history: written submissions paragraphs 56-58; 6. The plaintiff's evidence as to the injuries he received in the accident should be accepted; 7. Dr Matter's evidence should be accepted, particularly as to the 13 October 2014 consultation: written submissions paragraphs 62-65; 8. The independent MAS assessors' reports of Dr Home and Dr Parmegiani are detailed, thorough and should be accepted: written submissions paragraphs 75-91; 9. The court should conclude that but for the accident the plaintiff would have completed his commercial pilot's course and entered the workforce as a pilot some time in 2015: written submissions paragraph 92; 10. Significant damages should be awarded for loss of future earning capacity on a buffer basis: written submissions paragraphs 93-98.
The defendant also provided thorough written submissions and made oral submissions. The defendant's submissions, in general summary, were as follows: 1. The plaintiff should not be found to be a witness of truth. On the contrary, the court should find he was person who is prepared to lie or mislead when he perceives it to be to his advantage. The issue of the plaintiff's credit is of prime importance in determining the issues in the case. The significant credit matters relating to the plaintiff are set out in the Credit Issues Table which is Annexure A to the defendant's written submissions dated 28 March 2019. It should be found that the plaintiff gave false and/or inconsistent evidence in a number of significant areas including his progress at University before and after the accident, his qualifications in his curriculum vitae, what happened to the plaintiff's vehicle as a result of the force of the accident, the reason he purchased a motor cycle following the accident, pain in his right shoulder, his failure to reveal his psychiatric problems in his immigration medical declarations, the details provided in the CTP claim form, his medication use and the extent of the plaintiff's physical recreational activities. These matters are also significant as they go to the extent of the plaintiff's injuries and continuing disabilities arising from the accident (see written submissions dated 28 March 2019 ("written submissions") paragraphs 7-15); 2. The plaintiff's falsities in his evidence have a cumulative effect which must be taken into account in considering his credit; 3. The accident in which the plaintiff was involved was minor. The only injury sustained by the plaintiff in the accident was a soft tissue chest injury which resolved promptly (written submissions paragraph 5); 4. Even if the plaintiff's case as to injury is accepted by the court, the plaintiff has not proven any resultant future economic loss (written submissions paragraph 6); 5. The plaintiff exaggerated as to the severity of the accident and particularly that his car spun around 90 or 180 degrees on impact. It should be found that the car did not spin at all and the plaintiff was being deliberately untruthful in his evidence (written submissions paragraphs 16-21); 6. The defendant should be found to be a truthful witness and her statement should be found to be reliable (written submissions paragraphs 22-24); 7. A reduction for contributory negligence in the amount of 15% is open to the court on the whole of the evidence (written submissions paragraph 26); 8. The only physical injury sustained by the plaintiff in the accident was a soft tissue chest injury. The injuries to the plaintiff's back, neck and right shoulder have been fabricated by the plaintiff. This is established by the plaintiff's failure to obtain further medical treatment for them despite his salary, private health insurance, personal entertainment expenditure and recent receipt of a Medicare card; 9. Much of the contemporaneous treating medical evidence does not support the plaintiff's case. Dr Matter's records should be regarded by the court as unreliable. The court should find on the evidence that the two medical certificates and the clinical note dated 13 October 2014 were untruthfully backdated by Dr Matter and that the plaintiff first saw Dr Matter on 11 December 2014 (written submissions paragraphs 29-34); 10. The court should prefer the medico-legal opinions of Dr Keller to those of Dr Lee and the other reports of Dr Home, Dr Matter and Mr Ryan. Dr Keller saw the plaintiff on three occasions and his opinions are well reasoned. He did not accept that the plaintiff's alleged right shoulder and back pain were attributable to the accident. The reports of Dr Home and Dr Lee are based on an inaccurate history. Mr Ryan expressed the view that with treatment, the plaintiff's condition should improve (written submissions paragraphs 35-41); 11. The court should prefer the opinion of Dr Roberts to that of Dr Parmegiani and find that the plaintiff has not suffered any psychiatric or psychological injury as a result of the accident. There was no cross-examination of Dr Roberts on his report (written submissions paragraphs 42-48); 12. The plaintiff has not suffered any loss of future earning capacity arising from the accident. There is no accident related reason why the plaintiff cannot return to his aviation studies. The plaintiff's claims on this issue do not stand up to review and ought not to be believed. The claim is deliberately false and calculated to obtain compensation. It is also inconsistent with the objective facts (written submissions paragraphs 49-50); 13. It is speculative to submit that the plaintiff would have secured long term employment as a commercial pilot. There was not sufficient evidence, including expert evidence, to assess the plaintiff's likely prospects in the civil aviation industry in Australia and overseas. Even with this evidence it would be a loss of opportunity claim with significant contingencies. All the evidence points to the plaintiff's future career with his current employer being "very bright". He will likely earn at least comparable, if not higher, earnings from a career in business as opposed to a career in commercial aviation. An allowance would need to be made for the contingency that his condition may improve (written submissions paragraphs 51-57 and T493.40-T495.35) or his back pain be successfully managed (T514.25); 14. On a proper application of s 126 of the Act, the plaintiff has not proven any compensable loss of earning capacity; 15. Any damages awarded should be limited to a modest amount for past out of pocket expenses (written submissions paragraphs 59-60 and Annexure B); 16. The plaintiff has made false and misleading statements in relation to his claim and these should be taken into account in relation to his credit and reliability: see T38.19; 17. Dr Parmegiani was not aware of the true position in relation to the plaintiff's activities at the time he saw him or his medication; 18. Drs Keller and Roberts were both critical of the plaintiff's presentation.
The plaintiff relied on written submissions in reply dated 23 April 2019. These submissions include: 1. The submission that Dr Matter backdated the relevant consultation documents is a very serious allegation and should not be accepted on the evidence. Dr Matter should be accepted as a witness of truth; 2. Dr O'Toole should be accepted as an impressive expert witness and his evidence should be accepted. He gave evidence that PTSD in particular was an "extremely challenging psychological condition" to control in the context of a pilot: T494.41; 3. Mr Newling should be accepted as an impressive witness. His evidence is relevant to the plaintiff's prospects as a pilot.

Factual findings

There are a number of inconsistencies in the evidence in these proceedings. The defendant urges that the court should find that the plaintiff has no current physical or emotional injuries or restrictions arising from the accident. The plaintiff submits that he is extensively restricted physically and has PTSD with secondary depression. There are inconsistencies between the plaintiff and Ms Schuler as to the circumstances of the accident. The defendant also urges that the plaintiff's work history, activities and social life, including the riding of his motorcycle, are inconsistent with the injuries which he asserts he has, particularly his PTSD.
In making its factual findings, the Court is not bound to accept any of that which a particular witness attests to and similarly may accept part only of a particular witness's evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Consequently, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129]. Generally, unless the evidence requires it, findings on credit should not be made "globally" - "a witness may reliably recount some matters and not others": Leung v Fordyce [2019] NSWSC 18 at [76]. However, it must be recalled that there is no burden or onus on a defendant to disprove a plaintiff's case: Nguyen v Tran [2018] NSWCA 215 at [55].
It is also important to remember the comments of the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]: "[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
Taking into account the evidence and the submissions made by the parties, I make the following findings of fact: 1. I have set out above from paragraph 9 a number of factual findings in relation to the plaintiff's background and employment history. 2. I accept Mr Newling's evidence that the plaintiff was a dedicated flying student in 2009 and had high level flying skills as a student. This was the only independent direct evidence on this point. Mr Newling was an impressive witness who appeared to be giving truthful evidence. I accept his evidence that the plaintiff was a high performing student while he was studying at Aerospace Aviation in 2009. 3. The plaintiff's relevant prior medical history was limited. On 23 April 2012, the plaintiff strained his right shoulder whilst working in a warehouse. I accept the plaintiff's evidence that he undertook physiotherapy and eventually regained a full range of movement and strength in the right shoulder. See also Exhibit A page 56. 4. The plaintiff was involved in the motor vehicle accident on 11 October 2014 at about 6:15pm. I have set out above the evidence of the plaintiff in relation to the motor vehicle accident. The defendant gives an entirely different version of the accident. The ambulance service records prepared by Ms Nielsen indicate "nil damage to Pt car". This is contrary to the plaintiff's evidence, the defendant's evidence and the photographic evidence: Exhibits B and E. It was not put to the plaintiff that Exhibit B did not reflect the damage to his car arising from the accident. Ms Schuler confirmed that the photographs in Exhibit B indicated damage to the plaintiff's car consistent with the accident which he had with her vehicle: T250.17. I find in the light of the above that Ms Neilson was in error in her entry in the ambulance records of "nil damage to Pt car". I find that the photographs in Exhibit B properly reflect the damage to the plaintiff's car arising from the accident. This is consistent with the plaintiff's evidence and the defendant's evidence. In general terms, I prefer the plaintiff's account of the motor vehicle accident to that of the defendant. First, the defendant has conceded liability in the proceedings. Ms Schuler's evidence, if it is accepted that the plaintiff swerved his vehicle and hit the front of her vehicle when it was behind the white line, would be inconsistent with the admission of liability. Secondly, the suggestion that the plaintiff swerved in his vehicle is inconsistent with the diagram which Ms Schuler prepared which is attached to her statement, Exhibit F. Thirdly, I think it is much more likely that the accident occurred whilst Ms Schuler was attempting to turn right from Washington Avenue and did not see the plaintiff's car approaching. A suggestion that the plaintiff swerved to hit Ms Schuler's car was never put to the plaintiff by counsel for the defendant. Having seen both witnesses give evidence on the issue, I formed the view that Ms Schuler did not have a good recollection of the accident. No swerving manoeuvre is referred to in her statement which is Exhibit F. For all of these reasons, I generally prefer the plaintiff's account. However, I do not accept that the plaintiff's vehicle when struck turned 90 degrees. In my view, such a rotation of the vehicle is inconsistent with the minimal damage to Ms Schuler's vehicle (see Exhibit F) and the extent of the panel damage to the plaintiff's vehicle. The plaintiff's vehicle may well have been diverted off its normal course by the collision but I do not accept, in the absence of expert evidence, that the force of the collision was such as to turn the vehicle around 90 degrees. In general terms I accept the defendant's submission on this issue. Much was made as to whether the plaintiff left the scene of the accident or Ms Schuler left the scene of the accident. In my view, it is unnecessary to determine this factual dispute. It does not bear upon any issue in the proceedings. 1. I find that the plaintiff's vehicle was travelling between 40 and 50kph when it was struck by the defendant's vehicle. Although there was panel damage to the plaintiff's vehicle, in my view it is accurate to describe the collision as a low-speed motor vehicle accident and a moderate collision. The plaintiff said that the vehicle he was driving was a write-off as a result of the accident. The car he was driving was purchased by him for only $2,000 (Exhibit 9). It is accordingly, not surprising that it was written off as it may well have been uneconomic to repair it. The fact the car was written off is thus in my view not proof itself of a major collision; 2. I find that the plaintiff complained on the day of the accident only in relation to chest pain. This is confirmed by the Ambulance Service record: Exhibit A page 14. It is also confirmed by the admission records and discharge summary of Royal Prince Alfred Hospital: Exhibit A pages 15-19. The staff at the hospital noted "no other signs of injury": Exhibit A page 15. I find that the plaintiff on the day of the accident did not complain of pain in other areas of his body. 3. The plaintiff claims that shortly after the accident he noted that his whole body was in pain and shock: T55.23. He said the pain became worse when he returned home on the evening of the accident: T58. Despite the plaintiff's evidence, it seems clear from the Ambulance Report and the Royal Prince Alfred Hospital reports that the plaintiff did not complain of other pain or injuries on the day of the accident. I accept Ms Neilson's evidence as to her practice on attending upon a patient. I consider also that any complaints made by the plaintiff as to other injuries or other pain would probably have been documented in the Royal Prince Alfred Hospital notes. A real issue in the proceedings was whether the plaintiff saw Dr Matter on 13 October 2014 and made the complaints recorded. The plaintiff believed that he saw Dr Lam first: T60.7; T146.42. However, the plaintiff indicated that he was confused on that issue: T146.17-.25. The plaintiff stated that he had the impression that he did not see Dr Matter until December 2014 but commented that Dr Matter's report indicated otherwise: T146.29. I find that the plaintiff saw Dr Matter in consultation on 13 October 2014 when a medical certificate, Exhibit A page 13, was completed by Dr Matter. This is consistent with: 1. The date on the medical certificate: Exhibit A page 13; 2. Dr Matter's notes showing a consultation on 13 October 2014: Exhibit G; 3. Exhibit H; and 4. Dr Matter's oral evidence. Dr Matter gave evidence that his practice was to complete a medical certificate and consultation notes whilst the patient was with him. Dr Matter was an impressive witness and I accept that evidence. The differences between the medical certificate dated 13 October 2014, the consultation notes (Exhibit G) and the further medical certificate of Dr Matter dated 13 October 2014, which became Exhibit H, do not, in my view, appear to be significant. I accept that Dr Matter's notes accurately record the complaints made by the plaintiff: see Exhibit A page 13 and Exhibit G. The medical certificate dated 13 October 2014 does not record any problems with the plaintiff's shoulders. The consultation notes which are Exhibit G refer only to "neck and arm pains". While the date on Exhibit 2 is inconsistent, it seems likely that the plaintiff was required to complete another registration form for some reason. 1. I find that after the first consultation with Dr Matter on 13 October 2014, the plaintiff saw Dr Lam. Dr Lam's notes only have the plaintiff complaining about mid-sternal pain (22 October 2014 notes) with tenderness being shown in the lower sternum. The notes for 18 November 2014 have the plaintiff continuing to complain about lower sternal pain: Exhibit A page 68. This is consistent with Dr Lam's medical certificate dated 18 November 2014 attached to the accident notification form: Exhibit A page 5. Some caution should be exercised by the court before relying too heavily on Dr Lam's notes: see Mason v Demasi [2009] NSWCA 227 at [2] and Afoa v McBride [2017] NSWCA 323 at [70]. However, Dr Lam was cross-examined in detail in relation to his notes. He emphasised in his evidence that he would record complaints of any pain made by the plaintiff. In his notes for 5 February 2015, Dr Lam carefully records the plaintiff telling him that his chest pain resolved in December 2014 and that he had complained also about pain in his lower back after the accident but was more concerned with his chest pain and so "failed to mention". However, no complaints of pain in areas other than the sternum were recorded in Dr Lam's notes. Further, only 5 days after the entry for 5 February 2015 where the plaintiff said that he had also complained about lower back pain, Dr Lam completed the request for medical information form for the NRMA which is at Exhibit A page 69 and following. Dr Lam specifically stated in the form that the plaintiff only mentioned anterior chest pain and that no other injuries were mentioned: see Exhibit A page 71, answer to Question 5. In the light of Dr Lam's notes, his cross-examination and the completion of the request for medical information document on 10 February 2015 (Exhibit A page 71A), I accept the accuracy of Dr Lam's notes. Accordingly, I find the plaintiff only mentioned his chest or sternal pain to Dr Lam and not the other matters of which he complains. This is curious in the light of the complaints to Dr Matter and the list of injuries in the personal injury claim form (Exhibit A page 10). In my view, and I find, these other complaints were far less significant to the plaintiff when he saw Dr Lam in October and November 2014. 1. There are a number of inaccuracies in the forms completed by the plaintiff. These include that the plaintiff had not made any prior personal injury/workers compensation claim (he had when he injured his shoulder previously) and the plaintiff's claims as to treatment received (he had also seen Dr Lam). I have taken these matters into account. 2. In the period 2015-2018, the plaintiff was examined by numerous specialists and MAS assessor reports and medicolegal reports were produced. I will consider my findings in relation to the plaintiff's medical condition further below. On 1 August 2015, after the motor vehicle accident, the plaintiff had a motorcycle accident. The plaintiff gave evidence that when his car was written off in the October 2014 accident his resources were such that he could only afford to buy a motorcycle and not another car. The plaintiff had experience riding motorcycles in India and was a self-confessed motorcycle enthusiast. Despite assertions by the plaintiff that he was anxious riding the motorcycle, he said he had no real choice as he needed to provide a means for commuting to his employment. I accept that evidence in general even though he had used a friend's car on occasion and his Hyundai car purchased in 2011 cost him less than the motorcycle. I have set out above the details relating to the plaintiff's motor cycle accident and the fracture of his right clavicle which he received in the accident. I have also reviewed above, the reports of Dr Smith who was the surgeon that looked after the plaintiff and operated on him. I will consider the relevance of the injury in this accident when I make my medical findings. 3. The plaintiff has complained of ongoing problems arising out of the injuries he alleged he received in the motor vehicle accident. The plaintiff gave evidence about ongoing problems with his lower back, right shoulder and neck: T58.44-T59.1; T61.29, T64.13-T64.29; T65.32; T68; T81.23-49. The plaintiff also gave evidence in relation to emotional/psychological problems which he had arising from the accident: T63.2; T69.18-.41; T69.28; T79.32-T80.31. 4. I have set out my findings in relation to the plaintiff's employment above. The plaintiff was employed in November 2015 with the Lynch Group Australia as a business analyst and in December 2016 was promoted to Assistant Account Manager. The plaintiff's alleged physical and emotional injuries do not appear to have affected him to any real degree in his current employment. No claim was made by the plaintiff to this effect. 5. The plaintiff was granted permanent resident status on 22 January 2018: Exhibit C. The plaintiff got his Medicare card in February 2018: T127. Prior to that, the plaintiff had only private health insurance with BUPA Insurance: T127.28. Despite this, the plaintiff has not taken any active steps over the last two years, including since he obtained his Medicare card, to have treatment to his right shoulder, neck or back: T205.14. The plaintiff confirmed that he had not seen his GP in relation to any injury from the accident for two years: T208.44. Similarly, the plaintiff has not seen a specialist in relation to any of his complaints of a psychological injury. The plaintiff's evidence was that he could not afford it and that treatment had been denied by the NRMA. The plaintiff stated that specialist costs were prohibitive and he had extensive debt. However, I find that over the past two years the plaintiff has been in employment with the Lynch Group earning a reasonable income: Exhibit C page 5. Further, in the period from 1 November 2015 to 30 April 2017, the plaintiff has had an extensive social life and incurred substantial expenditure in doing so: see Exhibit 4 and Exhibit 7. As stated, in the last two years the plaintiff has not consulted either his GP or any specialist in relation to his alleged injuries. 1. The plaintiff engages in reasonably active physical activities as part of his social activities. These include water sports, travel and motorcycle riding: see Exhibit 4. The plaintiff was engaged in recreational motorcycle riding when he broke his right clavicle on 1 August 2015. 2. As stated above, I find that the plaintiff has not been prescribed any pain relief medicine by a medical practitioner for at least two years. I also find that the plaintiff does not take pain relief medicine to the degree set out on page 19 of Exhibit C. The plaintiff's evidence, which I accept, is that he avoids painkillers unless they are "absolutely necessary" and that the last time he took Panadol was probably a month ago: T301.
I find that the plaintiff ceased his course at Basair to complete a commercial pilot's licence because of a lack of funds. The plaintiff has not flown or undertaken any flying studies since early 2012. The plaintiff has not undertaken any flying even over the last two years when he has been in full employment.
I accept the plaintiff's evidence that his "childhood dream" was to become a commercial pilot. I accept he came to Australia to study at Aerospace Aviation to complete a Diploma of Aviation and obtain a commercial pilot's licence. I accept, on the whole of the evidence, that the plaintiff still has an interest in becoming a commercial pilot but does not have any current financial means easily to fund any further studies quite apart from the effect on him of his alleged injuries.

Findings in relation to alleged physical injuries arising from the accident

I make the following factual findings in relation to the physical injuries which the plaintiff alleges he received in the motor vehicle accident on 11 October 2014: 1. The plaintiff suffered anterior chest pain as a result of the accident leading to tenderness in the lower sternum: Exhibit A page 5; Exhibit A page 10; Exhibit A page 14; Exhibit A page 15; Exhibit A pages 67-72. This chest injury had resolved by the end of 2014 or by early 2015: Exhibit A pages 47-48; 68, 113; Exhibit G; 2. On the balance of the evidence, I find that the plaintiff also suffered injuries in the accident resulting in the findings and symptoms set out in the medical certificate of Dr Matter dated 13 October 2014 and the consultation notes of Dr Matter which are Exhibit G. I find that despite the apparent lack of complaints by the plaintiff to the ambulance officer Ms Nielson and to the staff at the Royal Prince Alfred Hospital of other injuries on the day of the accident (see Exhibit A pages 14-21), the plaintiff did complain of pain and symptoms to Dr Matter two days after the accident: see Exhibit A page 13. As stated above, based on all of the evidence, particularly the oral evidence of Dr Matter, I accept that the medical certificate dated 13 October 2014 and the consultation notes of that date were completed and made on 13 October 2014. 3. Dr Matter's notes refer to "neck and arm pains" and "headaches and pins and needles in the arms". There is no mention of a shoulder injury specifically in Dr Matter's notes which are in Exhibit G. Similarly, there is no mention of a shoulder injury in Dr Matter's certificate dated 13 October 2014. The list of injuries in the Personal Injury Claim Form at Exhibit A page 10, also does not refer to a shoulder injury. Dr Matter's diagnoses include "? Cervical spine impingement" (13 October 2014 - Exhibit G); concussion, cervical spine spasm and thoracic and lumbar spine ligamentous injuries together with neck stiffness and mid back stiffness and pain (medical certificate dated 13 October 2014 - Exhibit A page 13); chronic back pain (12 December 2014 - Exhibit G); osteochondral pain following the accident (19 December 2014 - Exhibit G); "? Cervical spine impingement" (22 December 2014 - Exhibit G); soft tissue injury myelo-ligamentous back sprain (18 February 2015 - Exhibit G). I am not satisfied on the balance of probabilities from all the documentation that there was any early complaint by the plaintiff in relation to a right shoulder injury. However, the plaintiff did complain of a right shoulder injury by early to mid-2015: Exhibit A pages 47, 75 and 112-113.
The court has in evidence a large number of inconsistent medical opinions. I accept that the plaintiff had soft tissue injuries to his neck, back and chest following the accident despite differing opinions: see Exhibit A page 13 and Exhibit G cf Exhibit A pages 67-71A. The question for determination is the current status of those injuries.
On balance, on the whole of the medical evidence, I am satisfied that the plaintiff still suffers from some pain and limited restrictions in his back arising from the accident. However, I do not accept the entirety of the plaintiff's evidence as to his injuries. I am not satisfied that the plaintiff currently has any significant restrictions or pain in his right shoulder or neck connected to the accident for the following reasons: 1. As found above, there were apparently no early complaints by the plaintiff in relation to his right shoulder recorded in the medical records; 2. The ultrasound dated 29 April 2015 suggests some impingement and bursitis but no rotator cuff tear or tendinopathy: Exhibit A page 75; 3. The plaintiff also injured his right shoulder in the 1 August 2015 motor cycle accident: Dr Keller saw any current limitation as more likely connected to the 2012 injury and the 1 August 2015 injury: Dr Keller report dated 10 April 2018 pages 9-10. I have found that the 2012 injury had settled by the time of the 2014 accident; 4. The report of Assessor Dr Home was made following an assessment on 15 December 2015. Dr Home was made aware of the motorcycle accident but found soft tissue injuries and strains in the lumbar spine and right shoulder. There is a conflict of opinion in the reports of Dr Lee and Dr Keller. Dr Keller in his 16 November 2016 report stated that at the time of his assessment he could find no consistent restrictions in the right shoulder or lower back of the plaintiff. Dr Keller's report dated 27 July 2015 following an examination on that day showed a normal cervical spine, left shoulder, lumbar spine, normal range of movement in the right shoulder but with inconsistencies in presentation in relation to the right shoulder. The reviews by Dr Keller are inconsistent with the plaintiff's claims of ongoing physical injury to his right shoulder or neck: Exhibit A pages 87 and 90; 5. Dr Lee found in his 10 July 2015 report pain and tenderness in the lumbosacral spine, stiffness in the right shoulder, intervertebral disc injury of the lumbosacral spine and a rotator cuff injury to the right shoulder. Dr Home in his report found that the disc problems at L4/5 and L5/S1 related to underlying disc degeneration: Exhibit A page 32. In my view this opinion of Dr Home should be preferred to the opinion of Dr Lee who connects the disc bulges with the accident. See also the CT report at Exhibit A page 74. I found Dr Home's report to be more persuasive on this issue; 6. The 29 April 2015 ultrasound is inconsistent with Dr Lee's report in relation to an alleged rotator cuff injury to the plaintiff's right shoulder; 7. The later reports of Dr Lee show improvement in the plaintiff's position: Exhibit A page 57. Surgery to the right shoulder is no longer recommended by him. Tenderness is still shown in the lumbar spine; 8. Dr Lee in his 4 April 2018 report noted an improvement in the plaintiff's neck which I accept.
The reports of Dr Keller, including that dated 10 April 2018, in relation to the plaintiff's right shoulder are supported by the lack of any early complaint concerning the right shoulder and the following matters: 1. The plaintiff's apparent ability to ride a motorcycle in the period from the end of 2014-2016 which would have required use of his upper limbs; 2. The apparent ease with which he managed the motorcycle in the Go Pro film which was in evidence; 3. His apparent participation in a wide range of activities as shown in Exhibit 4; 4. The plaintiff not seeing his general practitioner for over two years. In the last two years the plaintiff was well paid and could have visited his general practitioner for advice if his condition had continued. He has not been prescribed any painkillers, accordingly for the last two years. The plaintiff also on his own evidence avoids painkillers unless absolutely necessary and is not a frequent taker of Panadol or Panadeine; 5. I think it highly likely that the plaintiff would have consulted either a hospital outpatients' clinic for treatment or sought medical help following him obtaining a Medicare card in February 2018 if he had the continued problems in his right shoulder of which he complains; 6. Overall, I consider and find that the plaintiff has considerably exaggerated his shoulder restrictions; 7. Similarly, I view the balance of the evidence as not supporting any continued problems with the plaintiff's neck.
However, on balance, I accept that the plaintiff still has some continuing pain and tenderness in his lumbar spine arising from the accident which is not severe: 1. The plaintiff has complained about back pain since soon after the accident: Exhibit A pages 10 and 13; Exhibit G; 2. The back problems are supported by Dr Home: Exhibit A page 27; 3. Continuing back tenderness is supported by the recent opinion of Dr Lee: Exhibit A pages 56-57. I prefer this finding to the opinion of Dr Keller in relation to the plaintiff's back. Dr Keller also found tenderness in the plaintiff's lumbar spine: report dated 10 April 2018 page 6; 4. However, both Dr Lee's report and the plaintiff's work history, work travel and various activities suggest that the back restrictions are not severe; 5. The problems and limitations establish only a continuation of issues arising from a soft tissue injury.
In the end, and doing the best I can with the inconsistent medical evidence, I am not satisfied that the plaintiff has the continuing severe restrictions in his right shoulder, neck and back of which he complains. I find that the plaintiff continues to have ongoing limited tenderness and pain in his lumbar spine which could be assisted by the taking of non-prescription analgesia. I note the plaintiff says he avoids taking pain medication unless it is absolutely necessary.

Findings in relation to alleged psychiatric injuries arising from the accident

Dr Parmegiani in his report dated 8 October 2015, found that the plaintiff had post-traumatic stress disorder with secondary depression. Although there may be some question about the accuracy of all of the plaintiff's information provided to Dr Parmegiani in relation to the consumption of painkillers at the time of the consultation, I find that the analysis by Dr Parmegiani is persuasive both as to the existence of PTSD and the clear connection between the plaintiff's involvement in the accident and the development of his psychiatric symptoms: Exhibit A page 42.
I have not accepted all of the plaintiff's evidence about different aspects of his injuries and other matters. However, I observed him carefully in giving his evidence in relation to his various emotional and psychological complaints. I accept that evidence: see T69.18-.41; T76.30-.36; T79.27-T80.31.
The defendant relied on a report of Dr Roberts dated 7 May 2017. The body of Dr Roberts' report was prepared on the basis that in the accident no damage was done to Mr Mathews' car which Dr Roberts said would indicate that the accident was minor. See page 13 and pages 14-15 of the report. Dr Roberts emphasises that the PTSD diagnosis of Dr Parmegiani was contrary to definition because the accident, causing no damage to the plaintiff's car, could not be considered a severe accident involving extreme danger. Dr Roberts stated in summary on page 16 of his report that the motor vehicle accident was "apparently of such trivial degree that the ambulance driver commented on the absence of any damage to the claimant's car".
Although Dr Roberts placed a postscript note on his report on page 16 indicating that he had, since dictating his report, seen photographs of the damage to the plaintiff's car, he said the photographs showed "trivial damage". As stated, the body of his report was prepared before he saw those photographs.
In my view, Exhibit B, being the photographs of the damage to the plaintiff's car, shows more severe damage than Dr Roberts noted. Further, the circumstances of the accident which I have found, involving the defendant's car emerging from Washington Road and striking the side of the plaintiff's vehicle, even at a relatively low speed, are likely to have caused more than trivial damage and been traumatising to the plaintiff which led to him suffering the symptoms as detailed in Dr Parmegiani's report. I also note that the plaintiff's symptoms relied upon are referred to by Mr Ryan in his report.
Based on all of this material, I prefer the opinion of Dr Parmegiani (despite its age) that the plaintiff has PTSD over the opinion of Dr Roberts. The plaintiff's oral evidence, which I accept on this point, confirmed the presence of ongoing symptoms.
I have considered whether this conclusion on the medical evidence should be rejected because of other evidence in the case. This includes the plaintiff purchasing a motorcycle after the car accident in October 2014, the plaintiff's motorcycle riding as shown in the Go Pro film, the plaintiff's various activities as shown in Exhibit 4 and the plaintiff being apparently successful in his work with the Lynch Group which involves interstate travel.
These matters do not change my view about the PTSD diagnosis. The plaintiff said that he needed a mode of transportation and there was nothing cheaper than a motorcycle. He was using the motorbike until he could save up to buy a car: T76.46. This explanation was plausible. However, it appears to be somewhat contradicted by the fact that the plaintiff had only paid $2,000 for his Hyundai Elantra in 2011 when he purchased it: Exhibit 9. Nevertheless, this was well before the accident. On the evidence, the plaintiff has since bought a Honda Civic motor vehicle: T210; Exhibit 4 page 13 (16 April 2017). I consider that the plaintiff was a keen motorcycle rider who had ridden motorcycles in India and was thus experienced. He was therefore able to call on his experience in riding motor cycles until he could afford to buy the more expensive Honda car. I do not regard this as a significant matter against the plaintiff's evidence on this point.
There is no suggestion from the experts that the plaintiff's ability to hold down his job with the Lynch Group is inconsistent with mild to moderate PTSD.
Overall, I find that the plaintiff has PTSD. However, I find that it is at a mild to moderate level which does not substantially interfere with his social or work life.

Duty of care and Breach of duty of care

The defendant has conceded in her 2 March 2018 Defence a breach of duty of care owed by her to the plaintiff: paragraph 3(c).

Contributory negligence

The defendant has pleaded contributory negligence. There is no suggestion on the evidence that the plaintiff was exceeding the speed limit at the time of the accident. The defendant confirmed that the plaintiff's vehicle was not travelling in excess of the speed limit: T246.46. I have found that the defendant's vehicle left Washington Road and entered Belmore Road colliding with the side of the plaintiff's vehicle. The defendant conceded that Belmore Road was a priority road and she had to give right-of-way to traffic coming in both directions on Belmore Road: T239.18.
Contributory negligence in relation to a motor accident is to be determined by applying s 138 of the Act and ss 5R and 5S of the Civil Liability Act 2002 (NSW) ("CLA").
Section 138 of the Act provides as follows: 138 Contributory negligence - generally (cf s 74 MAA) (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage."
In Davis v Swift [2014] NSWCA 458 Meagher JA (with whom Leeming JA agreed) stated at paragraphs [23]-[29] as follows: "[23] Section 138(1) of the MAC Act provides that the "common law and enacted law as to contributory negligence" apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility. [24] The starting point is s 9(1) which provides that if the claimant "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person" the damages recoverable in respect of the wrong "are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6 ; 197 CLR 1 at [21]. [25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 ; 59 ALJR 492 at 494 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man…and of the relative importance of the acts of the parties in causing the damage…. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. [26] Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the court when assessing what is "just and equitable" to have regard "to the claimant's share in the responsibility for the damage", s 138(3) provides: (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. [27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson(1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence "where the injured person … was … not wearing a seat belt as required" by law. That being the position, the broader language may have been used to allow the court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was "just and equitable" or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed. [28] In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is "just and equitable in the circumstances of the case" will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]-[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]. [29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97 ; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence.""
In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162]. "[161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case"."
Grills has been referred to with approval in later cases: see for example Boateng v Dharamdas [2016] NSWCA 183 at [129].
Having regard to my factual findings, I do not consider there is any evidence to establish that the plaintiff was in any way careless or inattentive or failed to take any reasonable action for his own safety. In considering this, I take into account the matters in ss 5B and 5C of the Civil Liability Act. The defendant caused her car to enter the intersection carelessly and collide with the side of the plaintiff's car. I cannot see how the plaintiff could reasonably have avoided the collision exercising reasonable care for his own safety.
Accordingly, I reject the submission of the defendant that there was contributory negligence by the plaintiff in the present case.

Causation

Sections 5D and 5E of the CLA provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
As s 5E states, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Under s 5D(1)(a) of the CLA, the determination of factual causation in a case involves the application by the court of a "but for" test of causation. That is, a determination by the court that in accordance with s 5B of the CLA that the negligence of the defendant was a necessary condition of the occurrence of the harm. That involves a determination by the court on the balance of probabilities that the harm to the plaintiff in fact occurred and would not have occurred absent the negligence of the defendant: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18].
The plaintiff was in good health prior to the October 2014 motor vehicle accident and his right shoulder injury from 2012 had recovered.
In my view, the physical injuries caused to the plaintiff in the accident and the PTSD which I have found were clearly caused by the breach of duty of care by the defendant. But for the breach, these injuries would not have occurred.
Accordingly, causation is established in the present case. In my view, there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm caused: s 5D(1)(b) of the CLA. Similarly, there is no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA.

Damages

The plaintiff makes no claim for non-economic loss. The heads of damages claimed are past out-of-pocket expenses, future out-of-pocket expenses, past economic loss and loss of future earning capacity. The latter is claimed on a buffer basis.
The amounts submitted by each of the parties as to the appropriate damages to be awarded are as follows: Plaintiff Defendant Past out-of-pocket expenses $2,891.23 $1,100.90 Future out-of-pocket expenses $50,000 Nil Past economic loss One week's pay was available on the evidence Nil Loss of future earning capacity (buffer) A substantial figure but less than $400,000 Nil; alternatively, a minimal amount if a loss of earning capacity is found and some risk of loss is established

Past out-of-pocket expenses

I have accepted that the consultations with Drs Lam and Matter arose out of the accident. Any expense relating to the call of the ambulance on 11 October 2014 should also be allowed. The attendance by the plaintiff at Royal Prince Alfred Hospital should be allowed. I accept and find that the alleged consultations on 28 October 2014 and 14 April 2015 with Dr Matter occurred despite the lack of notes in Exhibit G. I note the reference to "Date of next mediaI [sic - medical] review: 28/10/2014" in Exhibit H which suggests that a consultation with Dr Matter on 28 October 2014 was to occur. I accept Dr Matter's evidence that he would not have charged for consultations if they had not occurred. This indicates these two consultations occurred.
In relation to the physiotherapy expenses, the plaintiff initially claimed $654.53 for physiotherapy services provided by the Physio Rehab Centre. Exhibit L suggests 7 consultations occurred. The plaintiff only recalled "a handful of sessions" with a physiotherapist (T324.26) although he had a specific memory of discussion of a treatment plan at the first session: T326.3. He later said he remembered two or three consultations: T324.45. On 6 February 2019, Senior Counsel for the defendant said that the $654.53 was no longer claimed by the plaintiff.
Accordingly, the amounts claimed by the plaintiff as set out in Exhibit L totalling $2,891.23 are in my view established as to the sum of $2,236.70 as proper out of pocket expenses.

Future out-of-pocket expenses

I have found that the plaintiff's only continuing physical restrictions relate to continuing pain and tenderness in his lower back.
The plaintiff will likely suffer occasional aches and pains arising from the injuries in the accident. At T302.7 the plaintiff said that he takes painkillers when it is "absolutely necessary" and only takes Panadol and Panadeine irregularly.
Having regard to this evidence, I allow only $200 for future non-prescription analgesics when the plaintiff feels the necessity to take painkillers.
In my view, the plaintiff would probably benefit from physiotherapy as needed. However, there is no adequate evidence to support an award of damages for this: see Dr Lee at Exhibit C page 49 ("he may require physiotherapy"); Dr Keller 10 April 2018 report page 9. The report of Mr Ryan is over three years old and the recommended physiotherapy was aimed at achieving a physical capability which has already been achieved: see Exhibit C page 109.
I have found that the plaintiff suffers from PTSD of mild to moderate severity. Accordingly, the plaintiff should receive treatment for this condition from either a psychologist and/or psychiatrist. General practitioner consultations will be needed for this purpose. Medications also may be required. There is no clear evidence as to the costs of this treatment. Doing my best on the evidence and being conservative I award a buffer of $4,000 for this.

Past economic loss

The plaintiff asserts some past economic loss arising from the accident: Ex A page 3; T62.25. In final submissions, this claim was not pressed strongly by senior counsel for the plaintiff. On the evidence, I was unable to determine any loss. The plaintiff was a casual part-time employee at IKEA at the time. Any loss of earnings as claimed was not established to my satisfaction. The IKEA records in Exhibit 4 are unclear and do not establish the loss claimed. If I am wrong as to this point, I would only have allowed $500.

Loss of future earning capacity

The plaintiff claims a significant buffer for the loss of a chance to become a commercial airline pilot on a high salary.
I accept the plaintiff's evidence, as indicated above, that he desired to become a commercial airline pilot. I accept that this was his "childhood dream". I also accept his evidence that when he ran out of money at Basair that he proposed undertaking tertiary studies, obtain a degree, start work, save the money and then return to his flying studies to obtain a commercial pilot's licence. This is consistent with the great effort he had made to get to Australia to undertake the aviation course and the financial burdens this had placed on his family. In coming to these conclusions, I take into account the difficulties I have had in accepting a number of other aspects of the plaintiff's oral evidence and the defendant's forceful and detailed submissions on this issue.
The award of damages to a plaintiff in a motor vehicle accident for loss of future earning capacity is governed by s 126 of MACA which provides as follows: "126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
The plaintiff gave evidence that he had a credit card debt of about $15,000: T358.29. He said he was slowly paying off this debt: T358.30. It accordingly seems to be likely that it would be some time before the plaintiff would have the financial resources to undertake flying studies to obtain a commercial pilot's licence even if the accident had not occurred. Exhibits 4 and 7 show that the plaintiff has a fairly constant social life. He seems to be successful in his job at the Lynch Group and has obtained a promotion. This raises the question whether the plaintiff would give up that social life and job with prospects of advancement in order to return as a student to undertake flying lessons at considerable cost. It is possible that the plaintiff may have been able to undertake lessons whilst continuing with full-time employment to fund them. It is also possible that the plaintiff may have been much more driven to pursue his pilot dream if he had not been involved in the accident and suffered the injuries I have found.
I am satisfied on all the evidence that it is unlikely that a person with even mild to moderate PTSD who had continuing symptoms would obtain a medical certificate to obtain a CARS 1 licence to become a commercial pilot. This was the view of Dr O'Toole. It is to be expected that the plaintiff's PTSD which involves moderate anxiety and stress would make him unsuitable to be a pilot. In my view, the plaintiff would be honour bound to disclose his diagnosis of PTSD in applying for a pilot's licence, undertaking any medical for that licence and in applying for interviews with airlines to be a commercial pilot. This could possibly be counteracted to some degree by the provision of Dr Roberts' opinion.
Clearly on the evidence, in order to be a commercial pilot the plaintiff would need a CARS 1 licence. While it is the ultimate decision for CARS whether it grants a pilot's licence, whether a potential pilot passes the relevant medical would likely be very significant. It also seems clear to me that in recruiting for pilots, airlines would likely prefer pilots with good health and without PTSD and its related anxiety. His back problems may also be relevant as pilots are required to climb into the cockpits of aeroplanes and operate instruments, often reaching for the instruments. Again, employers are likely to prefer pilots without any health problems such as back pain. However, the evidence from Dr O'Toole establishes that back pain itself may not be a disentitling factor if it is mild and does not prevent the pilot being able to respond properly to pilot duties and acting in an emergency.
Taking all of these matters into account, I consider it more likely than not that the plaintiff would have saved the money, eventually returned to his pilot's studies, and sought and obtained a job as a pilot but for the accident. I find these are the plaintiff's most likely circumstances if the accident had not occurred. Against that are the plaintiff's debt, his social life, his apparent good job with prospects of advancement and his Business degree which has nothing to do with aviation. However, in the end I consider the fact that being a pilot was the plaintiff's childhood dream, the financial support of his parents to become a pilot, his studies to be a pilot and his abilities as attested to by Mr Newling, make it more likely than not that he would have returned to his pilot's studies in due course and gone on to obtain a licence and probable secure employment as a pilot but for the accident. In deciding this I take into account Karabay v Carr [2014] NSWCA 143 at [24]-[32] and [47] and the extensive expert evidence led in that case on the issue. However, each case must be decided on its own facts and expert evidence.
On the evidence, I therefore accept on the balance of probabilities that the diagnosis of PTSD and back pain arising from the accident involves a loss of future earning capacity.
The plaintiff seeks a significant buffer for this. There was before me evidence as to pilot's salaries which establishes, in the light of the plaintiff's dedication and ability as attested to by Mr Newling, that the plaintiff has the capacity to earn higher incomes than his present position with the Lynch Group: see Exhibit A (page 306), Exhibit K and Exhibit 11. Exhibit K establishes the receipt by pilots of weekly salary rates as at 2016-2017 higher than the plaintiff's current salary. This is also the case with the Average Salary for Pilots document in Exhibit 11. The evidence in Exhibit A page 306 and following is less clear except in the case of captains of larger aircraft. Mr Mathews is currently a Business Analyst. Whilst an Account Manager may earn substantially more money than a Business Analyst (Exhibit 4 "What Jobs Pay" information) and the plaintiff seems to be well regarded by his current employer (reference dated 22 May 2017 part of Exhibit 11), Exhibit 11 and Exhibit K seem to establish higher salaries for pilots overall at this stage of the plaintiff's age and career. No submission was made contrary to that on behalf of the defendant.
In New South Wales v Moss [2010] NSWCA 133; (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71]: "[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed (1961) 105 CLR 549 at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them." In Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJ 533 at 534 Taylor J said: "Since ... it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly." The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169 per Street CJ. [71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para[1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act." In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history." They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages ...". The majority (Deane, Gaudron and McHugh JJ) in Malec v J C Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials": Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.""
In Allianz Australia Insurance Limited v Kerr [2012] NSWCA 12 at [32]-[36], Basten JA considered the applicable principles. Basten JA also said in Kerr at [24] that s 126 of MACA does not appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": see Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at page 347 and Moss, above, at [71].
In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]: "[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded. [80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72 ; (1981) 150 CLR 402 (at 412). [81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future"."
Accordingly, McColl JA stated that an award of a buffer or cushion to a plaintiff is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's existing employment prospects will be limited or the plaintiff's capacity has been clearly reduced but how that will inhibit his or her earning capacity in the future as a consequence of the injury suffered is uncertain.
I referred to the above principles in Polo v Nominal Defendant [2019] NSWDC 53 at [150]-[156]. Counsel for the defendant accepted that Polo correctly stated the principles to be applied.
In the present case, I find that the plaintiff's most likely circumstances but for the accident would have been to save money, eventually return to his pilot's studies (possibly part-time), complete his studies, obtain a pilot's licence and probably obtain a pilot's position. I find that his injuries arising from the accident make that much less likely and have reduced his earning capacity.
Having regard to the uncertainties and the costs that would be involved and the possibilities that the plaintiff may have had trouble for some time securing a suitable position or advancing himself within the aviation industry, particularly in the light of his current position and prospects, I am only willing to allow a very limited award of damages as a buffer for loss of future earning capacity. I agree with the defendant's submissions that many contingencies and risks need to be taken into account, including the problems the plaintiff may have had securing a career in a challenging industry. Balancing all the factors I have referred to, I consider the figure of $45,000 takes into account the various matters. The amount sought by the plaintiff is, in my view, excessive and not established on the evidence for the reasons I have given.
Accordingly, the amount I would allow for damages is as follows: Past out-of-pocket expenses $2,236.70 Future out-of-pocket expenses $4,200.00 Past economic loss Nil Loss of future earning capacity $45,000.00 TOTAL $51,436.70

Disposition

The parties should check my calculations and raise any issues with them.
Accordingly, I make the following orders: 1. Judgment for the plaintiff. 2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. 3. Leave to the parties to seek within 14 days a different costs order to that set out in order 2 above. 4. The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision. 5. Exhibits to be returned at the expiry of 28 days.

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