Nature of case 1The plaintiff seeks damages for injuries he claims to have received shortly before 4.00pm on Friday 1 August 2008, when he was struck by an unidentified motor vehicle whilst he was crossing the intersection of Elizabeth and Park Streets, Sydney. The plaintiff claims the identity of the owner and driver of the vehicle remains unknown despite due inquiry and search, and he therefore brings these proceedings against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 [" MAC Act "].

Issues 2Apart from matters associated with the plaintiff's pre-injury situation, the credibility of testimony and the assessment of damages, the following liability issues arose for determination in these proceedings: Issue 1 : Whether the plaintiff was struck by an unidentified vehicle. My findings on this issue are set out in paragraph [197] of my judgment; Issue 2 : Whether the driver of the unidentified vehicle was negligent. My findings on this issue are set out between paragraphs [198] to [213] of my judgment; Issue 3 : Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue are set out between paragraphs [214] to [235] of my judgment; Issue 4 : Whether the plaintiff has shown that the owner and the driver of the unidentified motor vehicle cannot be established after due inquiry and search. My findings on this issue are set out between paragraphs [236] to [266] of my judgment; 3The issues that arise concerning the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff's earning capacity and his domestic activities, will be dealt with in those portions of my reasons that deal with damages.

Evidence overview 4The plaintiff recounted details of his pre-injury work, leisure and social history as well as the circumstances of the collision in question. The defendant called oral evidence from Mr Kevin Lo, a witness who saw aspects of the collision and its aftermath. The plaintiff tendered affidavit evidence from his solicitor, Mr David Ford, whose evidence was directed at the issue of attempts at due inquiry and search seeking to establish the identity of the owner or driver of the unidentified motor vehicle involved in the collision. Mr Ford was cross-examined concerning the matters to which he had deposed in his affidavit. 5The medical evidence tendered by the plaintiff comprised a bundle of reports from the plaintiff's treating and assessing doctors. The defendant tendered reports that related to a prior personal injury claim made by the plaintiff, as well as reports from Dr Seamus Dalton, a sports medicine and rehabilitation specialist who was also called to give oral evidence. 6Financial returns, records and related analyses were tendered concerning the plaintiff's claim for loss of earning capacity, and the financial arrangements within the partnership in which he practised as a solicitor.

Credit findings 7The only two matters that arose concerning the credibility of testimony involved a consideration of the evidence of the plaintiff, and the liability witness Mr Kevin Lo. This involved the reliability of the respective testimony they had given. 8In my view, the plaintiff gave his evidence in a careful and straightforward manner. When his evidence was viewed as a whole, no indications emerged to suggest that his evidence was improbable or not credible. His responses to questions both in chief and in cross-examination were full and were carefully considered. In this regard I considered that the plaintiff's candid evidence that he could not recall the colour or state of the display of the traffic or pedestrian control signals at the intersection in question at the time of the collision, was a matter that weighed significantly in favour of the acceptance of the reliability of his testimony. This was in circumstances where he stated that he thought it was safe and clear for him to cross, yet he was careful to avoid merging that belief with any statement that described the state of display of the pedestrian control lights. 9I considered that there was no indication from within the DVD evidence obtained from observation of the plaintiff's activities or from the medical evidence tendered to suggest that the plaintiff's account of his injuries and his resultant disabilities should not be accepted. I formed the opinion that his evidence was inherently credible and was given in a reasonable manner. I was reinforced in this view on account of Dr Dalton's comment that in the medico-legal examinations he had conducted, the plaintiff's presentation was consistent with the underlying pathology and with the findings he had made on physical examination. Accordingly, I accept the plaintiff's evidence in its entirety as being both credible and reliable. 10Mr Lo's evidence was hesitant and tentative, which suggested to me that he was not confident as to the detail of what he had seen. His evidence was couched in terms of probability as to what he had seen rather than providing an account of his direct observations. Initially, he did not want to get involved in the liability investigation. Clearly, on the account of events given in evidence by him, having to give a statement about the matter was regarded by him as something of an imposition. 11On considering the evidence of Mr Lo, whilst I concluded that his account of the factual events was largely based on a summary of what he thought had probably occurred, rather than representing a reliable factual account, it was broadly consistent with the account given by the plaintiff, notwithstanding that he had not seen that portion of the events where the plaintiff retrieved his bag or his glasses from the roadway. 12To the extent that the respective versions of the events that occurred immediately before, during and after the collision by the plaintiff and Mr Lo are at variance, I prefer the evidence of the plaintiff not only because his evidence seemed to me to be inherently credible, and he was careful not to provide evidence beyond his actual recollection, for example, his non-recollection of the colour of the pedestrian lights, but also because Mr Lo's evidence was, in my view, largely based on a reconstruction of what he thought had occurred during the incident, rather than on what he had actually seen.

Summary of findings 13I have accepted that the plaintiff was struck by an unidentified motor vehicle as he claimed. I have rejected the defence of alleged contributory negligence. I have found that due inquiry and search has failed to establish the identity of the owner or driver of the unidentified motor vehicle. I have found that the plaintiff was injured as claimed. I have assessed the plaintiff's entitlement to damages in the sum of $433,565.

Assessed heads of damage 14The plaintiff makes a claim for 10 heads of damage. These heads of damage claimed by the plaintiff, and the damages submissions by the parties, are listed below, together with the paragraph references to my assessments of the various heads of damage claimed: Head of Damage claimed by plaintiff Plaintiff's Submissions Defendant's Submissions Award Paragraphs (a) Past diminution in earning capacity $79,300 $10,000 $60,000 [322] - [363] (b) Future diminution in earning capacity $306,337 Nil $250,000 [364] - [377] (c) Superannuation losses $42,453 Nil $34,100 [378] - [381] (d) Fox v Wood $1,522 $1,522 $1,522 [382] - [384] (e) Past domestic assistance $38,918 Nil $17,074 [385] - [403] (f) Future domestic assistance $24,454 $24,454 $24,085 [404] - [406] (g) Past cost of fencing $22,236 Nil $11,000 [407] - [415] (h) Future rural labour $17,548 Nil Nil [416] - [419] (i) Future out-of-pocket expenses $40,000 $8,355 $25,000 [420] - [427] (j) Past out-of-pocket expenses $10,784 $10,784 $10,784 [428] - [432] Totals $583,552 $55,115 $433,565

II. FINDINGS - BACKGROUND FACTS 15Unless otherwise stated, the paragraphs that follow set out my findings on relevant matters of fact, concerning the plaintiff's pre-injury personal and professional background circumstances, and the relevant events of the collision.

Plaintiff's background circumstances 16The plaintiff is presently aged 56 years. He was aged almost 54 years when he was injured. He is a solicitor and he is married to a solicitor. There are 3 children in the family aged 15, 13 and 8 years. The plaintiff holds university degrees in commerce and law. He was admitted to practise as a solicitor in 1982. He has spent his entire professional life as a solicitor in the firm Carneys. He has been a partner of that firm for many years. That firm is now an incorporated solicitor's practice. Since 1997 the plaintiff has held specialist accreditation in the practise of property law. 17The defendant introduced evidence to the effect that the plaintiff has a brother who is known to practise as a barrister in personal injury litigation of various types. I considered this evidence to be of doubtful relevance. This is a matter to which I will return on the liability issue of due inquiry and search. 18Before the injury which is the subject of these proceedings, the plaintiff had a long history of proficient involvement in active sports, including rugby, swimming, surfing and golf. In the years before the injury in question, he regularly devoted a significant amount of his non-working and non-family time to maintaining his physical fitness and his sporting prowess. This included regular exercise in gymnasia. He obviously took pride and satisfaction from his involvement in those activities, managing to successfully mix a busy professional and family life with his active involvement in his sporting and related activities. 19Before his injury, the plaintiff maintained concurrent memberships of 7 separate social, recreational and sporting organisations, comprising rugby, surf, beach, golf and social clubs. The plaintiff's membership and involvement in the activities of these clubs enabled him, with some considerable success, to advance himself professionally by utilising professional opportunities for obtaining work for himself and for his firm from the array of personal, business, social, sporting and recreational contacts that he had managed to accumulate in the course of these activities. 20The plaintiff's professional work as a solicitor was principally in the field of property law and the commercial transactions that related to such work. His work covered the range of what he described as modestly remunerated work of a goodwill nature, such as the preparation of wills, and flow-on work which included high end property transactions that were profitable to his legal practice. His client base drew heavily upon his social, sporting and recreational activities and from within his membership of the clubs I have described. Obviously, having regard to the partnership and corporate arrangements in his firm, the plaintiff's income was also derived from a share of the profits that arose from the products of the work carried out by others in the firm. 21Some of the plaintiff's financial records, and the records of Carneys, the plaintiff's legal practice partnership, were tendered in evidence. Those records will be the subject of analysis in connection with my findings on the claim for diminution in earning capacity. 22The plaintiff's pre-injury health was generally good. Despite having acquired a number of injuries from his sporting activities over the years, particularly to his right shoulder and to his knees whilst playing rugby, he also had been involved in 2 other motor vehicle collisions. These occurred in about 1982 and in 1994. In those incidents, the plaintiff had suffered from whiplash type injuries, from which he had recovered before the injury in question in these proceedings. There was no medical opinion establishing any relevant causative relationship between the effects of the plaintiff's prior injuries and the injuries and disabilities that arose as a result of the collision to which these proceedings relate. 23Before the collision in question, the plaintiff had led an active professional and social life, and he maintained his longstanding sporting links. He also actively participated in domestic activities. He exercised daily and was interested in maintaining his physical fitness. At his preferred gymnasium, one of the several which he attended, in successive years he had been declared " King of the gym ". He successfully managed to combine his interest in exercise and sports with his professional life and he actively sought professional work from the relationships that he had made from his sporting activities, his gymnasium and club memberships and the networks that he was able to access from those involvements. He was able to structure his working hours around these activities, working between 60 and 70 hours per week before his injury. He was also able to structure the timing of some of his work away from his office, and at the premises of his clients, to enable him to make time to visit the various clubs and gymnasia to which he belonged. 24Over many years as a partner of the firm Carneys, the plaintiff derived a satisfactory professional income from the work he introduced to the firm from these social, sporting and professional contacts. As a partner in his firm he not only benefited from work from within his own client base, but he also benefited from the work that others introduced into the firm in the usual manner that contributed to the distributable profits for the partnership. These arrangements continued when the partnership became incorporated. Before his injury, the plaintiff's share of the profits of the firm was of the order of 24.1 per cent. The evidence of the plaintiff's earnings will be examined in greater detail in connection with the claim for loss of earning capacity. 25Before the injury in question, the plaintiff undertook his share of household and domestic activities, performing the heavier aspects of housework, gardening, weeding, lawnmowing, clearing leaves from his roof, and all the required outdoor maintenance. His home is in a heavily wooded suburban area, which required much weekly outdoor maintenance around the home, especially in the buffer zone between the bush area and his house. The lawn was on a steep slope, which required that the lawnmower be carried up and down that slope. 26Before the injury in question, the plaintiff had committed himself to acquire an interest in a small rural property holding of about 100 acres for the grazing of cattle, in relation to a proposed sub-division at Ellalong in the Hunter Valley in NSW. The plaintiff had a rural background and had experience in the work required to maintain and fence such a property and had intended to himself carry out such work on the property had he not been injured. The property was formally acquired when the transaction was completed in September 2008, which was after the subject injury. 27The issues that arise from the plaintiff's pre-injury social, sporting, domestic and employment activities will be examined in greater detail in connection with the specific heads of damage to which those matters relate.

Events of the collision 28Shortly before 4.00pm on Friday 1 August 2008, the plaintiff had left his office in Castlereagh Street in the city, and had walked in a southerly direction along Elizabeth Street, in order to attend upon the settlement of a client transaction which was to take place at an office located in a building at the corner of Bathurst and Elizabeth Streets, a distance of some 400 m away from the plaintiff's own office. He said, and I accept, that he was walking quickly, but was not rushing. Although it was put to the plaintiff that he was rushing to this appointment, he denied that suggestion. I accept his denial not only because I thought he gave inherently credible evidence, but also because it was not relevantly contradicted by the evidence of the eyewitness who described the plaintiff as having been walking at a fast striding pace, which I do not consider to necessarily connote an impression of " rushing ". 29In the course of these events, the plaintiff came to the intersection of Elizabeth Street with Park Street, where he noticed the traffic in that location at that time was very heavy. He stated that there was stationary traffic, comprising vehicles located over the south-western end of the intersection and which were partly obstructing the pedestrian crossing at that point. He described the westbound traffic in Park Street as being gridlocked before he attempted to cross the road. The gridlock extended from the intersection of Elizabeth and Park Streets, down to the Town Hall, with no vehicles moving within the gridlock. I accept the plaintiff's evidence in this regard. 30At that time, when the plaintiff commenced to walk across the intersection, he noticed that there were a number of people who were walking across the intersection ahead of him, and that they were walking between the banked-up stationary vehicles that were located within the gridlocked traffic located on the south-western side of the intersection of Park Street. The plaintiff stated, and I accept, that at the time when he commenced to walk across the intersection, there was a pedestrian in the immediate vicinity to his left, and another pedestrian just in front of him by about 2 metres. 31Candidly, the plaintiff stated, and I accept, that he could not recall whether there was a green walk signal in his favour, or a red don't walk signal. He stated that all he could remember was that as he reached the intersection, and before he had commenced to cross, there were people walking across the road ahead of him, and that traffic was gridlocked on the pedestrian crossing. He stated that as he walked to the south-western side of the intersection, he reached the last lane which was the closest to the kerb, which was a dedicated bus lane, and he then commenced to walk across the final part of the pedestrian crossing when he suddenly looked up and noticed that in the " millisecond " before the collision, a vehicle was upon him. He stated, and I accept, that he looked across the intersection before he crossed to make sure he was crossing properly. 32In oral evidence the plaintiff stated that at this time he was 2 to 3 metres from the footpath on the south-western side of the intersection. In a diagram that had been prepared when he was interviewed by an investigator engaged by the defendant, this was described as being about 1 metre from the kerb. He said that before he was struck, he was at all times within the marked confines of the pedestrian crossing at the intersection. The plaintiff believed, and I accept, that at the time of the collision, he was the only pedestrian remaining on the crossing. 33The plaintiff stated and I accept, that immediately before the collision, he did not see the approach of the vehicle that struck him, but he believed the vehicle had turned from Elizabeth Street into Park Street, that is, it had changed its direction to travel from north in Elizabeth Street to travel west in Park Street. The vehicle struck the plaintiff heavily on his left side and at a sufficient speed to cause the plaintiff to be thrown into the air and then catapulted about 3 metres backwards or sideways to the west, whereupon he fell down onto the roadway. In these events the plaintiff described being thrown into the air and about 2 feet off the ground. At the time of these events the plaintiff weighed 13 stone. He was 6 foot tall. The plaintiff stated, and I accept, that in "the brief millisecond" before the impact, he saw a white or light coloured vehicle. 34When the plaintiff fell onto the roadway he landed on his right side. He was shocked by the events of the collision. Initially he was shocked and thought he was going to die. After a few moments, he gathered himself and he noticed his bag and his glasses were on the roadway. He then got up and retrieved these items. 35In accepting the foregoing evidence of the plaintiff I have had due regard to the evidence of the eyewitness, Mr Kevin Lo, who was working in a nearby cafe. 36In answers to questions put to him in cross-examination, Mr Lo acknowledged that he had no independent recollection of the events beyond the content of a statement that he had made to an investigator employed on behalf of the defendant. The statement was dated 2 December 2008. Mr Lo acknowledged that he had refreshed his memory from that statement. 37Mr Lo stated that from his position whilst working behind the bar of the adjacent Starbucks cafe on the south-western corner of Park Street with Elizabeth Street, he had a clear view of the scene of the collision, and the roadway of Park Street, extending between Elizabeth Street and Castlereagh Street, which was parallel to Elizabeth Street, but to the west. 38Mr Lo stated that he looked up and saw, from a corner of his eye, the vehicle that struck the plaintiff suddenly stop in the bus lane after it had entered the intersection from the east side of Park Street to travel to the west side of Park Street. He stated that this vehicle had been the last vehicle to enter the intersection. I infer from the context of this aspect of his evidence, that he was referring to either an apparent change of signal of the traffic control lights, or that after this vehicle had entered the intersection, there was no room for any other vehicle to enter, or there were no other vehicles attempting to enter Park Street at that point. The evidence does not permit a reasoned preference between these competing inferences. 39Mr Lo stated that he believed the vehicle was in the pedestrian crossing when it had struck the plaintiff. He also confirmed that when the plaintiff had been struck he was moved forward, with his feet off the ground, having been moved from a position within the pedestrian crossing to a position about 2 m or so away from that point, and coming to rest at a point about 1 metre from the " outside of the pedestrian crossing ". That evidence was broadly consistent with the description given by the plaintiff. 40Mr Lo stated that he believed the plaintiff " was one of the last few pedestrians to cross the lights ". He had described the plaintiff as " walking quicker than usual than a normal person " but nevertheless walking. In answer to question 127 of the interview statement he had given to the defendant's investigator, he described the plaintiff as having been walking at " a fast paced striding walk ". He stated that he was not sure whether there were some other pedestrians with the plaintiff at the time he was struck, but he had seen other pedestrians cross at the intersection before the plaintiff had crossed. Significantly, because he had not observed them, Mr Lo was not in a position to describe the state of the display of the traffic control signal that faced the plaintiff as he commenced to, and proceeded to, cross the intersection before he was struck by the vehicle. 41In the statement he provided to the investigator, Exhibit "W", Mr Lo gave the following account of events; "Q 27. ...could you tell me in relation to this accident and what you saw? If you could start off with what you were doing and what you saw after? A 27. OK. I was probably, probably making drinks at the bar side of things. I usually look up occasionally just to see if we get busy or not and stuff like that. So, so then this, I saw a sudden stop of a white car, a sudden stop and then saw the, saw a pedestrian being hit and he, he lied on the road, he, he, he flew in the air for a few metres in front, probably 2 metres or so. He landed on the road. He got up almost immediately and then the driver of the car got out and then they had a minor conversation. The driver waved her off, picked up his things and then continued on his journey. I couldn't ... Q 28. A... A 28. ...obviously I couldn't hear the conversation and I couldn't, I didn't know what they said, I just saw the exchange. Q 29. Just to clarify something you said then, ... A 29. Mmm. Q 30. ...you said the driver wa, waved off, ... A 30. Oh... Q 31. ...do you mean the pedestrian? A 31. Sorry, the pedestrian wave, waved the driver off or something, something that, to that extent. Q 32. How far away were you... A 32. Mmm. Q 33. ...from the incident when it occurred? A 33. Oh probably a good 7 to 8 metres away I think would be a good estimate. Q 34. Did you have a clear view? A 34. I had a clear view but I did not hear it so it was all in, in sight, yes. Q 35. Did you actually see the collision between the car and the pedestrian? A 35. Ah, I, I think so, I saw, yeah, I remember before and after but I don't actually remember the car hitting the pedestrian. I, yeah, I don't know why." 42The reference of Mr Lo's answer to Q. 27 as to the " driver having waved her off " was corrected in the oral evidence of Mr Lo as being a reference to the pedestrian having waved off the driver, consistent with Mr Lo's answer to Q 31. 43In the course of these events, the plaintiff stated that a woman who appeared to be the driver of the vehicle that had struck him, had alighted from the vehicle. Initially, the plaintiff said he did not engage in any conversation with her, nor she with him. The plaintiff later agreed that the driver had walked towards him, saying something, but he could not recall what it was that she had said. At the time the plaintiff heard a man in the vicinity of these events say something to the effect that he had been responsible for the collision in the sense that he had distracted the driver of the vehicle at the time. In the context in which these events occurred, and from the limited detail of the description, it was difficult to form a concluded view of the true significance of what the plaintiff had heard in this regard. 44The plaintiff described the woman whom he thought was the driver of the vehicle to be just over 5 feet in height, and aged between 35 and 45 years. He could not recall whether she had any distinguishing features. No-one gave him any particulars of identification of either the owner, or the driver of the vehicle. The plaintiff acknowledged that he did not ask the woman for her particulars, and he also acknowledged that he did not record any particulars in relation to the registration of the vehicle that had struck him. 45Mr Lo described the driver as being a lady of Indian appearance with dark complexion and dark hair, apparently aged between 35 and 40 years. Mr Lo stated that he saw the driver get out of the vehicle and that she and the plaintiff were making hand gestures to each other and moving their lips indicating to him that there had been " a minor exchange of words " for a couple of seconds, following which the plaintiff walked off in a southerly direction along the footpath of Elizabeth Street. Mr Lo stated that at that time, the vehicle was still in the stationary position it had been in within the bus lane when it had come to a stop after striking the plaintiff. At that point Mr Lo had turned away from the scene and had started talking to colleagues, and did not later see the vehicle move away from the scene of the collision. 46Following, or in the course of these events, the plaintiff felt pre-occupied by his commitment to attend to the requirements of a complicated multiparty exchange of contracts as part of a broader transaction he had been engaged to carry out on behalf of a client. As a consequence of such pre-occupation, at the time he removed himself from the roadway, he stated, and I accept, that he did not appreciate the full significance or extent of his injuries. He apparently waved the woman away, as was described by Mr Lo, and then he himself left the scene in order to attend to his pre-arranged appointment to deal with the affairs of his client. He did so about a minute after the collision, without beforehand thinking of seeking details of the vehicle that had struck him, or its driver, or any witnesses to the incident. Before he had left the scene, no-one had approached the plaintiff to provide him with any details of the vehicle in question, or its driver, or the details of any witnesses. 47As the plaintiff proceeded to walk away from the scene in order to keep his scheduled appointment at a nearby office, he came to realise that he was limping, and that he had a sharp pain in the left side of his chest in the rib area, as well as having a pain in his right side and to the right shoulder region, to the right side from the point of his shoulder down to his wrist, having earlier landed on the roadway on his right shoulder and his right knee. The plaintiff said that it felt painful and he felt he was heavily bruised. He was also aware that he had abrasions to his right knee and right elbow, and he was aware that he was bleeding. 48The plaintiff attended to the completion of the transaction at hand, and then, realising he would have difficulty attending his next engagement which was at Cronulla, he returned to his office, where he rested for a few hours and then went home, where he rested over the weekend. During the weekend, a neighbour, who was a medical practitioner, advised him to seek an x-ray and to seek medical assistance. He then arranged to see his general practitioner in the city on the following Monday, 4 August 2008.

Medical evidence review 49The plaintiff has consulted, and has been assessed by, a number of medical practitioners. Before arriving at my credit findings, I will review the medical reports that were tendered by the parties. The reports and opinions from those assessments are summarised in the paragraphs that follow, commencing with a review of the plaintiff's pre-injury health and injury history, and then reviewing the treatment and assessment reports that followed the incident in question.

Reports relating to the plaintiff's prior health before the collision in question 50The defendant tendered a number of medical and allied reports, and a personal injury claim form that pre-dated the collision in question. These related to the previous injury sustained by the plaintiff on 16 December 1994. Those documents are summarised in the paragraphs that immediately follow.

Previous whiplash injuries in 1982 and 1994 51The plaintiff was injured in a traffic collision on 16 December 1994 when he was a passenger in a taxi that collided with another vehicle. He made a claim for damages for a whiplash injury to the neck that resulted from that collision. The claim form was tendered as Exhibit "1". The plaintiff's answer to question 37 within that exhibit frankly disclosed a prior whiplash injury that he had sustained in about 1982. He was questioned about the circumstances and the effects of that injury. He said that at the time of the hearing of this case, he could no longer recall the details of the 1982 incident, although he had sufficient recall of the facts in 1994, at which time he disclosed that he had been injured in 1982. 52I do not regard the plaintiff's lack of recollection of a 1982 whiplash injury that occurred some 28 years ago to be remarkable or extraordinary, especially given common knowledge of the at times, non-enduring, nature of human memory over time for events of only passing significance. The plaintiff obviously recalled something of those events 6 years ago when he filled in the 1994 claim form where he disclosed the 1982 injury. I consider his surprised lack of recollection about the 1982 incident was genuine and I do not regard this as a matter that ought to be seen as being detrimental to his credit as a witness. 53I accept the plaintiff's evidence that the effects of his prior whiplash injuries had well and truly resolved by the time of the collision which is the subject of these proceedings. I am reinforced in this view by the fact that the plaintiff's medical records from the practice of Dr Hingerty and Dr Greig make no mention of any matters or problems that could be seen as relating to the plaintiff's prior whiplash injuries. Plaintiff's pre-accident health 54In 1980 the plaintiff sustained a shoulder injury whilst playing rugby union. This has left him with a minor shoulder deformity. He has also suffered knee injuries for which he was treated conservatively. Before the injury which is the subject of these proceedings, neither of these problems had prevented the plaintiff from playing golf, swimming, exercising, including in the gymnasium, or from undertaking any physical activity that he wanted to pursue. 55The records of Dr Hingerty and Dr Greig reveal that in the period 15 August 2001 and the time of the plaintiff's injury on 1 August 2009, a period of 9 years, the matters for which the plaintiff sought medical advice from that practice related to minor matters including transient respiratory viral complaints, health screening and occasional advice over his prior history of sporting injuries to his knees and related orthopaedic advice and treatment. 56In my view the plaintiff's pre-injury medical records do not contradict the plaintiff's evidence that he was in relatively good general health before he was injured on 1 August 2009. I infer from the context and the provenance of the medico-legal reports that have been tendered, and from the fact that the defendant has had access to the plaintiff's pre-injury medical records, that if there were medical reports or records that contradicted the plaintiff's evidence, or which would have pointed to any relevant matters that diminished the force of that evidence, they would have been tendered in the proceedings. Prior injury to right shoulder in 1980 57The plaintiff's medical records show that on 21 November 2008 the plaintiff's general practitioner gave consideration to the plaintiff's history of prior injury to the right shoulder. The relevant entry states: "1980 playing union for Manly against Syd Uni Dropped on R shoulder

clavicle.

Wired by orthopod ? John Collins Has had no problem with this since. Rx Panadeine Forte for new shoulder injury. R shoulder not doing well. Seeing Dr Stephen Quain again next week." 58I infer from this record that the plaintiff discussed the significance of his prior shoulder injury with his general practitioner at that time and stated that before the injury on 1 August 2008, his prior right shoulder injury, being a fractured right clavicle, had not been problematic for him after it had been successfully treated. Further, I accept the evidence of Dr Dalton to the effect that the plaintiff's previous fracture of the right clavicle was not contributing to his symptoms that were referrable to the collision in question. Dr Sarah Thompson - former treating general practitioner 59On 17 December 1994 the plaintiff attended Dr Sarah Thompson, a general practitioner, for assessment and treatment following his involvement in a motor vehicle collision on the previous evening. In her letter of 22 March 1995 Dr Thompson referred to the plaintiff as having sustained a whiplash injury to his neck for which he took Panadol for pain relief. She advised a course of Naprosyn, and that he abstain from sport until the pain had subsided. Her initial view was that she believed that the plaintiff should make a full recovery from his injury but she understood he continued to experience intermittent pain in the neck radiating to both shoulders leading to a temporary restriction in physical activities. Dr Thompson's letter made no reference to any specific shoulder injury. Mr Robert Heaphy - former treating physiotherapist 60On 9 May 1995 the plaintiff attended the physiotherapy practice of Mr Robert Heaphy for treatment of bilateral neck pain and stiffness, which was worse on the right side. Mr Heaphy recorded that the plaintiff's symptoms had been present for the previous 5 months and had led to a reduction and cessation of activities which caused him pain, including his participation in swimming, golf, tennis, and which led him to miss an overseas swimming event. 61Mr Heaphy recorded the plaintiff's subjective complaints of frequent pain and stiffness in the neck depending upon the varied activities in which he involved himself. He also noted his objective findings on examination which included a 20 per cent reduction of neck rotation to the right and neck extension, being painfully and slightly restricted at the end of a range of movement, the pain being experienced low down the right side of the neck. Mr Heaphy initially treated the plaintiff with heat, joint mobilisation procedures, muscle stretches, ultrasound and a programme of home exercises and postural supports to be continued in conjunction with the taking of regular anti-inflammatory medication. 62Mr Heaphy continued his treatment of the plaintiff until 31 October 1995, at which time the plaintiff reported continued neck discomfort during and after various sports and exercises and a regular cracking or creaking sensation that occurred when the plaintiff's neck was rotated to the left more than to the right. At that stage, which was 11 months after the 1994 injury, Mr Heaphy predicted that it was likely the plaintiff would continue to have a restriction on his neck for up to 2 years after his injury, and would gradually continue to improve in his condition. Ms Helen Gibson - former treating physiotherapist 63On 14 November 1995 the plaintiff consulted Ms Helen Gibson, a manipulative physiotherapist, for ongoing treatment of neck pain and stiffness on both sides and radiating into the scapular area. Ms Gibson reported that the plaintiff had told her that his symptoms were aggravated by many of his normal daily activities such as lifting his young child, sitting or playing tennis, as well as experiencing stiffness on arising from bed in the mornings. 64On her physical examination of the plaintiff, Ms Gibson noted the plaintiff had poor muscle control around the scapulo-thoracic region, with a related tendency for poor neck and shoulder posture, which was a specific sign in a patient who was otherwise extremely strong and fit, as was the case with the plaintiff. She also noted a very poor pattern of cervical extension and dysfunction of the C5/6 and C6/7 segment, initially more severe on the right, but also with significant left sided restrictions of movement. She noted stiffness in the mid to upper spinal segments and marked muscle spasm and tenderness in the interscapular muscles with the upper trapezius muscles being also very tight. 65The impression conveyed by Ms Gibson was that the plaintiff had suffered soft tissue damage to the lower cervical spine, for which she recommended a specific programme of physiotherapy treatment comprising soft tissue release and mobilisation combined with postural exercises. She noted that it was possible that this program could continue for up to 6 months as the plaintiff wanted to return to his previous high level of physical activity. Dr David Roebuck - former consultant orthopaedic surgeon 66On 5 December 1995, at the request of his solicitors, the plaintiff was assessed by Dr David Roebuck, a consultant orthopaedic surgeon. Dr Roebuck reviewed the plaintiff's history and recorded his complaints about the pain he had been experiencing on both sides of the neck, more on the right than the left, and radiating down towards the inter scapular area. He noted that the plaintiff was receiving physiotherapy at that time. 67On his physical examination of the plaintiff, Dr Roebuck noted this revealed evidence of a classical trapezius musculo-ligamentous injury of the cervical spine with tenderness over the occipital insertion in the trapezius and the scapular pectoral girdle insertion of the trapezius. His physical examination indicated a positive trigger point in both trapezius muscles, indicating that the plaintiff had muscular irritation but otherwise had a good range of cervical spine movements. He reviewed x-rays which showed nothing of significance. 68Dr Roebuck stated his view that the plaintiff had a soft tissue injury to the cervical spine which had left him with residual symptoms which he regarded as being permanent. Dr Roebuck also thought that the plaintiff's condition was permanent and static, and that even if the symptoms were to subside, he would still be left with disability and permanent impairment, including restriction in his employability, whether or not the plaintiff had pain. He expressed the plaintiff's impairment for employability as involving heavy work or work involving heavy or repetitive neck movement, or work involving prolonged posture and mobilisation of his neck, such as keyboard work. 69As things turned out, Dr Roebuck's prognosis did not prevail. Instead, the plaintiff stated, and I accept, that the symptoms from the 1994 injury (incorrectly referred to in the transcript at T139.31 as the 1995 injury) lasted for a further 6 months, or 12 months as a maximum.

Reports from plaintiff's treating and assessing doctors following the collision in question 70Following his injuries which are the subject of these proceedings, the plaintiff has been seen for treatment and medico-legal assessment by a number of practitioners. Reports of those practitioners are summarised in the paragraphs that immediately follow. Dr Mary Hingerty - treating general practitioner 71On 4 August 2008, the plaintiff consulted his general practitioner, Dr Mary Hingerty, who initially referred him for radiological examination. Dr Hingerty's note of the plaintiff's injuries was that he reported pain in his left ribs following the collision, and abrasions to the right knee and right elbow after he had fallen onto those parts, after being struck by the vehicle. Tenderness was noted in the ribs and spleen area. A tetanus toxin injection was administered. Panadeine Forte was also prescribed. 72On 22 August 2008 the plaintiff again consulted Dr Hingerty who noted that the plaintiff had been sleeping on his right side to spare his left rib area on this occasion. She made a note of the plaintiff's report of pain in the right shoulder, with the occurrence of pain being reported by the plaintiff when lifting his right arm and when rolling onto his right shoulder at night. The defendant argued the absence of a causal connection between the plaintiff's injuries and the subsequent development of complaints concerning his right shoulder. This is an issue to which I will return in stating my reasons concerning the identification of the plaintiff's injuries that arose from the collision in question. 73Dr Hingerty referred the plaintiff for x-ray and ultrasound studies in connection with his injuries. 74On 10 September 2008 the plaintiff again consulted Dr Hingerty. She noted the complaint of 3.00am wakening when the plaintiff was laying on the right shoulder. Following a review of the radiological and ultrasound studies, Dr Hingerty referred the plaintiff to Dr Stephen Quain, an orthopaedic surgeon who specialised in the management of shoulder injuries. Dr Quain then assumed the continuing care and management of the plaintiff's right shoulder injury. Dr Charmaine MacDonald - radiologist 75On 5 August 2008, at the referral of his general practitioner, Dr Charmaine MacDonald carried out an x-ray examination of the plaintiff's left ribs. This examination did not reveal any abnormalities. Dr MacDonald also carried out an ultrasound examination of the plaintiff's abdomen and spleen. No abnormalities were identified in those areas. X-rays revealed an old wire fixation of the scapula. That wiring was described as having fragmented, and early osteoarthritis was noted in the left scapho-trapezium-trapezoid joint. Dr Ursula Ridley - radiologist 76On 8 September 2008, at the referral of his general practitioner, Dr Ursula Ridley carried out an x-ray and ultrasound study of the plaintiff's right shoulder. This revealed a fracture of the distal third of the right clavicle with inferior displacement of the distal fragment, together with degeneration in the acromioclavicular joint. Ultrasound studies revealed a partial tear of the right supraspinatus tendon in the articular surface of the mid-section of the tendon, and a suggestion of a small tear in the right infraspinatus tendon, with some thickening of the subacromial bursa and limitation in the range of abduction to a maximum of 90 degrees. Workcover certificates from treating doctors 77A series of Workcover medical certificates were variously issued to the plaintiff by Dr Hingerty and by Dr Quain, between 22 August 2008 to 10 September 2008, and on 27 May 2009. The latter certificate was issued by Dr Quain in respect of a surgical procedure he had performed on the plaintiff for a right rotator cuff repair carried out on 16 April 2009. These certificates were relevant to a workers' compensation claim lodged by the plaintiff with his firm's insurer in respect of his treatment expenses. Dr Stephen Quain - treating orthopaedic surgeon 78On 15 September 2008 the plaintiff was first examined for assessment by Dr Quain. He initially thought that the plaintiff probably had partial thickness tears in his right shoulder which would settle with simple strengthening exercises. 79On 27 October 2008 Dr Quain gave the plaintiff an injection of local anaesthetic and hydrocortisone into the subacromial region of his right shoulder because of persisting impingement type pain in that area. Initially, Dr Quain did not consider that the plaintiff needed any surgical treatment for his right shoulder injury, however, that management plan was subsequently changed. 80On 16 April 2009 Dr Quain carried out a surgical repair of the plaintiff's right rotator cuff tear. Dr Quain's post-operative correspondence noted that at the operation it was found that there was a moderate subacromial spur with a supraspinatus tear, including long head of the biceps and the superior portion of the subscapularis tendons. 81Subsequently, Dr Quain's operation report dated 16 April 2009 was tendered : Exhibit "U". The report referred to the surgical procedure of right rotator cuff repair and biceps tenodesis. The report went on to record the following detail : " OPERATIVE FINDINGS: a moderate subacromial spur, a small full thickness anterior supraspinatus tear with some delamination consistent with the MRI. The long head of the biceps was thin and could not be initially found but appeared to be subluxated out of the grove[sic for groove]. The superior portion of the subscapularis was thinned as part of the repair, a tenodesis of the biceps was performed." 82Dr Quain was not called or required to give evidence to explain the probable aetiology of these findings. This was a matter of some significance given the opinions expressed in the oral evidence of Dr Dalton as to his views on the origin and causes of the plaintiff's right shoulder problems. This is a matter to which I shall return when analysing the evidence of Dr Dalton. 83According to the correspondence, post-operatively, Dr Quain recommended that the plaintiff observe a period of rest with his arm in a sling for about 4 weeks, and to then undergo a programme of supervised physiotherapy. The plaintiff followed those recommendations. Dr Quain noted that the plaintiff would remain restricted in his recreational sports and activities, including on his hobby farm, and that stabilisation would take approximately one year following the operation. 84On 27 April 2009 the plaintiff underwent a post-operative examination by Dr Quain following the earlier procedure for right shoulder rotator cuff repair and biceps tenodesis. A simple passive range of exercises was prescribed and a further post-operative examination was scheduled to take place in a further month. 85On 27 May 2009 Dr Quain reviewed the plaintiff 6 weeks post-operatively. He felt the plaintiff was progressing quite well but needed assistance with physiotherapy. At that time he certified the plaintiff to be fit for his usual work as a lawyer, and confirmed that he was able to drive. Another examination was planned after a further 6 weeks had passed. 86On 8 July 2009 Dr Quain re-examined the plaintiff and noted that physiotherapy supervision was being provided once per week. Dr Quain noted that the plaintiff still had moderate pain at night but was using his right arm normally for the activities of daily living. He described his measurements of the plaintiff's right upper limb movements and noted restrictions. 87On 11 September 2009 Dr Quain re-examined the plaintiff and noted continued slow improvement of symptoms with physiotherapy but he also noted a continued problem with pain at night. He noted the plaintiff required the occasional use of Panadeine Forte. He also noted an improved but still restricted range of forward flexion of the right upper limb. 88On 7 December 2009 Dr Quain saw the plaintiff again and noted he had become a little dispirited and frustrated by the slowness of his recovery, also noting some continuing night pain. On that occasion, the plaintiff complained to Dr Quain that he did not use his right arm normally on the computer, and had not yet been able to do any gardening or farm work, and had not resumed sports such as swimming and golf to the level that he would have liked. Dr Quain also recorded a history of the plaintiff feeling depressed over the previous 2 months, the reasons for this being unclear to Dr Quain, because at the time, the plaintiff had been experiencing repeated chest and upper respiratory infections. 89At this last consultation, Dr Quain reassured the plaintiff that recovery from rotator cuff repair surgery can be frustratingly slow. He advised that despite the somewhat restricted shoulder movements, the plaintiff should be encouraged to again take up golf with limitations and restrictions of the extent to which he would play, avoiding the use of the driver, and perhaps restricting himself to 5 or 6 holes to avoid causing harm to his right shoulder. Dr Quain also encouraged the plaintiff to start gentle swimming, but not surfing, and not to do multiple laps when swimming. 90Although Dr Quain suggested that he review the plaintiff in a further 4 months for a 1 year post-operative follow-up, no further report was tendered from Dr Quain after his 7 December 2009 report, although there was evidence that the plaintiff had been reviewed by Dr Quain in 2010, as was noted in the report of Dr Mastroianni. There is no evidence that a further report had been obtained from Dr Quain. Dr Douglas Lingard - cortisone injection under ultrasound guidance 91Pre-operatively, on 22 December 2008, at the referral of Dr Quain, and under ultrasound guidance, Dr Douglas Lingard injected the plaintiff's right shoulder with a mixture of cortisone or Celestone and local anaesthetic, with a subsequent report that this had provided some relief of the plaintiff's shoulder symptoms. Dr Craig Harris - MRI radiologist 92Pre-operatively, on 3 March 2009, at the request of Dr Quain, the plaintiff underwent MRI scanning of his right shoulder. The scans were reported upon by Dr Craig Harris, who reported on the scans as follows: " COMMENT : Focal supraspinatus full thickness tear, on a background of intermediate grade partial thickness articular sided tearing and severe tendinosis. The tear extends across the rotator interval into the subscapularis superior 5mm there is a high grade articular sided tear allowing medial subluxation of the long head of biceps, which is grossly thickened and hyperintense in keeping with severe tendinosis, with a longitudinal split tear. There is early atrophic change of the superior fibres of subscapularis muscle belly, the remaining cuff musculature is intact. There is bursitis. Minor degenerative signal at the biceps anchor / labral attachment withouit discrete SLAP tear, minor labral degenerative change is evident. Small joint effusion with low grade synovitis." 93Dr Harris stated that the presence of bursitis and synovitis as well as an un-united clavicular fracture was ascribed by the plaintiff to be due to a previous football injury. Dr Tom Mastroianni - consultant occupational physician 94On 30 October 2009, at the request of his solicitors, the plaintiff was examined by Dr Tom Mastroianni, a consultant occupational physician. Following his review of the plaintiff's history, and a review of the medical reports which had been supplied to him for that purpose, Dr Mastroianni noted that the plaintiff's right shoulder was still very restricted at the time of his examination. He also recorded the plaintiff's complaint that whenever he used his right arm, his experience of pain intensified, and that he could not sleep on his right shoulder or do any heavy lifting. He also noted that the plaintiff no longer performed gardening and had not returned to any sporting activities, including participation in tennis, golf and swimming. 95On his examination of the plaintiff, Dr Mastroianni noted the presence of a prominent right clavicle due to a previous fracture, as well as a well-healed but depressed and pale 7cm surgical scar across the point of the shoulder. He also noted tenderness over the point of the shoulder, with shoulder movements being very restricted. He recorded marked wasting of the right shoulder girdle and 2cm wasting of the upper right and dominant arm. 96Dr Mastroianni expressed the opinion that the plaintiff had a 21 per cent upper extremity impairment according to the AMA Whole Person Impairment scales. It was not necessary to delve into these percentages, as following the MAS assessment process, a claim for non-economic loss was not open for the plaintiff to pursue. 97Dr Mastroianni noted the continued presence of pain and restricted movements at 6 months post-operatively. He thought that such lack of progress in someone who was as fit as the plaintiff, was a poor prognostic sign, although he expected some degree of improvement over the 12 months that would follow his examination of the plaintiff. He expressed a guarded view of the plaintiff's prognosis and stated that the plaintiff could not perform heavy lifting, repetitive movements with the right arm or activities above chest height. 98Dr Mastroianni expressed views concerning the plaintiff's need for future treatment and domestic and allied assistance. These recommendations will be considered separately in the context of the assessment of the plaintiff's entitlement to damages. Dr Lew Perides - MAS assessor 99On 19 May 2010 the plaintiff was assessed by Dr Lew Perides, a general practitioner and Medical Assessment Service ["MAS"] assessor appointed by the Motor Accidents Authority ["MAA"]. 100Dr Perides reviewed the plaintiff's medical history and he recorded the plaintiff's concern over the lack of restoration of the normal range of movement of his right shoulder. He noted the complaints of difficulty carrying a heavy bag in the right arm, and of the curtailment of a lot of his normal recreational activities, including golf. He also noted the plaintiff's complaint of difficulty maintaining his rural property, and of him receiving help with lawnmowing at home. 101Dr Perides conducted a physical examination of the plaintiff's right shoulder and noted significant reductions in the range of measured active movement in flexion, extension, adduction, abduction and external rotation, there being no restriction with internal rotation movements. Dr Perides was of the opinion that the plaintiff's presentation was consistent with the reports that he had sighted, and he stated that the plaintiff had presented in a straightforward manner. From the comments made by Dr Perides, I infer that the plaintiff had co-operated fully with the examination conducted by Dr Perides. 102In considering the report of Dr Mastroianni dated 03 (sic for 30) October 2009, Dr Perides noted a less restricted range of movements of the right shoulder on his own examination which was conducted some 7 months after Dr Mastroianni had examined the plaintiff, and he noted that his own findings concerning the plaintiff's restricted shoulder movements were essentially similar to those recorded by Dr Quain in his report dated 7 December 2009, thereby suggesting that the improvement anticipated by Dr Mastroianni had in fact occurred as predicted. 103Dr Perides confirmed that apart from the right shoulder injury, the plaintiff's other soft tissue injuries sustained in the incident in question had resolved quite quickly, but nevertheless leaving him with a reduced range of right shoulder movement and a surgical scar. 104Dr Perides confirmed that the plaintiff's previous right shoulder fracture had not been caused by the collision in question.

Reports commissioned by the defendant for the purpose of these proceedings 105The defendant has had the plaintiff medically assessed by Dr Seamus Dalton, a consultant physician with sports medicine and rehabilitation qualifications. Initially, the defendant sought to rely upon 3 reports by Dr Dalton. These were dated 20 February 2009, 1 June 2010 and 18 October 2010. There were 2 subsequent reports dated 22 November 2010 and 25 November 2010. The tender of these latter 2 reports was objected to and after argument, the tender was rejected. The basis for that rejection appears between paragraphs [150] to [189] of my reasons. 106In deference to the causation arguments raised by the defendant, I will set out a detailed summary with relevant extracts and subsequent analysis of the reports of Dr Dalton. First report of Dr Seamus Dalton - 20 February 2009 107Dr Dalton first examined the plaintiff on 17 February 2009 and following that examination he prepared his report dated 20 February 2009. 108Dr Dalton reviewed the plaintiff's history, including a history of orthopaedic and musculoskeletal injuries, and a history of the incident and the subsequent course of the plaintiff's symptoms and treatment. Dr Dalton included in his historical summary the fact that the plaintiff had a history of prior problems in both knees which required treatment, including unknown surgical treatment, from 2 doctors from within the same practice that had Dr Dalton's name on the letterhead, namely Dr Crichton and Dr Cross. 109Dr Dalton identified the plaintiff's principal complaint that related to the collision in question as being his right shoulder symptoms comprising an awareness of a dull ache in the right deltoid region and in the right upper arm at rest, with the experience of pain in connection with sleeping on the right side, and occasional waking at night. Dr Dalton also noted the history of soreness in the plaintiff's right shoulder with movement into abduction or elevation, particularly in the upper ranges. The plaintiff reported that these problems had caused him to avoid lifting with his right arm and had caused resultant frustration due to inability to resume his pre-injury sporting activities comprising weight training in the gym, surfing and swimming. 110Dr Dalton stated that on his first examination of the plaintiff there was "no visible signs of muscle wasting or deformity of the biceps muscle belly". It appeared from that description, that Dr Dalton's finding in this regard was based on observations rather than on measurements of the biceps muscle. In fact Dr Dalton explained in oral evidence that his notes did not disclose that he had made any measurements of muscle wasting. 111Dr Dalton drew attention to the fact that the plaintiff had what he considered to be a very muscular upper torso with a protracted posture due to muscle imbalance. He noted that he had observed a painful arc of the plaintiff's right shoulder, with movements in the range 50 degrees to 160 degrees of elevation. He also noted what he described as mild slight restriction of internal rotation at the right shoulder. He also noted that in the prone position, there was relative weakness of the scapular stabilisers with external rotation and extension of the right shoulder, associated with some pain when lying in the prone position. 112Dr Dalton gave his initial diagnosis without the benefit of the information available from the MRI scan taken of the plaintiff's right shoulder on 3 March 2009, some 14 days following his examination. Dr Dalton made the following initial diagnostic comment: "... The mechanism of injury whereby Mr Meakes apparently fell on his right elbow could well have aggravated an underlying degenerative rotator cuff tendonopathy. I think it is unlikely that an acute or significant rotator cuff tear was sustained at that time given the clinical notes of Dr Hingerty and his reported symptoms, but he may well have sustained an injury to the rotator cuff tendons as a result of the fall. It is equally possible that a mild injury or aggravation was sustained at that time and was further aggravated by the need to sleep on his right shoulder following the injury to his left chest. It is quite clear however that following the subject accident Mr Meakes has developed symptoms and signs of a symptomatic rotator cuff tendonopathy of his right shoulder which has failed to respond to treatment to date and which impacted on his ability to undertake his normal social and recreational activities. Opinion Given his age, the history of previous injuries (notably the fracture of his distal clavicle) and his sporting pursuits over the years it is entirely possible that the rotator cuff tears identified on ultrasound were degenerate and pre-existed the subject accident. That scenario is not usual but it is quite clear from the history and Mr Meakes (sic) normal social and recreational activities that such pathology had not been symptomatic prior to the subject accident. There is also the possibility that a small tear resulted from the fall that was sustained at that time. Further investigation with an MRI scan of his right shoulder would clarify the extent of the underlying rotator cuff tendinosis and/or tears and would go some way to determining whether those changes are more likely to be acute or chronic. The results of that investigation may also influence any decision regarding further treatment. This man's complaints are consistent with the mechanism of injury and findings of examination. No inconsistency between his reported symptoms and restrictions and my findings on clinical examination were noted. No signs of pain or illness behaviour were apparent at this assessment." Second report of Dr Dalton - 1 June 2010 113It was not immediately clear from the terms of Dr Dalton's second report dated 1 June 2010, which was prepared in response to an unidentified letter of request, as to whether Dr Dalton had in fact re-examined the plaintiff between the time when his first report was sent, and when his second report was prepared. The reference in the second report to "clinical examination today" , which appears at page 4 of the report, was clarified in Dr Dalton's oral evidence when he confirmed that " today " was a reference to 16 February 2010 and not 1 June 2010, the latter date being the date on which he signed off on his second report. 114In his second report, Dr Dalton referred to the 3 March 2009 MRI report of the plaintiff's right shoulder in the following terms: "... Subsequent to that [earlier] assessment Mr Meakes underwent an MRI of his right shoulder which was performed on 3 March 2009. That revealed a severe insertional supraspinatus tendonosis with a full thickness tear measuring approximately 4 mm in width and without significant retraction. There was also some intermediate articular surface tearing extending over approximately 12 mm extending to the footprint on the greater tuberosity. The tear extended across the rotator interval with a high grade articular surface partial thickness tear of the subscapularis allowing medial subluxation of the long head of biceps tendon which was noted to be grossly thickened and hyper-intense in keeping with severe tendonosis. A longitudinal split tear within the long head of biceps tendon was reported. There was also evidence of early atrophic change in the superior fibres of the subscapularis muscle belly" 115Dr Dalton's second report went on to state: "... Mr Meakes told me that he feels that his nocturnal pain is much as it was prior to surgery. He has started doing some gentle breaststroke but has not resumed weight-training in the gym. He feels that his shoulder is worse than it was prior to surgery and that his condition has plateaued. He finds this very frustrating as not only does he have ongoing pain but he has also lost muscle bulk and strength as a result of not being able to maintain his weights in the gym. He has resigned his memberships from the gym and also the golf club given that he hasn't been able to play a proper round of golf since the MVA. Mr Meakes told me that he purchased a rural property and farm in 2009 but he has been unable to do the fencing and other manual tasks around the property on account of his shoulder. His shoulder pain has also limited his capacity to do home maintenance and at the moment his son mows the lawn" 116Dr Dalton's second report records that the plaintiff's only significant reported residual problem to be with his right shoulder, with pain localised mainly to the posterior aspect of the shoulder and an awareness of pain with both active and passive elevation of the right arm. An associated problem was reported to be the experience of pain when sleeping on the right side, with occasional waking at night. Dr Dalton also noted the plaintiff's complaint of limitation of the ability to do strengthening exercises in both passive and active elevation of the right shoulder. 117In his second report, Dr Dalton's description of his clinical examination of the plaintiff made no reference to any observations or measurements of any muscle wasting of the plaintiff's right upper limb or shoulder. His second report stated: "Clinical examination He displayed full active elevation of the left shoulder with 150 degrees of forward elevation and 145 degrees of active abduction. This compared to the right shoulder where he had 105 degrees of active flexion and 90 degrees of active abduction. External rotation with his arm by his side was unrestricted but external rotation in the 90 degree abducted position was limited to 70 degrees. He reported pain with passive elevation of the shoulder beyond 90 degrees at which point he displayed some guarding and muscle co-contraction. When lying supine I was able to achieve a near full-range of external rotation in abduction although this was associated with some pain at end-range. His pain was felt posteriorly. Passive elevation was limited by pain and muscle guarding with palpable co-contraction of the latissimus dorsi. Pain was clearly felt at the posterior aspect of the shoulder with tenderness over the posterior rotator cuff and in the posterior axilla. He reported pain with resisted abduction, flexion, internal and external rotation. Pain was felt with all isometric testing of the rotator cuff muscles. Overall, his shoulder appeared to be more irritable than it was at his last assessment and there has been a definite loss of both passive and active glenohumeral motion" 118Dr Dalton was of the opinion that the plaintiff did not appear to have benefited symptomatically or functionally as a result of the surgery that Dr Quain had performed on him on 16 April 2009. He observed that the plaintiff was affected by some muscle imbalance and muscle co-contraction which could be contributing to his pain, which appeared to Dr Dalton to be of mechanical origin, and localised to the posterior aspect of the right shoulder. He also observed that recovery from rotator cuff repair surgery could take a variable course, and was often delayed as a result of post-traumatic capsulitis. He was also of the opinion that the plaintiff had developed post-operative stiffness in his right shoulder, which was a recognized complication of shoulder surgery in his age group, and that this had left him with a less than full range of elevation movement of the shoulder. 119Dr Dalton expressed the following view: "...In my opinion, he presents with symptoms and classical signs which are consistent with a symptomatic rotator cuff tendinopathy, mild capsulitis, as well as some scapulohumeral dysfunction related to muscle co-contraction and guarding in response to his pain. It is difficult to determine whether the rotator cuff repair is intact given his general irritability during the examination but if he fails to improve then further investigation with an MR arthrogram would help to determine whether the rotator cuff repair remains intact and the extent to which there is post surgical scarring and capsulitis." 120Dr Dalton also observed that unfortunately for the plaintiff, his frustration appears to be greater, given that his right shoulder function now appeared to be less than it was prior to the surgery, and Dr Dalton appeared to have accepted that this had an impact on the plaintiff's normal domestic, social and recreational activities, as the following extract of his report, confirms: "... He is unable to play golf, exercise in the gym or undertake physical tasks on his rural property but his reported complaints and disabilities are consistent with the underlying pathology and findings on examination. Unfortunately, he reports that his symptoms are worse and his loss of function is greater since undergoing surgery and that was confirmed with my clinical examination today. However, his condition has not stabilized and there is some potential for further recovery at this stage." 121Dr Dalton confirmed that there were no inconsistencies between the plaintiff's reported symptoms, complaints and restrictions, and his findings on clinical examination. He noted that the plaintiff's condition had not yet stabilised, and he pointed to the possibility that there may be some improvement with the passage of time. He suggested ongoing physiotherapy and other forms of treatment for a further 3-6 months, including attention to the correction of the plaintiff's posture and muscle imbalance. 122On the question of the aetiology of the plaintiff's right shoulder problems, Dr Dalton referred to his original assessment in Sydney 2009 and stated: "... At the time of that report I opined that more likely than not the rotator cuff tendinopathy was degenerate (sic for degenerative) and pre-existing at the time of the fall but there was the possibility that a small rotator cuff tear was sustained at that time, although that appeared to be unlikely given his presenting symptoms when he was initially assessed by Dr Hingerty. It is my view that more likely than not Mr Meakes had a pre-existing rotator cuff tendinopathy which subsequently became symptomatic. ..." 123Dr Dalton took the view that when he saw the plaintiff in February 2009, before the 3 March 2009 MRI scan had taken place, the plaintiff's condition did not warrant surgery. Obviously, Dr Quain took a different view in recommending surgery to the plaintiff 124Significantly, in his second report, after reviewing the pre-operative MRI scan of the plaintiff's right shoulder, Dr Dalton expressed the following view: "... It is also my view that the [tendon] pathology noted at the time of surgery was to a large extent representative of a degenerative rotator cuff tendinopathy with tearing. Unfortunately, it is often difficult to determine if and when surgery is required in such cases and the results of surgery can be unpredictable with an accepted risk of post-traumatic stiffness and ongoing symptoms related to the underlying degenerative tendinopathy." 125The above opinion was expressed by Dr Dalton without access to Dr Quain's operation note. The clinical basis upon which Dr Dalton expressed the view that the pathology seen at surgery was largely representative of a degenerative tendinopathy with tearing, was not self-evident in his report. This issue was later explored in Dr Dalton's oral evidence. Third report of Dr Dalton - 18 October 2010 126Dr Dalton saw the plaintiff for a third time on 7 September 2010 and this led to the preparation of his third report which was dated 18 October 2010. The letter of request for a third report from Dr Dalton was tendered in evidence as Exhibit "T". That letter enclosed the medical reports and materials that I have already summarised in a preceding section of these reasons. In that letter, Dr Dalton was asked to comment on the plaintiff's injuries, his current complaints, his disabilities, the prognosis, the effect of the plaintiff's injury on his work ability, his need for future treatment and the costs of such treatment. 127In his third report, Dr Dalton updated the plaintiff's history and confirmed that the plaintiff had ceased physiotherapy in July 2010, but had nevertheless continued his exercises at home. The report also recorded the plaintiff's statement that Dr Quain had told him that his shoulder condition had plateaued and was unlikely to change. 128Dr Dalton noted the plaintiff's ongoing complaint of residual sharp transient pain at the posterior aspect of the right shoulder on sudden movements but which was not present at rest. He noted that the plaintiff still experienced pain on sleeping on his right side, which caused him to wake at night. He also noted the plaintiff continued to occasionally take painkillers at night. Dr Dalton also recorded the plaintiff still lacked mobility of the shoulder in elevation and abduction and had an inability to resume normal weight training, being restricted to only light weights. Dr Dalton recorded a history that the plaintiff had not returned to the gym, had not resumed playing golf, and had not undertaken physical activities on his property, such as fencing. Essentially, he was of the view that the plaintiff's current complaints, his level of function and the findings revealed on his examination, had not significantly changed from the examination he had carried out on the plaintiff on 16 February 2010. 129Dr Dalton noted the plaintiff still continued to exhibit " a somewhat protracted posture with mild restriction of cervical rotation ". Dr Dalton compared his findings on examination on 7 September 2010, with his findings on examination on 16 February 2010. In this regard, Dr Dalton stated: "... He still presents with a somewhat protracted posture with mild restriction of right cervical rotation. Examination of the shoulder revealed no difference in mobility from when he was examined in February 2010. Active movements are still limited to 105 degrees active flexion and 90 degrees active abduction of the right shoulder with mild restriction of external rotation in the abducted position but no loss of external rotation in neutral abduction. As before he still displayed some guarding and muscle co-contraction with passive elevation of the shoulder but when lying supine I was able to achieve almost full range of external rotation in abduction. Passive elevation and flexion of the arm was limited by pain with associated muscle guarding. There was visible and palpable co-contraction of the latissimus dorsi muscle and Mr Meakes reported pain felt at the posterior aspect of the shoulder with some tenderness in the posterior axilla and over the posterior rotator cuff muscles. As before, he reported pain with resisted abduction, flexion, internal and external rotation. Overall, I felt his shoulder was somewhat less irritable than it had been at his last assessment". 130The interval between these assessments on 16 February 2010 and 7 September 2010 was 7 months. 131Dr Dalton expressed the opinion that the plaintiff had not yet exhausted his options for treatment. He thought it was worthwhile for the plaintiff to pursue soft tissue therapy and muscle energy release, as he thought some of the plaintiff's loss of shoulder elevation was due to muscle guarding and co-contraction, which may benefit from such therapy. In oral evidence Dr Dalton explained that the factors of co-contraction and guarding were not necessarily intentional, and could operate concurrently. He thought that an MR arthrogram would be of assistance in determining whether the surgical repair of the plaintiff's rotator cuff had remained intact, and could determine the extent to which there was post-surgical scarring and capsulitis which may be restricting his shoulder joint movement. 132Dr Dalton concluded his third report by undertaking an analysis of the plaintiff's medical reports that had been provided to him. He undertook a summary of the plaintiff's history in the context of his own previous opinions. He concluded as follows: "In terms of causation, I believe there is little doubt that the rotator cuff tendinopathy and tear identified on investigation and at surgery are largely degenerative in origin and did not result directly from injuries sustained in the subject accident. To what extent there was symptomatic aggravation as a result of injuries sustained at that time is unclear. It is noted that Mr Meakes suffered abrasions to the right elbow and therefore some aggravation of the shoulder may have occurred at that time although it may not have been clinically apparent. A more likely scenario is that the pre-existing rotator cuff tendinopathy became symptomatic as a result of Mr Meakes having to sleep on his right side following the injury to his left ribs. Other than a previous fracture of his right clavicle sustained in 1980 there is no indication that he had experienced right shoulder problems prior to the MVA. I have examined the clinical notes of Dr Bruce Greig and in records dating back to 15 August 2001 up until the time of the MVA I can find no reference to right shoulder symptoms. In conclusion, my view is that Mr Meakes had a pre-existing rotator cuff tendinopathy which had reportedly been asymptomatic. Subsequent to the MVA his right should became symptomatic, most likely as a result of sleeping on his right side in bed. He may have suffered a mild aggravation as a result of the fall although there is no documentation to suggest that this was clinically apparent. Unfortunately, a rotator cuff tear and tendinopathy can become symptomatic following innocuous trauma. In a gentleman such as Mr Meakes where there are pre-existing postural and muscle imbalance problems around the shoulder girdle continuation of symptoms is more likely. Opinions may differ as to whether or not surgery was indicated in this case. I formed the view that when I examined Mr Meakes in February 2009 surgery was not clinically indicated and that a more comprehensive exercise programme was of potential benefit. Unfortunately, the results following rotator cuff surgery can be unpredictable and at the current time Mr Meakes is left with ongoing pain and shoulder dysfunction which prevents him from resuming some of his pre-injury recreational and social activities." Oral evidence of Dr Dalton 133Dr Dalton gave oral evidence in addition to the opinions he had expressed in his 3 reports respectively dated 20 February 2009, 1 June 2010 and 18 October 2010, that were admitted into evidence: Exhibit "5". The defendant sought to elicit additional evidence from Dr Dalton in terms that extended beyond the confines of the exhibits that comprised his reports. That additional evidence was rejected for the reasons appearing at paragraphs [150] to [189] of my reasons. 134Dr Dalton explained that over the previous 25 years, his clinical practice has been primarily concerned with shoulder injuries and rotator cuff pathology, both in the areas of research and in publications. 135Dr Dalton said that following his clinical examination of the plaintiff, he considered that the plaintiff's prior history of fracture of the clavicle was not a contributor to the shoulder symptoms which were the subject of this claim: T183.23. 136In essence, Dr Dalton's oral evidence was to the effect that with normal ageing, the natural progression was for the degeneration of rotator cuff tendons in a variety of ways, ranging from tendonitis or inflammation of the tendon, partial tears, full thickness tears, delamination or longitudinal tendon splitting, all of which are encompassed within the umbrella diagnosis of tendinopathy: T183.30 - T183.48. He stated that even full thickness rotator cuff tears of significant size, and due to degeneration, can be asymptomatically present even where there is full movement: T184.45; T185.40. He also stated that tendinopathy was a normal ageing process in the rotator cuff tendon: T185.45. He further explained that tendinopathy could be due to degeneration within a tendon over time, whether by over-use or otherwise, so that a single trauma could cause haemorrhaging or tearing with resultant pain: T185.10 - T185.30. He also stated that trauma can either cause a delamination or splitting injury, or alternatively, an underlying tear can be added to by superimposed trauma: T184.2. 137It was against that background explanation that Dr Dalton proffered the view that the rotator cuff tears in the plaintiff's right shoulder that were evident on ultrasound examination carried out on 8 September 2008 were degenerative in origin, and could have pre-existed the injury in question: T185.50 - T151.1. 138Dr Dalton explained that an asymptomatic tendinopathy of the rotator cuff could be made symptomatic by trauma, such as by a fall on an outstretched arm, a rapid throw of a cricket ball, a serve of a tennis ball, other activities ranging from digging in the garden to swimming, lifting weights, playing tennis regularly, summed up as either due to injury, or due to over-use, with symptoms appearing on waking: T186.5 - T T185.15. I did not understand the illustrative examples cited by Dr Dalton to represent an exhaustive list of possible causes. 139The history given by the plaintiff concerning his involvement with swimming was explored with Dr Dalton. In his first consultation with the plaintiff, Dr Dalton recorded that the plaintiff had informed him that he had participated in the " occasional light swim but not freestyle ": T 186.45. Dr Dalton confirmed that this was the only item of history provided to him by the plaintiff on the subject of his participation in swimming after his injury: T187.49. Dr Dalton described that item of history as having been recorded in terms as verbatim as it could be, but he acknowledged that his note of that history bespoke the answer to the question he had asked, rather than a verbatim account of the question itself: T188.13. 140Dr Dalton explained his view of the significance of the MRI findings of the plaintiff's right shoulder taken on 3 March 2009, which was approximately 2 weeks after his first examination of the plaintiff on 17 February 2009, and which was in turn, 6 months after the plaintiff's injury. In this regard, at T188.37 - T189.9, Dr Dalton made the following observations: "Q. You have recorded the MRI scan done 3 March, 2009 revealed a severe insertional supraspinatus tendinosis with a full fitness [sic for thickness] tear measuring approximately four millimetres in width and without significant retraction. I won't read the rest of it out it's in your report. What if anything assistance were the MRI findings to your diagnosis of Mr Meakes shoulder problem? A. The MRI revealed evidence of tendinopathy and tearing within the supraspinatus tendon. It also revealed tear extending into the subscapularis which is another tendon on the front, along with a tear in the biceps tendon and medial subluxation. The subscapularis tendon covers the biceps tendon and keeps it in a groove and if it has been torn the tendon can displace out. That's fairly extensive pathology over quite a wide area so the [sic for to] have that pathology as a result of trauma that's a significant amount of pathology, plus a lot of those changes were clearly longstanding. The evidence of atrophy in the subscapularis muscle barely refers to the other tendon on the front of the shoulder. So my conclusion in that was that there was evidence of longstanding, widespread degenerative changes within the rotor cuff and biceps tendons. Q. Did that later [finding] in any way [alter] the diagnosis arising from the first examination in your report? A. Not in the sense that that was consistent that Mr Meakes had a rotator cuff tendinopathy that would account for the symptoms that he had when he presented to me initially." 141Dr Dalton re-iterated his earlier view that when he saw the plaintiff on 17 February 2009, which was before he had shoulder surgery, he felt the plaintiff would have benefited from a comprehensive exercise programme and that surgery to the shoulder was not warranted. He noted that the plaintiff did not appear to have benefited from surgery in the 12 months after the surgery and he still had limitation of movement, more pain on examination than before, and his function in the shoulder was significantly less than when he had previously assessed the plaintiff: T189.28 - T189.26. 142Dr Dalton noted that there was evidence of muscle imbalance and co-contraction in the muscles of the plaintiff's right shoulder. At T189.28 - T191.27, he explained this in the following terms: "Q. You referred in your first report to muscle imbalance is that something that persisted on examination at the time of your second report? A. Yes. Q. What is this muscle imbalance that you're describing? A. With the shoulder the arm pivots and rotates in the socket and the rotator cuff sort of holds it in place and if the arm elevates it has to slide underneath this bone above. So when you get pain when you lift your arm it will either occur because there's a abnormality in the tendon as it rides through or you can actually get pain with normal tendon because the movements abnormal, if you like pinches the tendon, so in everybody who has this sort of what we call painful arc there is an element that may be mechanical whereby the arm moves in a way that if you like jams up against the overhanging bone. If you are tight in some muscles and weak in other muscles that movement is what you call a synchroniser, it's not correct and that can generate pain. So you see those symptoms in young people or young athletes who have relatively normal tendons simply because they have loose shoulders or tight shoulders or poor muscle balance. You certainly see that a lot in weight lifters because they do a lot of weight training where they get an imbalance in their shoulders and my feeling with Mr Meakes was that that was an area that hadn't been explored and may benefit him. HIS HONOUR Q. Did this have something to do with the concept of co contraction which you've mentioned in your report? A. Co contraction developed at subsequent times and that is certainly an interesting phenomenon that you see in shoulders. You have patients who literally cannot elevate their arm above 90 degrees because for whatever reason some muscles are pulling down as other muscles are pulling up. I liken it to driving with your foot on the brake and accelerator and you will have patients that literally will do that and if you get them to retrain they can restore full movement. So it's a significant finding as part of managing shoulders in my practice. Q. I'm just closing that off, what causes co contraction? A. Co contraction can be learned in a sense that if your brain is saying this is going to hurt and another part of the brain says I don't want to go there, so it can be an avoidance of pain, whether that's conscious or subconscious is often difficult to discern. It can be-- Q. Is that synonymous with guarding? A. It's a sort of guarding, but guarding, you can have guarding where you're just reluctant to move, but this is an actual palpable contraction of the muscle that's resisting the arm going up at the same time as other muscles are pulling up. So it can be responsive pain, it can be an imbalance, it can be voluntary, it can be involuntary. You have patients - I've seen patients that are like that and you show them what they're doing wrong and they can walk out of the room doing it better. Other patients have real problems because they've learnt this pattern so there's a very heterogeneous group. It can be a voluntary guarding or involuntary guarding. CLEARY Q. Co contraction aside, in terms of muscle imbalance did you reach a conclusion as to the likely cause of that as it presented in Mr Meakes? A. Yes, I felt not having the opportunity to treat Mr Meakes, it was difficult to say whether this would have responded to intervention such as massage or physiotherapy to change that. So I didn't have an opinion on whether it was intentional or unintentional or pain generated or otherwise. Q. Could it be something that arose from a particular for example, weight training regime which had artificially developed muscles in one area but not in others? A. Certainly, one of my comments in my reports has been that Mr Meakes is very strong and dominant in certain muscle groups and those muscle groups that are the most dominant are the ones that actually pull the arm down, so muscles that are co-contracting are very much the muscles that are working in this position so weights can reinforce that, yes. Sorry, weight training can reinforce that. Q. Do you believe that with perhaps the assistance of a sports physiologist or other expert, Mr Meakes could rework his training regime to overcome or correct that imbalance? A. Yes I think the difficulty once surgery has happened, things change, but I think I commented in my initial report that a modified exercise program had some potential to be of benefit. Q. The final occasion on which you examined Mr Meakes-- HIS HONOUR: Sorry, before you leave the second report if I may Mr Cleary. Q. When you said you had no opinion on the course of the balance(?) [cause of the imbalance] because you hadn't examined him I'm just asking you to go to page 4 of your second report under the opinion section, you say in the first paragraph there that there are no inconsistencies between his reported symptoms and complaints and the restrictions and your findings on clinical examination. So how do I read that sentence in the light of your previous answer? A. What I said in terms of what the guarding was due to going back to my previous comment about the variety of causes I didn't have an opportunity to form an opinion as to whether that would respond to soft tissue releases or re-training. The findings of the examination were consistent but that doesn't help me to determine whether the guarding of the co-contractor(?) was a learned behaviour, pain mediated, muscle imbalance that had been set in through exercises that he was doing, so I didn't have the opportunity to examine him. What I meant to [say to] your Honour was I didn't have an opportunity to treat if you look, or to re-train or look and observe over a period of time to see it with some constructional changes that would modify. Q. Do you mean to analyse it over time? A. Yes." 143Dr Dalton's evidence was also directed at the issue of the causation of the plaintiff's post-injury problems. In this regard, at T192.27 - T192.40, Dr Dalton stated: "CLEARY Q. Dr Dalton on the assumption that Mr Meakes was struck by a motor vehicle and as the result of that that he fell onto the road landing on his right elbow and that that event rendered symptomatic pre-existing tendinopathy in his rotator cuff, at what stage would you expect the symptoms to present? A. That would depend on the extent of the aggravation in a sense. If it was an aggravation sufficient to cause tearing or damage to the tendon I would expect the symptoms to develop probably over the next 24 hours, often after the night's sleep. So the extent of aggravation is relevant in terms - so if someone had injured a shoulder and rendered it tendinopathy symptomatic the extent of symptoms and the delay of onset of symptoms gives some indication as to the extent of aggravation, if that makes sense. So certainly in terms of tendinopathy as I said is a general term, if you say do I think such a situation would be consistent with a tear, no. Do I think it's consistent with a mild aggravation that may have - it's possible, yes." 144The causative significance of the plaintiff's participation in the ocean swim at Maui within a month of his injury was explored with Dr Dalton at T193.10 - T194.40, in the following terms: "CLEARY Q. Dr Dalton could the plaintiff within a month of the accident swim in open water for say 52 minutes using an overarm swimming style but modified such that his left arm was extended forwards fully in the course of each stroke such that he was breathing as he always did to his left side and that he was using his right arm in a rounded fashion keeping his elbow bent rather than fully extending it, could participation in such activity have aggravated rotator cuff tendinopathy? A. Yes. Q. Could participation in such activity be the reason for the continuance of symptoms beyond one month post accident in time, beyond that time? A. Yes. Q. Do you believe that that is a more likely explanation for the persistence of symptoms than the trauma of the motor vehicle accident as you understand it? A. If that's the situation, yes. On the basis that, if I could qualify that your Honour. If a patient had a rotator cuff tendinopathy or tear that has been aggravated as a result of an injury, modified stroke or otherwise, because breaststrokers get the same problem, I would be surprised if that individual could undertake those activities without significantly aggravating their shoulder. I certainly wouldn't be advising them to do it and I would expect then to be an increase in symptoms if the tendinopathy was symptomatic before embarking on that sort of situation. HIS HONOUR Q. We are often told that swimming is a low impact activity on the joints so could you correlate that for me? A. The commonest problem with swimmers is shoulder problems your Honour, we talk about swimmers' shoulder and in fact this type of scenario with the rotator cuff one of the commonest causes of a rotator cuff becoming symptomatic in the older group is swimming so certainly at the athlete level the commonest problem swimmers get is shoulder problems, we talk about swimmer's shoulder as being one of the commonest thing we see, so swimming is an activity, it is not just the reaching it is the what I call the intel rotation, it is the pulling through, it is a rotation that is quite aggravating. So one of the commonest complaints with patients with rotator cuff problems is that kind when they swim. Q. The motion you have just described is a downward pushing of the water back as it were, down and back.? A. That is why breaststroke is the same problem anything where you are moving your arm away from your body it is almost, short of doing it like a doggy paddle the minute you take your arm out to the side, whether it is a round arm or a shortened stroke there is still what we call abduction, there is still rotation, a lot of patients with back pain who I have who swim for their rehabilitation, when they get a shoulder problem they can't maintain their rehabilitation, so they get frustrated because they can't exercise and the problem with swimming is that short of literally holding a kick board, or doing doggy paddles it is very hard to do any of the strokes without potentially aggravating a shoulder problem. Q. The modified swim the plaintiff described involved him using the left arm overarm and right arm in a lateral sweeping fashion coincidental with a body tilt in connection with his breathing so it would appear to me that the left arm was doing all the work, does that make sense to you? A. Well then if I have a swimmer with a shoulder problem I advise them to breath to the symptomatic side because you are better off turning your head and rotate as you are going - if you are breathing to your left side and you have a bad right shoulder you are actually placing all that on your shoulders, I would actually advise someone to breath to their bad side and certainly you can modify your stroke and that will reduce the amount of aggravation then you have to take into account things like the length of the swim or the type of water and all those things, but certainly reducing the reach will help but I would normally - one of the things you advise patients to do is actually increase their body roll to their sore side so that they don't have to - whereas if you roll to the other side you are actually placing more load, so they're the sort of things you'd advise a patient who has a should problem to avoid aggravating it. CLEARY Q. And as you've said had there been any significant aggravation of Mr Meakes' rotator cuff in the motor vehicle accident you would be most surprised if he was capable of participating in such an event? A. Yes, of course every individual is different with what they do but I would be surprised if there'd been a significant - certainly if there had been a tear and as I said I think a tear is highly unlikely to have occurred I would be surprised that the injuries could undertake that sort of swim without aggravating that shoulder. Q. Had Mr Meakes not participated in such an event is it possible that there could have been a resolution of his shoulder problem over time without surgery? A. On the basis that the rotator cuff tendinopothy and these changes that are present are relatively common." 145At this point in Dr Dalton's evidence there was an objection to the defendant seeking to adduce opinion evidence from Dr Dalton as to whether it was more probable than not that the plaintiff's shoulder problems would have resolved without surgical intervention. That evidence was excluded by an evidentiary ruling because the defendant could not point to exceptional circumstances justifying the late introduction of opinion evidence on this topic where such evidence had not been the subject of a reasoned opinion that had been served in accordance with the rules: Uniform Civil Procedures Rules 2005, r 31.28(4); Sch 7, cl 5(c). 146Although at page 5 of Dr Dalton's first report dated 20 February 2009 he stated he would not recommend surgery, Dr Dalton was not treating the plaintiff, and I do not consider that this portion of Dr Dalton's report represented an adequate basis, supported by reasons, for introducing evidence to the effect that the plaintiff's right shoulder problems would probably have resolved without surgery. I consider that to have been so because on the same page of his report, Dr Dalton had flagged that surgery may be needed if there was no further improvement, particularly since it was then noted that the plaintiff's right shoulder condition was not stabilised at that time. Ultimately, whether or not surgery was indicated on clinical grounds was a matter of clinical judgment by the treating specialist, Dr Quain. Dr Quain's evidence in the form of his reports, was not challenged. In any event, Dr Dalton conceded there was room for debate on the subject. 147On the issue of the approach to be taken to clinical examination of any muscle wasting present in the upper limb and shoulder, Dr Dalton's approach appeared different to the one taken by Dr Mastroianni. Whereas Dr Mastroianni actually measured wasting of the plaintiff's right biceps muscle - Exhibit "A", Dr Dalton did not record any measurements of the upper limbs in his own clinical examination of the plaintiff. Dr Dalton explained that this was because he considered there was no clinical indication for him to do so in the context of a medico-legal examination: T199.40 - T200.9. 148At the conclusion of his evidence, at T200.10 - T201.37, Dr Dalton was to identify the analytical factors that led him to generally conclude the plaintiff's tendinopathy was of longstanding origin rather than being due to trauma: "HIS HONOUR Q. Mr Dalton, if you could go to your second report of 1 June, the first page of that report, Mr Cleary asked you some questions about the MRI findings which, in your discussion on that topic, led you to the conclusion that the tendinopathy was to be interpreted as longstanding because there was no - well just leaving it there, longstanding, I think, was the summary of your opinion. Is that correct? A. Yes. Q. If you go to the last sentence of that paragraph, you refer to evidence of early atrophic change in the superior fibres of the subscapularis muscle belly. Am I correct in assuming that early atrophic change refers to a small degree of change? A. Yes, and that is an MRI you will see - you'll see it on an MRI and you may see it before you see clinically and the subscapularis muscle is not visible. Q. So if that's the case and those early atrophic changes are accepted in that vein, then how does that sit with the earlier view that the tendinopathy was of longstanding origin? A. The reason for reaching that conclusion was based on early atrophic change. It can often take - it will take a while to develop. It depends, in someone who has had a significant injury and not used their arm, it will occur more rapidly. But the point with this was that there was tearing of varied severity, extending across a wide area of the rotator cuff, and importantly there was also gross thickening and changes in the bicep tendons suggesting a severe and significant tendonitis, so encompassing all of that, it was a wide area that was involved. In shoulders that I see, that is a typical finding of someone who has had a longstanding degenerative change in their shoulder. Q. What are the analytical factors that point you more towards the longstanding nature of such a problem, rather than a more recent trauma? A. If you have a single traumatic event, if I could use an analogy, in the lumbar spine, for example, if you have someone who has three disc problems and there is a history of an injury, it's highly improbable that a single injury would cause changes in three discs at the same time. These type of tears, you know, where there is a small tear there is tendinosis, there is an insertional tear there is a partial thickness over a wide area, for that to occur as a single event that would have to be a significant event, a shoulder dislocation, major trauma, which would have affected several areas of the rotator cuff and the biceps at the same time. So that's not to say that a portion of that may not have been aggravated by a single event, but as a whole that would not be consistent with a single injury of the severity that is presented from the history. If you dislocate your shoulder over the age of 50, you have a 70 to 80% chance of having a rotator cuff tear because the tendons at that age are degenerate and then the damage may be quite extensive, but that's a significant trauma. The patient has significant pain, bruising, weakness. It's evident clinically they've had that sort of trauma. Q. Finally, on the second page of this report, I wonder if you could help me reconcile something, this report was based on an examination some five months earlier and on the second page, in the first paragraph, there's a reference to the plaintiff having seen a physiotherapist on 5 June, which either postdates your report by four days or predates it by nearly a year. Can you assist me with that? A. I believe that refers to 5 June 2009, your Honour. Q. On the third page of this report, in the fifth-last line of that paragraph, you refer to the factors of muscle per [sic for co-] contraction and guarding in response to pain. From a medical diagnostic point of view, is it important to differentiate which of those factors is at play or does it not matter? A. It is important because-- Q. And if so, how do you do it? A. You do it on the basis of the clinical examination to the best of your ability, so the rotator cuff tendinopathy is usually symptomatic with specific clinical tests that you will do. The capsulitis usually you diagnose because there's a restriction of movement, but that's very difficult to differentiate from restricted movement because of pain or guarding. So it is important, but it can be very difficult to differentiate and in some cases you might even resort to doing things like an injection into the joint to see if that changes the pain. So, yes, it can be difficult. Q. Must they operate mutually exclusively or can they operate in conjunction with each other? A. They can all co-exist, so you can have one, two or three components contributing to the problem." 149I will analyse the significance of the issues arising from the foregoing array of medical evidence in arriving at my findings concerning the injuries suffered by the plaintiff in the collision in question. Those findings appear at paragraphs [268] to [300] of my reasons.

Exclusion of reports of Dr Dalton served during the trial 150On 24 November 2010, which was the third day of the trial, the defendant sought to tender 2 additional and late served reports from Dr Dalton. Those reports were respectively dated 22 and 25 (sic for 24) November 2010. The proposed tender of those reports was the subject of vigorous objection by the plaintiff. After exploring the circumstances and hearing argument concerning the admissibility of those reports, I rejected the tender for reasons that were plain from the transcript of interchanges with counsel during argument. At that time, since several witnesses had been delayed by the argument on admissibility of the reports, I gave very short reasons for rejecting the tender, and indicated I would include in these reasons for judgment, my more detailed reasoning for the rejection of those reports. The rejected reports were respectively marked MFI "5" and MFI "6". 151In the paragraphs that follow, I set out my more detailed reasons for the rejection of the two further reports from Dr Dalton that the defendant sought to tender.

Report of Dr Dalton dated 22 November 2010 152The 22 November 2010 report of Dr Dalton was prepared by him in response to a request from the solicitor for the defendant asking that he comment upon an item of history that was explored with the plaintiff in cross-examination. The substance of the matter comprised concessions made by the plaintiff concerning his participation in an open water ocean relay social swim, together with some other members of his social swimming club, the Tattersalls Sociales. That swim took place at Maui in Hawaii, on 30 August 2008, which was approximately 4 weeks after the injury the plaintiff had received in the incident in question. 153The defendant submitted that the information concerning the plaintiff's participation in that swim only came to light when counsel for the defendant had undertaken a Google search in relation to the plaintiff on the day before the hearing, as part of his preparation for cross-examination of the plaintiff. Whilst I accept without reservation that counsel for the defendant acquired that information in this way, it is plain that the information in question was already in the possession of the defendant at the time that counsel had undertaken his Google search. 154The information was in the form of the clinical notes of Dr Hingerty and Dr Greig, which the defendant conceded had been in its possession on or shortly after 31 October 2008. The fact that this well resourced defendant had not appreciated that fact, because, as was argued, the information in question was contained in a medical practitioner's handwritten clinical notes rather than in a formal medical report, is in my view, an irrelevant consideration. 155In this court, as a matter of routine in personal injury litigation, medical records, including handwritten records, concerning treatment and related notes by general practitioners and other doctors are regularly accessed by means of subpoenas often issued at the request of solicitors acting for defendants. It is also plain that such records, when produced on subpoena, or when acquired by consent, are commonly used as a basis for cross-examination of litigants, including as to the nature and effect of any injuries sustained, and as to the timing of the onset of complaints of pain, and related matters. 156I do not accept the proposition that the defendant in this case only became aware of the information concerning the plaintiff's Maui relay swim shortly before the trial when counsel undertook a Google search in relation to the plaintiff. It is clear that the defendant had access to this information at a much earlier point in time due to the availability of the records of Dr Hingerty and Dr Greig. 157Whilst it is obviously true that the content of the plaintiff's evidence given during the course of the hearing, and the detail of the matters explored in evidence, was not available to the defendant before the trial, the information that the defendant now seeks to have interpreted by Dr Dalton was plainly available to the defendant well beforehand. In my view this was within a comfortable time-frame that would have enabled the information to have been briefed to Dr Dalton in a timely manner, along with any questions which the defendant wanted to have clarified or explored as part of the history of the onset of the plaintiff's claimed problems, as commonly occurs in cases such as this involving claims for damages for personal injury. In any event, it appears from Exhibit "T", that the solicitors for the defendant had also sent material that had been produced on subpoena by Dr Grieg, to Dr Dalton on 30 August 2010, if not earlier, having had the records in its possession since late 2008: Exhibit "T", page 2, paragraph 8(a). 158The defendant required the plaintiff to be medically examined by Dr Dalton on 3 occasions, namely on 17 February 2009, 16 February 2010 and again on 7 September 2010. If the defendant's representatives read and analysed the clinical notes of Dr Hingerty and Dr Greig at any stage after late 2008, and before any of those appointments, I consider that the late application to tender Dr Dalton's report of 25 November 2010 would, more likely than not, have been avoided by the earlier identification of these questions. 159In his 22 November 2010 report, Dr Dalton made assumptions concerning the plaintiff's participation in the Maui swimming relay event. These included the assumptions as to the manner of the plaintiff's participation in the event, the nature of the training which Dr Dalton had assumed the plaintiff had undertaken by way of advance preparation for that event, and his assumptions as to the relevance of these matters on the process of assessing the extent and severity of the plaintiff's initial injury. Dr Dalton obviously assumed the effect of these matters in connection with his own probability analysis of the causal connection between the injury in question, the juxtaposed timing of the relay swimming event, and the relationship between these matters and the plaintiff's right shoulder disability. 160Quite apart from any considerations concerning a lack of timeliness on the part of the defendant in obtaining Dr Dalton's commentary on the significance of the plaintiff's participation in the Maui relay swim, I was satisfied that on an analysis of Dr Dalton's reasoning, and on an analysis of his conclusions as set out in his 25 November 2010 report, that the probative value of the report itself was extremely limited because of the necessarily vague assumptions that are evident within the report itself and the relative imbalance in the weighing of the factors relevant to the assessment that led to his opinion. For example, it appears that Dr Dalton's report did not consider or mention the fact that the plaintiff had contemporaneously experienced right shoulder pain following his fall on the roadway on 1 August 2008. That information was acquired by the defendant on 10 December 2008, when its representative, Mr Ellis, the investigator engaged by the defendant, interviewed the plaintiff : Exhibit "J" to the affidavit of Mr Ford sworn on 16 November 2010. 161Examples of the inherent vagueness of the unexplained assumptions implicit in the terms used by Dr Dalton, were the statements "Mr Meakes' ability to participate in such an event" and the assumptions as to "swimming training in preparation for ... the ocean swim" . These matters of assumed preparation and participation were left undefined, which in my view significantly detracted from the probative value of the opinion. 162Dr Dalton's opinion in contention here seems to have been constructed on the fact that when Dr Hingerty had first assessed the plaintiff on 4 August 2008, " there was no reference to right shoulder pain or loss of function at that time ". 163The historical fact of the plaintiff's Maui swim was available from the time when Dr Hingerty's letter dated 31 October 2008, which also enclosed Mr Meakes' medical notes, was received by Allianz Australia Insurance Limited, the defendant's insurer in this case. Those notes were again provided to the solicitor for the defendant by the solicitor for the plaintiff on 23 November 2009. In fact the defendant had itself earlier served a copy of those notes on the solicitor for the plaintiff on 1 December 2008, indicating that the defendant appeared to have considered the forensic significance of the content of those records, and that it had decided that it intended to rely upon the content of those records at the hearing of these proceedings. 164It therefore appeared that the factual matters now sought to be relied upon by the defendant were plainly available for the consideration of the defendant, the defendant's solicitor and its retained medical expert, well before the trial, and did not arise for consideration only when counsel for the defendant had conducted a Google search in relation to the plaintiff. 165In these circumstances, in my view, the matter of the plaintiff's participation in the swim at Maui which was characterised as being " additional history" by Dr Dalton, implying it was previously unavailable for consideration by the defendant and its advisors, was not in reality, a new matter at all. 166Accordingly, I considered that at this late stage of the proceedings, and in these circumstances, the defendant should not be permitted to change the basis of its expert evidence by changing the basal assumptions for expert opinion, which after all, were not just new facts as claimed, but were argued interpretations of already known and described events that were available for consideration at the time Dr Dalton was asked to prepare his further report, but which had not been considered as being relevant at that earlier time. 167In my view the defendant had ample opportunity to beforehand request details or particulars of the plaintiff's participation of the swimming event in question, including by exploring such matters through expert opinion served in accordance with the rules and based on an appointed medical examination. 168I took the view, that in this case the defendant should not be permitted the indulgence of changing its position in the litigation by introducing the changed views of Dr Dalton because, to do so, would unreasonably lengthen the trial and would unreasonably add to the cost of the proceedings where the defendant already had ample time to prepare for the position it wished to take on the issues in the litigation. I consider this to have been the case especially so where the basis of the purportedly changed position of Dr Dalton self-evidently lacked a detailed exposition of his reasoning for these views in contention, and, the assumed matters were not reflective of the factual evidence in the proceedings. In my view these circumstances afflicted the probative value of the report sought to be relied upon by the defendant.

Report of Dr Dalton dated 25 November 2010 169The 25 (sic for 24) November 2010 report of Dr Dalton related to opinions formed and expressed by him after he had been given the opportunity of viewing the DVD sequences of the plaintiff's activities with his family at Manly Beach on 21 November 2010, and which were portrayed in Exhibit "3". That DVD material was viewed by Dr Dalton on the morning of 24 November 2010, the same date on which he had prepared his further report. 170In the report in question, Dr Dalton expressed a number of opinions as to the plaintiff's likely experience of pain in connection with the plaintiff's activities as shown on the DVD sequences. The opinions were expressed in general and non-specific terms, which raised doubts as to the probative value of the report. This was quite apart from any procedural considerations, notwithstanding that subject to considerations of weight, such an opinion was prima facie admissible on the ultimate issue to be determined : ss 79 - 80 of the Evidence Act 1995. 171Following the plaintiff's objections to the proposed tender of this late served evidence of Dr Dalton, the defendant's arguments in support of the proposed tender were then explored in some depth. In the course of these events I formed the view that there were insurmountable obstacles to the report in contention being admitted into evidence, including a real prejudice to the plaintiff if the material was to be admitted. 172Dealing first with Dr Dalton's opinions concerning his interpretations on the plaintiff's activities as shown on the DVD, there could of course be no prohibition on a defendant at any time choosing to obtain DVD evidence of the activities of a plaintiff. The right of a defendant to seek to obtain factual evidence of this kind at a time close to, or during the time surrounding a hearing, and to seek to introduce that evidence during cross-examination to confront a plaintiff at the trial with such material in order to seek to traduce or embarrass the evidence given by a plaintiff in chief, is beyond question. The fact that the defendant exercised that right in this case is unremarkable. 173Such evidence could have been sought by the defendant at any time. In this case, as the proceedings had been exempted from the CARS process, there was no disadvantage to the defendant in doing so because, by reason of that exemption, it was not required to waive any element of surprise, in deciding when to reveal to the plaintiff that it had such evidence. 174However, the position is vastly different where, as was the case here, opinion evidence from a medical expert was sought to be introduced in order to interpret DVD evidence in an attempt to persuade the tribunal of fact on medical and factual matters in issue, such as the plaintiff's likely experience of pain on engaging in certain activity, and on any related matters of credit. 175In those circumstances, as was the case here, in my view, unless the defendant was able to point to exceptional circumstances within the meaning of UCPR r 31.28(4), it was incumbent upon the defendant to observe the rules of procedural fairness and to serve such an expert report on the plaintiff in a timely manner, and to ensure that the report contained the relevant opinions to be relied upon, and in an acceptably reasoned form: UCPR Sch 7, cl 5(a). 176Such a course would be required in order to provide the plaintiff with a reasonable opportunity to meet any such late introduced evidence, including by obtaining his own expert evidence in response, if this was required. 177The defendant conceded as much, but submitted that the requirements of procedural fairness could be met in this case by granting the plaintiff an adjournment in order to obtain his own evidence from a like expert, if it was thought appropriate to do so, even if only for the purpose of testing the opinions of Dr Dalton.

Rejection of tender 178With all due respect to the submissions made on behalf of the defendant, I consider them to be fundamentally and procedurally flawed because they give scant regard to the obligations on the parties to conduct litigation within the spirit of, and adherence to, the requirements of s 56 of the Civil Procedure Act 2005 [" CP Act "]. 179This was in procedural circumstances where, by consent, on 3 February 2010, the Judicial Registrar ordered the defendant in this case to serve its expert medical evidence by 23 June 2010. There is no evidence that the defendant sought leave to vary that order to enable it to rely on the late served evidence of Dr Dalton. Although the plaintiff raised no objection to the tender of the 18 October 2010 report of Dr Dalton that was served beyond the terms of those orders, I cannot draw an inference from that fact alone, that the procedural case management orders that I have cited were varied, as the notations on the court file do not show this to be the fact. 180In my view the position adopted by the defendant in this case with regard to the late served reports of Dr Dalton, without seeking to have the existing case management orders varied, was somewhat presumptuous, and in my view involved ambush tactics of the kind authoritatively criticised as being illegitimate and having no place in modern litigation : Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 per Heydon JA at [30] and Young CJ in Eq at [40] - [45]. 181As was observed in Nowlan by Young CJ in Eq at [42], here the defendant is administering what is more or less a statutory scheme for the compensation of motor accident victims. In those circumstances, I considered that the defendant ought to have behaved like a model litigant. This obliged the defendant to observe the basic rules of procedural fairness. In my view that standard was not met in this instance. 182In response to a question during submissions on this point, it was submitted on behalf of the Nominal Defendant that it should not be treated differently to any other litigant in this court. Irrespective of my view that the defendant ought to have behaved as a model litigant, it, and its legal representatives, were nevertheless required to observe the requirements of ss 56 - 58 of the CP Act , which applies to all litigants, model or not, and to their legal representatives. 183In the circumstances revealed in this case, where a party seeks a procedural indulgence, which if granted, would interrupt the orderly flow of the trial, as would have been the case here, exceptional circumstances are required to be shown by the party seeking that indulgence : UCPR r 31.28(4). In my view, the defendant has not identified any such circumstances in this case. 184In those circumstances, where the problem has arisen as a consequence of a deliberate forensic decision made by a party, as has occurred with the defendant in this case, I considered that leave should be refused as the defendant could not point to any matter of substance that would justify the exercise of discretion to permit it to rely on the reports in question. 185In my view, in this case, it is an insufficient ground for the defendant to simply point to the opportunity for the plaintiff to seek an adjournment in order to meet any such newly served evidence. There are other factors to be considered, including the dictates of justice generally, as well as justice between the parties : s 58 of the CP Act . Those dictates require a consideration of the effect of delay, expense to the plaintiff and the inconvenience to the orderly disposal of the business of the court : Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. 186If the proceedings were to have been adjourned, as the defendant suggested, there is little doubt that for reasons of procedural fairness, as was submitted, the plaintiff would have had to seek out an expert commentary from his own treating orthopaedic surgeon, or one of the other practitioners who had already provided reports, or seek out someone with similar qualifications to those of Dr Dalton, and to then endure the inevitable delay and expense that would be incurred in refixing a date for hearing to accommodate the experts for the purpose of calling oral expert evidence in reply to such late introduced evidence. In this case, such matters are not met by simply making an order for costs against the party in default. In addition to causing the plaintiff to suffer significant delay based prejudice, in this instance the process suggested by the defendant would without doubt disrupt the orderly disposal of the matter by necessitating significant delays in completing the evidence. The deleterious effect of delay on the orderly disposal of the court's business, the efficient use of public resources and the inconvenience to other litigants are not matters that can be ignored : Aon , at [23] - [30] per French CJ. 187In my view, the scenario contended for by the defendant was not facilitative of a just, quick, cheap or efficient disposal of the proceedings, nor did it observe the mandatory requirements of the dictates of justice between the parties : ss 56 - 58 of the CP Act : Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, and more recently, McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308, per Allsop P at [26] - [30]. 188Whilst it is recognised that on occasions, the efficient disposal of proceedings cannot always be achieved by the imposition of case management standards, as was observed by Allsop P in Richards v Cornford (No 3) [2010] NSWCA 134, at [106], in my view, in this case the course that was proposed by the defendant was fundamentally antagonistic to those objects. 189It was for these reasons, that in this instance, I rejected the tender of the 22 November 2010 and 25 November 2010 reports of Dr Dalton.

Surveillance and DVD film of plaintiff's activities 190The defendant showed an edited or non-continuous DVD film of the plaintiff's activities. That film was taken during the afternoon of Sunday 21 November 2010, whilst the plaintiff was taking a weekend break with his family during the course of the trial. The film, which was not continuous in its segments, was of a combined 36 minutes in its duration. The footage showed the plaintiff and some members of his family engaged in outdoor activity at Manly Beach: Exhibit "3". 191The report of the investigator, Verifact, dated 22 November 2010, was tendered as Exhibit "4". That exhibit shows that the defendant sought surveillance of the plaintiff for 15 hours to ascertain his current level of social and physical activity in the context of an injured right shoulder: Exhibit "4", page 1. The surveillance was conducted over the course of 2 days, and showed the plaintiff riding a bicycle and attending the beach with his family: Exhibit "4", p 2. 192The first day of surveillance commenced near the home of the plaintiff on Saturday 20 November 2010, at 6.00am. On that date, the plaintiff was seen to drive his vehicle to a bus station, apparently to drop one of his sons there, following which he drove home. Later, the plaintiff was seen to return to his home riding a bicycle with a beach towel around his neck, from which it was assumed he had earlier left his premises by another exit in order to travel to the beach, which was nearby. Surveillance was discontinued at about 11.00am on that day. 193The second day of surveillance took place on Sunday 22 November 2010, between 8.00am and 6.00pm. During that time, DVD footage was obtained in segments between about 2.40pm, when the plaintiff and his family walked to the beach and remained there for some time, and about 4.00pm, when the plaintiff and his family left the beach to walk home. 194The film taken on 22 November 2010 variously showed the plaintiff running, walking, jogging, kicking a football with his right leg, passing a football with both hands, " duck " diving into shallow waves with his hands held forward and together as if to protect his head when diving, throwing a tennis ball with his right arm, over-arm whilst on the beach, jumping up and down and walking, including up and down steps. The footage also showed the plaintiff laying on a beach towel on the sand, and frequently changing the supporting positions of his arms. Those positions included having his hands behind his head to support his head and neck, and leaning on his elbows in a semi-sitting or laying position. The plaintiff described these positions as being uncomfortable, and requiring frequent postural changes. 195In my view there was nothing shown on the DVD evidence, or from the evidence of the plaintiff which was descriptive of what was shown on the DVD, that was inconsistent with his evidence concerning his ongoing disabilities. I concluded that there was nothing that emerged from either Exhibit "3" or Exhibit "4" which undermined the evidence of the plaintiff, or the credibility of his testimony.

III. FINDINGS ON LIABILITY ISSUES 196I now turn to the consideration of the liability issues calling for decision.

Issue 1 - Whether the plaintiff was struck by an unidentified vehicle 197The plaintiff gave evidence in which he described having been struck by a vehicle that had collided with him as he was crossing the roadway. He also described how the female driver of that vehicle had alighted from her vehicle after the collision. That evidence, which was supported by the testimony of Mr Lo, was tested in cross-examination but not relevantly challenged, traduced or contradicted. I accept the evidence of the plaintiff that there had been a collision with the vehicle, and that as a reaction to the circumstances of the collision, including the plaintiff feeling shocked following being thrown into the air and then landing on the roadway, he took no immediate steps to identify the owner or the driver of the vehicle in question.

Issue 2 - Whether the driver of the unidentified vehicle was negligent 198On the issue of whether or not the driver of the unidentified vehicle was negligent, on behalf of the plaintiff, it was submitted that irrespective of whether the driver was moving forward into the intersection contrary to the direction of a red traffic light, which required her not to drive into the intersection, or whether the driver had a green light in her favour, the driver was nevertheless negligent. It was argued that this must be the inevitable conclusion because, at the time the plaintiff was struck by the vehicle, the driver had failed, as a first priority, to give way to the plaintiff who had the right of way to proceed to complete his crossing of the roadway. 199The defendant resisted the plaintiff's submissions. The defendant claimed that it laboured under difficulty of not being able to either obtain instructions or evidence from the driver of the vehicle. That difficulty inevitably arises where the owner or driver of the vehicle in question remains unidentified, and of itself, it is not a disentitling factor. The defendant also pointed to the fact that there was no direct evidence as to the colour displayed by the traffic control lights that would have faced either the driver, or the plaintiff, at the time of the collision. On behalf of the defendant it was also argued that the presence of stationary vehicles within the crossing of the intersection would have made it difficult for the driver to observe the plaintiff as he crossed the roadway. It was further argued that the speed of the vehicle at the time of the impact was modest, and it may well have been that there was nothing the driver could have reasonably done in order to avoid the collision. Ultimately, the defendant submitted that the plaintiff had failed to discharge the onus of establishing primary liability on the part of the driver of the vehicle that had struck him. 200The plaintiff frankly acknowledged that he did not recall the colour of the pedestrian lights at the time when he commenced his crossing. 201The possible scenarios regarding the state of display of the pedestrian traffic control signals that would have faced the plaintiff at the time of the collision appear to have been as follows: (a) the lights may have displayed a green walk sign in the plaintiff's favour when he commenced to cross, and either: (i) they may have remained showing a green walk signal until he continued to the point where he was struck by the vehicle; or (ii) they may have changed from a green walk signal to a flashing don't walk signal after the plaintiff had commenced to cross, but before he had time to complete his crossing, perhaps even changing from a flashing red signal to a solid red signal before the plaintiff had completed his crossing; or (iii) they may have been displaying either a red flashing don't walk signal, or a solid don't walk signal before the plaintiff commenced his crossing; or (b) the lights may have displayed a red don't walk signal warning the plaintiff not to commence to cross until the light had changed to a green walk signal, but he nevertheless commenced to cross the intersection. 202Despite the absence of specific factual evidence to describe the state of the lights at the time of the collision, and despite the absence of specific factual evidence as to the likely phasing of the lights at the relevant time, I would be prepared to infer from general communal knowledge of the way traffic control lights operate at intersections, that if the plaintiff had a green walk signal, drivers approaching Park Street or William Street from the east, would have had a red light facing them. On the same basis, I would also be prepared to infer drivers approaching the intersection from the south in Elizabeth Street, would either have had a green light permitting them drive straight ahead to the north in Elizabeth Street, or to turn left into Park Street. In both cases this would have to be subject to the need to observe and allow for the presence of pedestrians crossing Park Street. However, the plaintiff could not affirmatively say whether he had the benefit of a green walk signal displayed in his favour. 203Notwithstanding the presence of four circular black cowls shown on the traffic light stanchion evident in the photograph that comprised Exhibit "C", the evidence does not reasonably permit a finding that at the time, a red or a green arrow signal would have operated to direct traffic intending to turn left from Elizabeth Street to travel west in Park Street. 204In my view, the state of the evidence does not enable a finding on the balance of probabilities, as to whether the vehicle in question had entered the intersection by making a left turn from Elizabeth Street into Park Street, or whether the vehicle simply came from the east, from William Street, crossed Elizabeth Street and entered the intersection as a continuation of that journey. The plaintiff's evidence was that he first saw the vehicle in the "millisecond" when it was upon him. He had the impression from that vision of the vehicle that it had made a left turn from Elizabeth Street. I consider the plaintiff's opportunity to form an accurate view as to the direction from which the vehicle had entered Park Street was somewhat limited, but I do not entirely discount that evidence. Mr Lo's evidence did not provide a reliable guide as to the direction from which the vehicle had been driven. In these circumstances, a reasoned and non-speculative inference as to where the vehicle had come from, apart from the plaintiff's immediate left, is not open on the evidence: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. 205However, I am satisfied that the vehicle was travelling at an excessive speed for the prevailing conditions when it entered the intersection just before striking the plaintiff. My reasoning for this conclusion is that in the collision, the plaintiff, who weighed 13 stone, was lifted into the air with both of his feet being a distance of about 2 foot off the ground, and he was then thrown about 2 metres west, to a point on the roadway which was outside the marked crossing, having beforehand been wholly within that marked crossing. Clearly, a significant force was applied to the plaintiff for him to be tossed over that distance. In these circumstances, I do not consider it necessary to have expert evidence as to the likely speed of the vehicle before concluding, as I do, that the speed of travel of that vehicle was excessive in the circumstances of a vehicle approaching and driving into an intersection where pedestrians were seen to be crossing at the time. 206In my view, irrespective of the state of display of the traffic control lights at the intersection, a driver entering an intersection in gridlocked traffic conditions with the intention of driving further to the south in the kerbside bus lane of Park Street, and seeing pedestrians walking across that bus lane, across the path of intended travel of that vehicle, ought to have taken prudent steps to avoid a collision. Those steps included, variously, the sounding of the horn as a warning to pedestrians, and the application of the brakes to reduce the speed of the vehicle, or to bring the vehicle to a halt, in order to enable the pedestrians who were crossing ahead, to safely pass in front of the vehicle without an ensuing collision. 207In my view, in the circumstances, the driver of the vehicle was also under a duty not to allow the vehicle to move forward and to encroach onto the pedestrian crossing whilst pedestrians were in the process of completing their crossing, irrespective of the state of the pedestrian and traffic control signals. The vehicle should not have moved into the intersection whilst pedestrians, or a pedestrian, were visibly crossing in front of it. 208There was no evidence that a warning horn was sounded, and there was no evidence of any sound indicating there had been a heavy application of the brakes of the vehicle, nor was there any evidence of relevant skid marks on the roadway. 209I consider that if she had been keeping a proper lookout as she approached the scene of the collision, the driver of the vehicle must have seen the plaintiff crossing the roadway in a fast walking striding manner. This was because the plaintiff was six foot tall, and the evidence discloses that this was taller than the tops of the sedan cars that were parked in the other lanes of the gridlocked intersection, and around which the plaintiff had walked. I consider that the plaintiff's fast striding pace whilst moving across the path of the vehicle and towards the kerb immediately adjacent to the bus lane ought to have been evident to a driver approaching the intersection and at the same time keeping a proper lookout for pedestrians. 210In my view, a prudent driver in those circumstances would be required to pay due regard to the presence, direction of travel of the plaintiff on the roadway, and to have regard to the plaintiff's pace, and would either have used the horn to warn pedestrians of an approaching vehicle which was not going to stop, or would have applied the brakes well before entering the pedestrian crossing area of the intersection. 211Had either or both of these measures been taken by the driver of the vehicle, in my view, a collision between the vehicle and the plaintiff pedestrian would have been avoided. Clearly, the plaintiff thought it was safe and clear for him to cross. He took that view because of the presence of other pedestrians who were also crossing the roadway in the same direction, and because he had beforehand looked and had determined that it was safe to commence his crossing. 212In the circumstances, a driver keeping a proper lookout when approaching the crossing of the intersection with the intention of driving through it ought to have seen the upper portions of the bodies of the pedestrians, or at least the head portion of the plaintiff in view of his height in comparison with the stationary vehicles. A proper lookout on the part of the driver would have revealed that pedestrians, including the plaintiff were crossing the roadway ahead. On observing these events, in the circumstances, if driving at a safe speed, a prudent driver taking reasonable care should have been able to stop the vehicle in order to avoid a collision with the plaintiff, including by not allowing the vehicle to encroach onto the pedestrian crossing. This is an ordinary everyday requirement of driving through city intersections. With regard to the submission made by the defendant that I should take judicial notice of the fact that pedestrians are wont to cross intersections contrary to a " dont walk " signal, it is equally open to take similar notice of the fact that it is commonplace for a " dont walk " pedestrian signal to commence flashing before pedestrians fully complete their crossing of the intersection. 213I find that the driver, for whatever reason, failed to keep a proper lookout and therefore failed to observe in sufficient time that the plaintiff, and the other pedestrians before him, were crossing the roadway ahead. I find that as a result, the driver failed to sound the horn, failed to brake to stop, or failed to steer the vehicle in order to avoid a collision with the plaintiff. I find that as a result, the driver of the vehicle was negligent, and that such negligence was the cause of the collision and was the cause of the plaintiff's consequential injuries.

Issue 3 - Alleged contributory negligence 214The defendant has raised the defence of alleged contributory negligence. In summary, it was claimed that the plaintiff had voluntarily assumed the risk of injury, and, by moving into the path of an oncoming vehicle, it was alleged that he had failed to have due regard to his own safety by keeping a proper lookout, and that he had failed to ensure that the roadway was clear before he attempted to cross. It was also claimed that the plaintiff failed to cross the road in accordance with the direction of traffic control signals, and that he had attempted to cross between stationary vehicles when he knew, or ought to have known, that his presence on the roadway would be obscured to the drivers of approaching vehicles by reason of the location of those stationary vehicles. 215On behalf of the defendant, it was submitted that there should be a finding of contributory negligence against the plaintiff in the range of 60 per cent to 80 per cent. 216In contrast, the plaintiff refuted the allegation that he was " rushing " to cross the road. On behalf of the plaintiff it was argued that since he was walking within the confines of a crossing marked out for pedestrians, and since he was walking at a fast striding pace, as was confirmed by Mr Lo, he was crossing in a manner that was precisely what was expected of a pedestrian at that time, and in the circumstances there should be no finding of contributory negligence, and no apportionment as claimed by the defendant. 217The defendant bears the onus of establishing a defence of contributory negligence. 218A convenient starting point for the analysis of the contributory negligence issue is the allegation of the failure to cross in accordance with the direction of a traffic control signal. 219The plaintiff stated that before he commenced to cross the intersection, he looked to ensure that it was safe and clear for him to do so. He said that he felt it was safe to do so. I consider that to have been a reasonable judgment made by him in the circumstances. This is because not only were there 2 other people leaving the kerb at the same time as he had commenced to cross, but the traffic in the intersection was stationary. Although I considered the possibility that those 2 other persons may have commenced to cross against a don't walk signal, I consider that it was unlikely that the 2 other persons independently commenced to cross at the same time as the plaintiff did so when it was unsafe for them to do so. 220The plaintiff frankly conceded that he could not recall checking whether the traffic control signal displayed a green light, or a don't walk signal. His explanation for not being able to recall the state of the lights was that he was shocked by the events of the collision. Notwithstanding the criticisms the defendant made of that explanation, I consider that it was a reasonable one that was not inherently or glaringly improbable. Accordingly, I accept the plaintiff's evidence that he could not recall checking the state of the pedestrian traffic control lights before crossing. 221In my view, the fact that the other pedestrians who were crossing at the same time as the plaintiff had completed their crossing more quickly than the plaintiff does not reasonably give rise to a compelling inference that they, or the plaintiff, were crossing contrary to the direction of a don't walk signal. 222I find that on the evidence, the allegation that the plaintiff failed to obey the direction of traffic control signals has not been made out because of the absence of any cogent or reliable evidence, or the availability of reasonable inferences from the evidence, as to the status of the display of the traffic control lights at the scene at the time of the collision. In my view, the state of the evidence in this case does not permit the reasoned inference that the plaintiff had crossed the roadway contrary to either a flashing red or a solid red don't walk signal: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. 223The judgment made by the plaintiff that it was safe and clear to cross was undoubtedly made by him on the basis of what it was that he had taken in of the scene before stepping off the kerb. In this regard, he would have seen the gridlocked stationary vehicles across the intersection and 2 other persons crossing the road in his vicinity and ahead of him. There is no evidence that he had seen any vehicles crossing the intersection in the bus lane towards which he then walked. The plaintiff denied that he had an opportunity to avoid the collision. This is a matter of some importance because once he proceeded to cross within the confines of the crossing, subject to acquiring notice of an approaching vehicle that was unlikely to stop if he were to continue on his path, I consider that he was otherwise entitled to continue with, and to complete his crossing. Indeed he did so, reaching a point within about 1, 2 or 3 metres of the kerb on the opposite side of the roadway before he was struck by the vehicle in question. 224Although it was argued that the plaintiff ought to have looked to his left before entering the bus lane to complete his crossing, and although the plaintiff conceded he was concentrating or focussed upon completing his crossing, there is no evidence that compels the conclusion that he did not look to his left. In the course of making his crossing, his attention would have been directed in a number of areas, not only to his left, but also ahead of him and to the roadway itself as an ordinary incident of keeping a proper lookout for his own safety as he crossed the road. I do not consider that in the absence of notice of a vehicle approaching from his left, any momentary inattention to his left whilst continuing to proceed to cross the road, and whilst remaining within the confines of a pedestrian crossing, constitutes a relevant failure on the part of the plaintiff to take reasonable care for his own safety. In fact he had obviously turned and was in the process of looking to his left in the split-second before the collision. The fact that he did not do so beforehand is not necessarily indicative of contributory negligence on his part, as he would also have had to look where he was going, both in terms of the general direction he was walking and to where he was placing his feet on the roadway, where the potential for uneven surfaces, or pot-holes were not unknown phenomena. 225I do not accept the submission that the plaintiff had voluntarily assumed the risk of injury in the sense that he should bear the responsibility for his own injuries. In this regard, there were no relevant concessions made by the plaintiff to this effect, and in the circumstances I consider that it would be unreasonable to infer that the plaintiff had, in the sense of assuming legal responsibility for his actions, voluntarily assumed the risk of injury. My reason for reaching this conclusion is that the plaintiff was walking, albeit at a fast striding pace, across a city intersection at a marked crossing, having first looked to ensure it was safe to make the crossing. There is no evidence that he had knowingly walked into the path of the approaching vehicle, or did so in circumstances where he was indifferent to his own safety so as to suggest he must be taken to have assumed the risk of injury. Accordingly, I reject the submission that the plaintiff had voluntarily assumed the risk of injury to himself by crossing the roadway at the time he did. 226Having accepted that the plaintiff had looked to check whether it was safe to cross before commencing his crossing, in my view, it necessarily follows that the remaining allegations of contributory negligence relied upon by the defendant must fall away. 227The fact that the plaintiff was the only person on the crossing at the time he was struck, does not necessarily bespeak contributory negligence on his part. Having commenced to cross safely, he was entitled to continue to make his crossing in the absence of notice of vehicles approaching from his left. The fact that he crossed the road less quickly than others ahead of him is not compellingly indicative of contributory negligence on his part, especially given the unchallenged evidence that he was walking in a direct route and at a fast striding pace. I do not infer from the evidence that others had completed their crossing before the plaintiff, that the plaintiff necessarily therefore failed to take care for his own safety by crossing less quickly than his fellow pedestrians. 228In my view the evidence does not support the argument that to the plaintiff's knowledge, the stationary vehicles on the intersection would have obscured him from the view of drivers approaching the intersection in the bus lane. I take this view because the evidence discloses that the plaintiff was taller than the tops of those vehicles and thus the driver of the approaching vehicle would have seen him, or at least his head and shoulders, and the other pedestrians ahead of him, moving across the roadway. 229There is no evidence to support the proposition argued by the defendant to the effect that the plaintiff had crossed the roadway whilst " his gaze was fixed doggedly ahead ". The evidence was that the plaintiff was concentrated or focussed upon crossing the road. The fact that the plaintiff conceded that he first saw the vehicle that struck him a split-second before impact does not in my view amount to a basis for finding that the plaintiff had failed to take proper care for his own safety, particularly where he had no notice of a vehicle approaching from his left and where, in the course of crossing, he was entitled to look ahead and around him, and not just to the left. 230In my view, any momentary inattention to his left, if that is the proper characterisation of the events, does not support an allegation of contributory negligence where the plaintiff's action in crossing the road was a dynamic one, which required him to have regard to a number of considerations, especially including looking where he was going on the roadway. This is particularly so where he was entitled to expect that whilst completing his crossing within the marked portion of the intersection, drivers of vehicles approaching the intersection from his left, would have due regard to his presence and allow him to complete his crossing without a resultant collision. 231I therefore reject the defendant's arguments to the effect that there was contributory negligence on the part of the plaintiff. In my view the defendant has failed to discharge the required onus in that regard. 232In accordance with convention, and to allow for the possibility that on appeal, it may be found that I have erred in reaching the conclusion that there was no contributory negligence on the part of the plaintiff, I set out in short form, and within the framework of my findings of fact, the required analysis of the argued relative causative culpability of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529. 233On considering the facts as I have found them, and in the absence of evidence as to the display status of the traffic and pedestrian control signals, I consider that at the highest, any potential contributory negligence attributable to the plaintiff must centre upon the alleged failure to look to the left before continuing his crossing into the bus lane portion of the intersection. In my view, in the absence of notice of an approaching bus or other vehicle from the left, any relative culpability of the plaintiff for what must amount to at best, a casual or momentary inattention, should be minor, compared to the much greater culpability of the driver of the vehicle, who ought to have seen the plaintiff making his crossing, and who ought to have refrained from entering the marked portion of the crossing by applying the brakes to avoid a collision with the plaintiff. This was in circumstances where the driver had ample opportunity to do so whilst the plaintiff was moving continuously and had walked across about half the width of the bus lane before he was struck by the vehicle. 234In these circumstances, I would consider that any relative contribution of the plaintiff to the circumstances of his injury should be seen as minor, to be assessed at no more than 15 per cent. If I had been required to find that there was contributory negligence on the part of the plaintiff, within that range, I consider that an apportionment of the plaintiff's responsibility at 10 per cent would have been just and equitable in the circumstances. 235The remaining liability issue to be addressed is that of due enquiry and search, an issue for which the plaintiff carries the onus of proof.

Issue 4 - Due inquiry and search 236The plaintiff tendered an affidavit from his solicitor, David Ford, sworn on 16 November 2010, as evidence of having fulfilled his obligation to pursue due enquiry and search to seek to establish the identity of the owner or driver of the motor vehicle that had collided with him in the incident in question : Exhibit "R". 237The collision occurred at about 4.00pm Friday, 1 August 2008. The plaintiff returned to his office after normal business hours. After the intervening weekend, on the following Monday, 4 August 2008, the plaintiff instructed Mr Ford to act as his solicitor. On the advice of Mr Ford, at about 6.00pm on that day, the plaintiff reported the incident to the police. The statement of the plaintiff given at Town Hall Police Station that day is exhibited as "D" to Mr Ford's affidavit. That statement confirmed that the plaintiff was not in possession of any relevant knowledge or information that had led or could have led to the identification of the owner or the driver of the vehicle that had struck him. 238It is clear that neither the driver of the vehicle, nor anyone else, had reported the collision to the police. It is therefore difficult to discern what, if anything, an earlier report by or on behalf of the plaintiff, of the incident on the Friday afternoon or evening, would have achieved with regard to the possible identification of the vehicle or its owner or driver. 239At about 3.30pm on 7 August 2008, Mr Ford and the plaintiff attended the scene of the collision. Once there, they embarked on a course of making enquiries aimed at establishing the identity of the owner or driver of the vehicle. 240They proceeded to attend the premises of the nearby Starbucks cafe in an endeavour to locate potential witnesses, as that cafe was immediately adjacent to the scene of the collision. There, they learned that a female employee at those premises saw a white stationary vehicle at the scene of the incident and that she had noticed a lady with long dark hair at the scene waving her arms about. The witness said she had not seen the incident occur, but had only seen the aftermath. There is no evidence that this employee had information which could have identified the owner or driver of the vehicle. However, that witness indicated that another employee who was said to have seen the incident, was overseas. After subsequent correspondence with the Starbucks organisation, this line of enquiry eventually led to the identification of Mr Kevin Lo as a witness to the incident, and Mr Lo was ultimately called as a witness in the Nominal Defendant's case. 241On 7 August 2008, the plaintiff and his solicitor made further enquiries of a nearby hairdressing salon, and of a State Transit Authority employee in the vicinity of the collision scene, however these enquiries proved to be fruitless. An inquiry of the City of Sydney Council street safety camera program revealed that the incident had not been recorded on the council's CCTV equipment. 242On 18 August 2008, the plaintiff's solicitor lodged the customary advertisement in the Sydney Morning Herald seeking witnesses to the incident. There was no evidence that any useful information came to light in response to that advertisement. 243On 17 September 2008, the plaintiff's solicitor wrote to the Nominal Defendant to notify it of the occurrence of the incident. That notification provided such detail of identification as the plaintiff then knew, namely that the vehicle was white and that the driver was female, but that the registration details of the vehicle were unknown. This notification was provided to the defendant with information as to the event number that had been allocated by the police to the report of the incident. 244On 18 September 2008, the plaintiff's solicitor delivered a letter of request to the manager of the Starbucks cafe seeking co-operation in the identification of the male employee, Mr Lo, who was said to have witnessed the incident. 245On 23 September 2008, the Nominal Defendant Division of the Motor Accidents Authority of NSW, notified the solicitor for the plaintiff that the plaintiff's claim had been allocated to Allianz Australia Insurance Ltd, and that organisation would be acting for the Nominal Defendant in respect of this claim by the plaintiff. 246On 10 December 2008, Mr Ellis, of Verifact Investigations Pty Ltd, acting on behalf of the Nominal Defendant, recorded an interview with the plaintiff in the presence of his solicitor. That interview proceeded over the course of 35 minutes and was later transcribed into 113 questions comprising 12 pages, which were exhibited as "J" to Mr Ford's affidavit. It is clear from the terms of that interview, that the plaintiff had provided his full co-operation to the Nominal Defendant to reveal such facts of the incident as were then known to him. 247Mr Kevin Lo was called by the defendant to give evidence in the proceedings. It is clear from the terms of his evidence that he was not able to provide any useful information that could reasonably have led to the identification of the owner or driver of the vehicle in question. 248On behalf of the defendant, it was put against the plaintiff that at the scene of the collision he failed to take the opportunity of making a note, or to otherwise ascertain the registration number of the vehicle that had struck him. It was further argued that he had failed to ascertain the name and relevant license details of the driver of that vehicle. The defendant also argued that because the plaintiff had a brother who was a barrister who practised in the field of personal injury litigation, the plaintiff somehow as a result of that familial relationship, ought to have known that it was important to ensure the particulars of the vehicle and its driver ought to be recorded. It was also argued that as a legal practitioner in active practise, the plaintiff ought to have known he should have taken immediate steps to record the details of the vehicle and its driver. It was also argued that the plaintiff's prior claims history, where the details of the vehicle at fault were recorded in the claim form, indicated that the plaintiff knew he should record such matters. As a consequence, the defendant argued that the plaintiff had at the outset, failed to pursue due inquiry and search. 249In response, convincingly in my view, the plaintiff pointed to the prevailing circumstances to answer these alleged failures. He explained that at the time, he was shocked, and he initially thought he was going to die when first he realised he had been struck. He stated that later, when he had gathered himself, he did not consider himself to be seriously injured. At the time he was due to attend a meeting to transact important business for a client and, having been delayed by the collision, he was obviously preoccupied with the task of getting to the meeting to fulfil his obligations to his client. The plaintiff argued that in these circumstances it was understandable and excusable that he took no immediate steps to record driver and vehicle identification details. 250In the context in which the events occurred, for the reasons that follow, I considered that at the scene, and afterwards, the plaintiff had acted reasonably, as he explained, and I reject the criticisms to the contrary made of him by the defendant. 251At the scene, immediately after the collision, although he was shocked, he gathered himself and became preoccupied with the need to attend and fulfil his professional obligations towards his client's affairs and the transaction that had to be completed. At the time he thought his injuries were superficial grazes or bruises. Also, at that time, he would only have perceived at worst, that he had sustained soft tissue injuries, and no broken bones. He was able to walk despite the pain and discomfort he experienced. As a person of stoic disposition who had in the past suffered sporting injuries of a more serious character, I do not consider it was unreasonable that when the plaintiff got himself off the roadway and assessed himself as not having sustained serious injury, that he waived off the driver of the vehicle without taking her particulars or the vehicle registration details before himself leaving the scene to attend to his professional obligations. 252It was only afterwards, later in the afternoon, and after he had fulfilled the requirements of his appointment that he realised he had sustained some injuries that affected his wellbeing. In response, he then did the sensible thing and cancelled his other engagement at Cronulla and drove home after waiting in his office for some time for peak traffic to clear. He did not require hospitalisation so it was understandable that he did not immediately seek medical treatment or escalate his thinking about the matter to a stage of needing to record liability matters as a prelude to making a claim for damages for personal injury. On the advice of his neighbour, a medical practitioner, the plaintiff later sought medical attention on the following Monday. 253It was only after the weekend and when at work on the following Monday, where the plaintiff had access to advice, that steps were then set in train to investigate the liability issues. It was in the course of these events that he turned his thoughts to a consideration of what was required to protect or pursue his rights to make a claim in respect of his injuries. 254The requirement in cases such as this for there to be due inquiry and search is to protect the interests of the Nominal Defendant : Oztan v Nominal Defendant (1995) 23 MVRSC 59 per Kirby P at 265. 255I consider that in this case, the interests of the Nominal Defendant in carrying out a liability investigation of the events in question were not significantly prejudiced. On 10 December 2008 the plaintiff submitted himself to a searching interview with a representative of the Nominal Defendant. Those early products of investigation ensured that the Nominal Defendant had access to the only locatable eyewitness to the collision, Mr Lo, who was called as a witness in the defendant's case. Mr Lo did not take steps to record the details of the vehicle or its driver at the time. That is not a criticism of Mr Lo, it simply reflects the fact that at the time of the incident, all parties clearly considered the incident to be of only minor importance and not worthy of taking or making a record, or taking any immediate formal steps to notify the police of the incident. 256I consider the plaintiff's prior claims history is an irrelevant consideration in this case because of the very different factual circumstances of that prior injury, which arose in a 3 multiple vehicle collision on an expressway. In those circumstances the plaintiff was a passenger in a taxi and where the other persons involved had an interest in ensuring that the relevant details were recorded. Those details were available to the plaintiff without him having to make his own independent inquiries. Also, in the circumstances of the other collision, unlike in this case, the plaintiff had no immediate means or reason to leave the scene of the collision. 257In my view, on the facts of this case, once the vehicle in question had left the scene, inevitably, the trail for any subsequent investigations aimed at seeking to establish the identity of the vehicle and its driver, became cold for investigation purposes, and it was not likely that subsequent investigations by the police or by either party would reveal the details required in order to identify potential named defendants for the purposes of making a claim against identifiable tortfeasors. 258In my view, thereafter, as Mr Ford's affidavit and the evidence of the plaintiff demonstrates, in the circumstances of this case, that the plaintiff and those acting on his behalf had undertaken reasonable and due inquiries aimed at seeking to obtain the required details : Harrison v Nominal Defendant (1975) ALR 680 per Barwick CJ at p 332. In my view, the investigations and inquiries undertaken by the plaintiff were realistically responsive to the circumstances : Nominal Defendant v Smith (1998) 28 MVR 165 per Sheller JA at p 174. In the circumstances it is difficult to envisage what other inquiries or steps could have been undertaken on behalf of the plaintiff to seek the identity of the vehicle and its driver. 259Unfortunately, the inquiries that were subsequently made did not bear fruit, thus leaving the plaintiff little option or recourse except to bring a claim against the Nominal Defendant, an entity created by statute to enable claims of this kind to be brought in such situations. 260In this case the defendant drew attention to the fact that, unlike what is seen in some cases brought against the Nominal Defendant, the driver of the vehicle did not decamp the scene, and it was consequently argued that because the plaintiff had ready access to his briefcase which contained pen and paper, he should have taken the time and the opportunity to record the relevant particulars of the vehicle and its driver. It was further argued, that due to such failure, the plaintiff had by his own omission, prevented the vehicle and its driver from being identified. 261In my view, these arguments seek to impose, in retrospect, an unreasonable standard of perfection for the plaintiff's response to the circumstances. The arguments do not pay due regard to the fact that the plaintiff was shocked and whilst on the roadway, with vehicles around him, he thought that he was going to die. In such circumstances, the need to record formal vehicle and driver identification details would have been far from his mind. In my view, the arguments so raised, do not operate as a defence to this claim. I consider that when the plaintiff gathered himself and did not discern any significant injury to himself at that time, he was justified in his initial response of brushing the incident off, and leaving the scene and proceeding to attend to his professional obligations. 262The defendant also argued that in the plaintiff's position as a legal practitioner in current practise, he should have known of the importance of needing to record relevant particulars before leaving the scene, and as such, for the purposes of a consideration of due inquiry and search in this case, he should not be considered to be a lay person. Whilst in general terms such an argument might carry weight in cases where serious injury was clearly and immediately apparent, for the reasons that follow, I reject this argument. 263Subjective factors intrinsic to the plaintiff are relevant. He did not appreciate that he had suffered any significant injury, and he had been shocked by the circumstances of the incident. He was obviously distracted by the thought that he was going to die. This is somewhat different to the defendant's citation of a "... case of a man suffering a minor injury in comparatively full possession of his physical faculties" [Emphasis added]: Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375, per Dixon CJ at [6], pp 380-381. 264I do not consider that in those circumstances, the plaintiff's qualifications as a legal practitioner should have any significant bearing on the issue of due inquiry and search such that his claim should be viewed differently to a claim brought by a lay person. The plaintiff did not practise in the area of personal injury litigation. If anything, I consider that general knowledge amongst legal practitioners would have reasonably led him to believe that as a result of successive historical tranches of tort reform legislation, only cases of significant injury would give rise to claims for damages, and he did not appreciate at the time, that he had suffered a significant injury. 265In my view the foregoing analysis compels a rejection of the defendant's reliance on the remarks of Jordan CJ in Blandford v Fox (1944) SR (NSW) 241 at 245, to the effect that the enquiries made by the plaintiff were not prompt, or were not in accordance with what a reasonable man would have done in the circumstances, or were made when the "scent was cold", or were not made in all quarters where there was a reasonable prospect of obtaining full information. 266Taking into account all of the circumstances that I have described, I consider that the plaintiff has fulfilled his obligation to establish that the owner or driver of the vehicle that collided with him could not be established after due inquiry and search, so as to permit the case to proceed to an assessment of his entitlement to damages for his injuries.

IV. FINDINGS ON DAMAGES ISSUES 267In approaching the damages issues calling for decision it is first necessary to resolve matters arising from the medical evidence. The principal medical issue that arises concerns the causal relationship, if any, between the collision in question and the emergence of the plaintiff's right shoulder problems, and whether there is any relevant connection between those matters, and the swim undertaken by the plaintiff at Maui in Hawaii, on 4 September 2008. The resolution of those matters are relevant to related issues concerning the responsibility of the defendant for the treatment subsequently undertaken by the plaintiff, as well as being relevant to defining the nature and extent of the plaintiff's residual disabilities. These matters are also relevant to questions of mitigation on the part of the plaintiff, as well as having some relevance to the plaintiff's claims for impaired economic capacity, and for the value of domestic and related assistance.

Injuries initially sustained in the collision on 1 August 2008 268With regard to the plaintiff's initial injuries, I accept the evidence of the plaintiff in which he described himself as having felt shocked and imperilled in the events of the collision. I also accept his evidence that following the collision, and after he had landed on the roadway, he felt a sharp pain in his left side and in his right shoulder. The plaintiff described having hit his right shoulder and right elbow at the same time as he landed on the road from a height of about 3 to 4 feet. This resulted in soreness all down the right side, from the point of his right shoulder to his right wrist. In addition he said he had suffered injuries in the nature of bruising to the right knee and right elbow, with some minor bleeding to one of those areas. No relevant connection has been established between the plaintiff's earlier knee problems and the minor knee injuries he sustained in this incident. 269I accept that in the weeks that followed the collision, the plaintiff's right knee and right elbow injuries gradually resolved, but he was nevertheless left with continuing problems in his right upper limb, principally in his right shoulder. 270I accept that in the weeks that followed the collision, and before the plaintiff left Australia to travel to Maui in order to participate in a pre-arranged swimming event, the plaintiff's right shoulder problems continued to affect him to the extent of him having to reduce or curtail his physical training. I also accept that because of his right shoulder problems he pulled out of his planned competitive swim at Maui. 271I also accept that the plaintiff did not have such symptoms in his right upper limb and shoulder before the collision, and that these areas only became symptomatic and problematic for him after the collision in question. I also find that the previous football injuries the plaintiff sustained to his knees, and the previous whiplash type injuries he sustained to his neck in the 1982 and 1994 motor vehicle collisions, had no bearing upon the injuries the plaintiff sustained in the collision on 1 August 2008.

Maui ocean swim on 4 September 2008 272The plaintiff participated in a pre-arranged social swim in the ocean at Maui, Hawaii, on 4 September 2008. That swim took place in between the time when the plaintiff had last seen his treating general practitioner, on 22 August 2008, and when he had a pre-arranged ultrasound study carried out on his right shoulder on 8 September 2008. This was also before he had a referred orthopaedic consultation with Dr Quain, on 15 September 2008. 273Since the defendant places some causative significance upon the timing and effect of the Maui swim in relation to the onset of the plaintiff's subsequent right shoulder problems, it is appropriate that the events of that swim should be analysed. 274The plaintiff's own description of his preparation for the swim at Maui was that after his injury, he had withdrawn from training, and had cancelled his proposed participation in the competitive component of that swim. He also stated that he had restricted himself to participation in the ocean channel component of that swim. It was clear from the plaintiff's description, that the swim in question was not in the same league as the more competitive and more arduous rough water swim in which he had participated in previous years, and in which he had been due to participate before he sustained his injury. 275The plaintiff described the channel swim in which he had participated as being a very easy swim as it was a relay event that simply required him to be in the water for only 30 minutes, and in which he was able to swim at a slow pace, with scope for him to take rests behind a boat. The plaintiff also stated that the requirements of the swim in question were such that it enabled him to remain in the water for 30 minutes in order to fulfil the basic requirement for participation in the event so as to help out his team colleagues. He stated that he was simply there because the event was part of a pre-booked holiday, and he had participated in that limited event, rather than in the more arduous event, in order to make up the numbers for his team. 276I find the evidence of the plaintiff, as summarised above, to be entirely credible, and I accept it. I gained the impression from the plaintiff's evidence that the ocean swim in which he participated, was a gentle and non-arduous one. This was consistent with the plaintiff's evidence of his understanding that swimming was a non-weight bearing activity in which it was difficult to sustain injury. 277I also accept the plaintiff's evidence that he had experienced pain from his right shoulder before the swim at Maui, and that he took painkillers for his shoulder pain before the swim : T 79. I also accept as entirely credible, the plaintiff's denial when it was put to him, that he had only been alerted to the experience of pain in his right shoulder after he had participated in the swim at Maui. 278I also accept the plaintiff's evidence that he participated in the event at Maui using a modified swimming style in which he favoured his right arm and shoulder: T 139. 41. I also accept the plaintiff's denial of the proposition put to him in cross-examination, to the effect that he had withheld providing medical assessors with a history of his participation in the swim at Maui, in order to increase the prospects of " achieving a good outcome to his litigation" : T 83.34.

Causation of plaintiff's right shoulder problems 279It is relevant and necessary to review the medical opinions on the cause of the plaintiff's right shoulder problems. 280On behalf of the defendant it was submitted that the absence of any record of a contemporaneous complaint by the plaintiff of right shoulder problems when he saw his general practitioner 3 days after the collision should base a finding that the plaintiff had not injured that shoulder in the incident in question. It was further argued that the fact that on 4 August 2008, there was no early referral for x-ray of the right shoulder at the time of referral for radiological investigations of the wrists, chest, ribs and ultrasound of the abdomen, confirmed the absence of injury to the right shoulder. The defendant also argued that the plaintiff's right shoulder became symptomatic as a result of the plaintiff having slept on his right side, and more so after the ocean swim at Maui. 281In support of those submissions the defendant drew upon the evidence of a report from Dr Hingerty, the evidence of Dr Dalton, and a submitted construction of the plaintiff's own evidence. 282With regard to the report of Dr Hingerty dated 31 October 2008, which was Exhibit "5", and which followed Dr Hingerty's consultation with the plaintiff on 22 August 2008, the defendant pointed to the following passage: "I saw Mr Meakes on 22/8/2008. His wrists had improved and his abrasions were healing. His ribs were still painful, but had improved. He had been sleeping on his right side, and had noted pain in his right shoulder. The pain occurred on trying to lift his arm, and when rolling onto his right at night. He had a right supraspinatus tenderness, and I asked him to have an x-ray and ultrasound of his right shoulder." 283In my view, the absence of any mention of the plaintiff's right shoulder problems in Dr Hingerty's notes of that consultation, or in the initial consultation with the plaintiff, does not preclude a consideration of whether in fact the plaintiff received such an injury. In that regard, the notes and correspondence, without more, are not conclusive of the issue : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 . The plaintiff's own evidence of having injured his right shoulder in the incident is not a matter that can be put to one side in the consideration of the issue, particularly where I have accepted him as a credible witness. 284The portion of Dr Dalton's evidence that the defendant relied upon in order to make out its argument as to the origin of the plaintiff's right shoulder problems can be conveniently summarised to the effect that the onset of symptoms of " swimmer's shoulder " is classically caused by involvement in swimming when associated with the presence of underlying degenerative rotator-cuff tendinopathy. Dr Dalton was of the view that it was possible that the persistence of the shoulder problems, leading to the subsequent surgery, could have been caused by the effects of the plaintiff's involvement in the swim at Maui. 285The defendant further argued that Dr Dalton's view ought to prevail, as it was argued that he was the only medical expert who has provided an opinion based upon what was submitted to be " the correct post-accident history ", which required the other opinions to " be treated with considerable caution ", and disregarded, with the claimed result that the torn supraspinatus and infraspinatus tendons identified by Dr Ridley on 8 September 2008, and which was subsequently treated surgically by Dr Quain, were not relevantly caused by any injury sustained to the plaintiff in the collision. 286Alternatively, the defendant submitted that the plaintiff's right shoulder problems arose from unreasonable conduct on his part in participating in the swim at Maui. It was therefore argued that the plaintiff's right shoulder problems had arisen as a novus actus interveniens , namely a cause that was unconnected with the collision in question. 287For the reasons that follow, I do not accept those submissions. 288First , and at the outset, the defendant correctly accepts, that it bears the evidentiary onus of establishing that a claimed underlying degenerative shoulder condition and the effects of the swim at Maui are the relevant cause of the plaintiff's right shoulder problems, rather than the cause being the effects of the subject collision : Watts v Rake [1960] HCA 58; (1960) 108 CLR 15; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. 289In this regard, I consider that the evidence of Dr Dalton, as relied upon by the defendant, does not satisfactorily discharge that evidentiary onus. Dr Dalton did not affirmatively state that the swim at Maui was the cause of such problems. Although Dr Dalton leaned towards the opinion that the plaintiff's right shoulder tendinopathy was largely degenerative in origin, and of a longstanding nature, he did not exclude a single and significant trauma as a possible cause of the plaintiff's right shoulder problems. He also allowed for the possibility that an underlying degenerative condition in the tendons of the shoulder could be aggravated by a single traumatic event, which must include the collision in question. In this regard, my interpretation of Dr Dalton's evidence is that he did not exclude a single episode of trauma, such as occurred in the collision in question, as a possible relevant cause of the plaintiff's right shoulder problems. 290When I consider that evidence along with the plaintiff's evidence of landing on the roadway on his right shoulder and right elbow from a height of 3 to 4 feet, I consider that these circumstances comfortably fit within the causation analysis allowed for in the evidence of Dr Dalton, namely the effect of trauma on an underlying previously asymptomatic condition so as to cause symptoms, whether this was due to a tear that occurred at the time of the trauma, or some other mechanism that caused damage to the area. There is no evidence that would compel the conclusion that the plaintiff would have experienced such shoulder problems absent the trauma he described. 291Secondly , in my view, the opinion of Dr Dalton which seeks to attribute the plaintiff's right shoulder problems to the effects of the Maui swim, invoking the mechanism of " swimmer's shoulder " should be rejected in this instance because it appears not to have taken into account the significance of the plaintiff's description of his pain free status before the collision. Furthermore, I consider that the opinion of Dr Dalton relied upon by the defendant pays insufficient regard to the plaintiff's history concerning the events of the collision and the immediate after-effects, as given in evidence, and which I have accepted. In particular, this relates to the plaintiff injuring his right shoulder when he landed on the road. The defendant's submission also pays little if any regard to the plaintiff's post-collision and pre-Maui swim history in which he related experiencing pain in the right shoulder and requiring painkilling medication, which in my view provides clear evidence that the plaintiff's right shoulder was symptomatic before his participation in the Maui swim. There is no evidence that this was the case before the collision in question. The submission made by the defendant also ignores the effect of Dr Hingerty's note of the 22 August 2008 consultation in which the right shoulder problems were alluded to, and which resulted in a referral of the plaintiff for an x-ray of that shoulder. 292In addition, for the reasons that follow, I have also concluded that the defendant's alternative argument, alleging unreasonable conduct on the plaintiff's part in participating in the ocean swim at Maui and constituting a novus actus interveniens , should also be rejected. 293First , the swim at Maui involved only a gentle swim using a modified swimming style that favoured the right arm and shoulder. Given that the swim in question was not undertaken in rough water, I do not consider this to have constituted unreasonable conduct on the plaintiff's part, especially when taking into account the subjective factor of the plaintiff's own understanding of the nature of, and the physical demands of, that swim. In my view this analysis is reinforced when the plaintiff's own understanding of the low impact and non-injurious nature of swimming as an exercise is taken into account. In my view, the defendant has not demonstrated that the plaintiff's participation in the swim at Maui was unreasonably undertaken, or undertaken against specific advice concerning the risk of sustaining injury or sustaining aggravation of an injury. 294Secondly , since the plaintiff's right shoulder symptoms were present both before and after the swim in question, I do not accept that the overall evidence satisfactorily discloses there to have been a material emergence of right shoulder symptoms, or a different and increased level of such symptoms, after the swim, to justify the application of Dr Dalton's general remarks concerning " swimmer's shoulder " to the plaintiff's circumstances as a causation conclusion. In coming to that view, I have simply applied a commonsense analysis of the evidence of the plaintiff and the evidence of Dr Dalton rather than trespassing into matters of medical expertise : Strinic v Singh [2009 ] NSWCA 15. 295Thirdly , I consider that the defendant has failed to call satisfactory evidence demonstrating, on the balance of probabilities, that the effects of the Maui swim have been a material contributory cause of the plaintiff's right shoulder problems. In this regard I consider that there has been a failure to discharge the onus that lay with the defendant : Watts v Rake ; Purkess v Crittenden . I accept the plaintiff's submission that the swim at Maui was nothing more than a temporary exercise event imposed on an already injured shoulder. 296The defendant also argued that the plaintiff's right shoulder problems were unconnected to his injuries from the collision, but rather, they arose due to the plaintiff having slept on his right side at night after the collision. In this regard, the defendant relied upon the evidence of Dr Dalton to the effect that such problems can arise in the plaintiff's age group where there is an underlying degenerative rotator cuff tendinopathy. In support of that argument, the defendant drew upon the history recorded by Dr Hingerty that the plaintiff's right shoulder pain occurred when the plaintiff tried to lift his arm, and when he rolled onto his right at night, in the context of sleeping on the right side. 297In my view, there are problems inherent in that submission that stand in the way of its acceptance and I reject it as being flawed for the reasons that follow. 298First , Dr Dalton's view only raises the suggested connection as a possible cause, not the compelling cause as a conclusion reached on a balance of the probabilities. In my view, that evidence is not persuasive on the issue as it remains a speculative possibility. Secondly , the plaintiff had no problems concerning right shoulder pain before the collision, so it seems to me that it is not credible to argue, on the evidence, that the onset of the right shoulder pain was a co-incidental precipitation of pain due to an unconnected cause where the plaintiff had in fact injured his right shoulder in the collision and had commenced to experience pain at that location as a result of that injury. Thirdly , I cannot ignore the evidence the plaintiff gave of the discomfort he experienced in sleeping on his left side due to the injury he received to the left side of his chest. I infer from this evidence that this would have caused him to roll over onto his right side at night. In those circumstances, even if Dr Dalton's causation hypothesis were to be accepted, the occurrence of right shoulder pain due to an underlying but asymptomatic degenerative tendon condition, as affected by a change in sleeping posture, when properly analysed from a causation perspective, should be seen to be a consequence of the injury to the left side, quite apart from the fact that there was a direct injury to the right shoulder and therefore, the right shoulder problems, if influenced by the plaintiff's sleeping position should be seen as a flow-on effect from the injuries sustained in the collision. In this regard, the defendant has not called evidence that satisfactorily disentangles these intermingled causative factors : Watts v Rake ; Purkess v Crittenden . 299For the above reasons I am therefore compelled to the view that the trauma of the collision was the material contributing cause of the right shoulder problems the plaintiff has described in his evidence.

Injuries - concluded view 300Following my review of the evidence, I have concluded that the plaintiff suffered vehicular impact injuries to the left side of his chest and ribs, as well as sustaining bruising to his right knee and right elbow, with abrasions and some resultant bleeding from those areas. I find that in addition, the plaintiff suffered a significant impact injury to his right shoulder, as he has claimed. Based on my earlier review of the medical evidence, I find it more probable than not that the plaintiff suffered at least a partial tearing of the supraspinatus tendon in the right shoulder which, whilst it may have had age-related degenerative changes, was asymptomatic before the collision in question. I find that it was the effects of the collision that caused the plaintiff to suffer symptoms in his right shoulder and upper arm. I find that in the incident, the plaintiff also suffered a significant shock as a result of being struck by the vehicle in question.

Treatment 301After consulting his general practitioner the plaintiff initially pursued conservative treatment in the form of radiological investigations, the taking of painkilling tablets and undertaking physiotherapy. He was then referred for a surgical opinion and he ultimately submitted to a surgical repair of what was found to be a torn right rotator cuff tendon. He then also had an associated tenodesis procedure of the right biceps tendon. Subsequently, and in accordance with medical advice, he then undertook a programme of physiotherapy, cortisone injections, and exercises, including gentle swimming.

Mitigation 302The plaintiff is under a duty to mitigate the effects of his injuries : s 136 MAC Act . My overall assessment of the plaintiff was that he is a stoic individual who did not seek to overstate or magnify the effects his injuries. Rather, and to the contrary, my impression of him was that he tended to understate the effect of those injuries. 303The plaintiff left me with the impression that he was the type of individual who would, within reasonable bounds, seek to get on with his activities as best he could, and seek to rehabilitate himself rather than be held back by the effects of his injuries. To that end, he has sought and obtained medical and allied treatment. It has not been demonstrated that at any stage during the plaintiff's post-injury rehabilitation, he unreasonably refused to follow treatment recommendations that were offered to him. Despite the effects of his injuries, he has made efforts to undertake exercise to maintain a level, albeit of a lesser level, of physical fitness, as is to a degree evident on the DVD obtained by the defendant, and as observed by Dr Dalton in his physical examination of the plaintiff. The plaintiff has stated, and I accept, that he is still open to pursuing further treatment options, including those suggested by Dr Dalton. 304In those circumstances I consider that the plaintiff has taken and continues to take reasonable steps to mitigate the effects of his injuries, as is required of him by s 136 of the MAC Act. I will return to this topic in connection with the plaintiff's claim for damages for impairment of his earning capacity.

Disabilities that remain 305I find that as a result of the collision the plaintiff's injuries to his right knee and elbow resolved within a matter of weeks. The immediate psychological impact upon him of the events of the collision was also of a short-lived nature. There is no evidence of any significant long-term psychological sequelae from the injuries sustained, apart from the fact that he occasionally feels frustration and anger, which he directs at himself because of the effect the injury has had on his life and on his pre-injury activities. 306I find that the plaintiff has been left with significant physical impairments as a result of his injuries. The plaintiff has a depressed pale 7cm surgical scar to his right shoulder following the repair of the rotator cuff performed by Dr Quain. The plaintiff has been left with stiffness, pain, discomfort and significant restriction of movement in that shoulder. He has post-traumatic capsulitis in the right shoulder as a result of the injury and the subsequent surgery, as was identified by Dr Dalton. This impairs the plaintiff's ability to carry out heavy lifting or repeated movements with his right arm above chest height. 307The plaintiff experiences difficulty carrying a bag with his right arm. He has a painful arc movement of his right shoulder. The plaintiff's right shoulder discomfort causes him discomfort when sleeping on the right side. He occasionally wakes at night due to that discomfort. The plaintiff has a relative weakness of the stabilising muscles of his right scapular and experiences pain in that area when in the prone position. 308The plaintiff is aware of pain in his shoulder in association with active and passive elevation of his right arm. Dr Dalton has identified the fact that the plaintiff has developed a muscle imbalance to his right shoulder due to co-contraction or guarding of muscle groups in response to the experience of shoulder pain. This has developed as a pain avoidance response. 309The plaintiff still faces the prospect of further investigations and treatment as recommended by Dr Dalton in his oral evidence, but with uncertainty of result. 310The plaintiff has experienced occasions when he has felt dispirited, frustrated and depressed by the effects of his injury in connection with the restrictions which his injury has imposed upon him. He has not had the need for any psychological counselling or treatment for these types of problems but since his physical problems will remain, it follows that he remains vulnerable to the possibility that such psychological issues may recur to affect him on occasions.

Effects on domestic activities 311I find that the plaintiff's injuries and resultant disabilities have had a deleterious impact on his ability to carry out domestic tasks which he customarily carried out without difficulty before he was injured in the collision. 312The plaintiff's household is an actively busy one. He lives in a large house with his wife and 3 children. Before he became injured, unremarkably, the plaintiff and his wife shared aspects of their domestic tasks and managed these around their professional and parental responsibilities. 313The plaintiff stated, and I accept, that before his injury he carried out domestic duties in which he shared the household chores with his wife. He said he did all the heavy work which often included gardening, mowing lawns, roof work, which I infer from the evidence to mean cleaning leaves from the roof, as well as cleaning cobwebs and " lots of things ", including all the outdoor maintenance around the house, which was a large 4 bedroom house in a heavily wooded bushland setting, which required him to keep a clear buffer zone between his home and the bush, as well as attending to weed control. He said that before his injury he did the " lion's share " of the washing up and the laundry. The unchallenged evidence was that the nature of the configuration of the house required a lot of maintenance. 314The plaintiff stated that since his injury, he no longer does the difficult maintenance inside the home. He described that to involve getting up on ladders and reaching for areas requiring attention. He no longer does the more difficult aspects of cleaning, and less regularly sweeps and scrubs floors, or attends to bathroom cleaning due to pain in his right shoulder. He also included in this category the cleaning of the large areas of glass in his house. That evidence was consistent with the comments made by Dr Dalton at page 4 of his report dated 1 June 2010. At page 5 of that report Dr Dalton acknowledged the plaintiff may require assistance with heavier domestic tasks and some aspects of home maintenance. The plaintiff described spending most of his weekends on domestic work. 315He stated that his wife now does more of the family shopping, whereas he used to assist with shopping, his sons are now required to carry the bags up to the house as he no longer does that. He estimated that at the time of the trial, the domestic work that he no longer attends to, amounted to about 3 to 4 hours per week, which he later corrected to 4 to 5 hours per week when cross-examined. It was put to the plaintiff in cross-examination that his shoulder condition did not impede his ability to participate in his former level of domestic activity inside the house. He denied that suggestion. His evidence concerning restrictions on outdoor domestic activities remained largely unchallenged. 316I considered the plaintiff's evidence on these matters to have been reasonably given, and inherently plausible, without inconsistencies or room for doubt. Accordingly, I find that the plaintiff's post-injury ability to carry out the domestic tasks which he customarily performed without difficulty before his injury, became significantly impaired. I find that these circumstances arose as a result of the post-injury physical restrictions and inabilities that he related in his evidence, including his need to avoid pain and discomfort, which I consider justified him in changing his regime for carrying out the described domestic chores.

Effects on social, recreational, sporting and work activities 317I find that the plaintiff's injuries and resultant disabilities have had the effect of requiring the plaintiff to lessen and reduce his participation in sporting and exercise related activities. 318I find that as a result of his physical impairments the plaintiff has significantly reduced the extent of his involvement in gymnasium and club memberships, as well as his involvement in sporting activities. He can no longer carry out gymnasium weight training as he did before his injury. I find that he has also reduced his frequency of attendance and level of involvement in social and sporting events relating to those activities. This is a matter of some significance to the plaintiff because a large part of his social and professional life was taken up with spending time in those environments. 319The flow-on effects of these matters concerning the plaintiff's work and earning capacity will be separately analysed in further detail at paragraphs [322] - [377] in connection with the claim for loss of earning capacity.

Life span 320An assessment of some components of the plaintiff's entitlement to future damages first requires an assessment of the years that probably remains for the plaintiff. Having regard to the current prospective life tables, at age 56, this being the plaintiff's age at trial and, in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess the plaintiff's probable life span to be in the rounded down statistics based figure of a remaining 29 years. The 5 per cent multiplier for 29 years is 809.6.

V. ASSESSMENT OF DAMAGES 321The effect of the injuries incurred by the plaintiff as a consequence of the collision were assessed by a MAS assessment as resulting in less than 10 per cent whole person impairment. Under the scheme of the MAC Act , the effect of that assessment is that the plaintiff has no entitlement to claim damages for non-economic loss for pain, suffering or loss of amenity of life. The plaintiff claims damages for loss of economic capacity, both past and future, superannuation losses consequential upon loss of economic capacity, Fox v Wood damages, past domestic assistance, future domestic assistance, the cost of engaging labour on his rural property, and out-of-pocket expenses, both past and future. My assessment of the plaintiff's claim for entitlement to such damages is as set out in the paragraphs that follow.

Past diminution in earning capacity 322The claim made on behalf of the plaintiff for past loss of earning capacity was argued to be in the form of a buffer. This was in the identified amount of $79,300. That sum was submitted as being the equivalent of $650 per week net over 122 weeks between, 1 August 2008 and 30 November 2010. It would appear that the actual period of this aspect of the claim should in fact be for 119 weeks starting from 4 August 2008, and continuing to the commencement of the trial on 17 November 2010. This reveals an amount which is the equivalent of $77,350. 323In contrast to that approach, the defendant submitted that even when taking into account the limited period between 16 April 2009 and 18 May 2009, which was when the plaintiff was absent from his work to have surgical treatment and the related post surgical recuperation, no discernable past loss of earning capacity has been demonstrated. This was submitted to arise because in his position as a director of Carneys Lawyers Pty Ltd, the plaintiff's entitlement to remuneration was as a result of his status as a director of the firm, which entitled him to a percentage of distributed profits, including profits generated by the efforts of all fee earners within the firm. It was accordingly argued that no loss has been demonstrated. 324In its further resistance of the plaintiff's claim for damages for loss of earning capacity the defendant made the following general submissions: "139.The plaintiff is an experienced and senior lawyer. 140.Legal practitioners do not require a fully functional, entirely unrestricted dominant shoulder in order to carry out their professional responsibilities and earn an income. 141.The imaginative approach to demonstrating the alleged diminution of the Plaintiff's earning capacity ... represents an attempt to translate physical impairment into compensation for a diminished earning capacity in what is a non-physical occupation (that is, practising as senior legal practitioner)." 325The plaintiff submitted that this submission was totally without foundation and completely missed the point of a claim for loss of earning capacity. 326The defendant's submissions sought to downplay the role that the plaintiff's club and sporting affiliations had in the generation of income for his firm, and therefore his income. In doing so, the defendant pointed to the demands of the plaintiff's family responsibilities to argue that these would have impeded the plaintiff's attendances at those club and sporting venues. I do not consider that a relevant incompatibility arises. I accept the plaintiff's evidence that he was flexible in the timing of his attendances at those venues, including on weekdays. 327The defendant submitted that the plaintiff's entitlement to a share of the profits of his firm was independent of his own level of involvement or his physical presence at his work. However, in those circumstances, in acknowledgment of the fact that the plaintiff was absent from his work for a period of 4 weeks as a result of surgery to his right shoulder, the defendant ultimately conceded the plaintiff was entitled to some damages for past loss of earning capacity. This was submitted to be a modest global amount of $10,000, which is the equivalent of $2,500 per week net. 328In view of the difficulties involved in the assessment of this head of damage, I consider that neither of the respective positions of the parties is fairly representative of the plaintiff's entitlement to damages for past loss of earning capacity. However, before considering the component of the claim, it is relevant to briefly review the evidence of the plaintiff, together with the medical evidence and the financial evidence that relates to this topic. 329Before doing so, it is necessary to consider an objection raised by the defendant concerning the plaintiff's submission that sought to project a loss of income of the order of $650 per week net for the period to the commencement of the trial, arguing that a claim in those specific terms went beyond the particularisation of a general claim for loss of earning capacity. I do not consider the objection to have validity. This is so because I took the reference of $650 per week in the plaintiff's submissions as providing a means by which to test the appropriateness of the submitted global lump sum for this head of damage. Accordingly, I do not consider the plaintiff's submission to have unfairly embarrassed the defendant on the state of the particulars. 330Any award of damages in favour of the plaintiff for past loss of earning capacity necessarily depends upon an acceptance of the evidence of the plaintiff concerning his description of the reduction of his level of social, sporting and networking activities that had previously resulted in the generation of income for his firm, and therefore, income of which he would receive a share. 331A claim framed in those terms involves uncertainties and is necessarily difficult to assess for a number of reasons. Such uncertainties include obvious factors such as difficulty identifying what, if any, work was actually foregone by the plaintiff and lost to the firm rather than simply postponed or performed by others during the period he was away from work due to treatment and its disabling effects. The process also involves more subtle factors such as the ways in which referral work is received and processed, including difficulties in tracing referrals to particular social and sporting activities of the plaintiff which became reduced in frequency or intensity as a result of the injury. There are also other uncertainties to be taken into account, such as the lead time taken for any lost economic opportunities or deflected referrals to have an impact upon the levels of profit for the plaintiff's firm, and therefore, loss of income for the plaintiff. This factorial review is simply intended to be illustrative rather than exhaustive. 332In order to assess whether any allowance should be made for this claimed head of damage, it is necessary to not only look to the plaintiff's evidence in which he describes the reduction in his level of those activities that should be viewed as a basis for an assessment of past loss of earning capacity, but to also look to the medical evidence to determine whether there is any sound basis for the claim. In addition it is appropriate to also look to the financial material that was tendered in order to see whether there is any discernable down turn or alteration in the levels of profit and income receipts, bearing in mind that the claim is for loss of earning capacity rather than the loss of actual earnings. 333The logical starting point for this consideration is the plaintiff's own evidence of his altered activities that he said had impacted upon his work. 334A comparison of the plaintiff's pre-injury and post-injury activities, and his sports related social activities, as related by him, and which I accept, revealed a lessening of his active physical involvement in socialising in connection with sporting activities. I accept that before the collision a significant motivation and part of the plaintiff's involvement in those activities was aimed at, and had the effect of, bringing remunerative work into his firm. I accept that his golfing activities are the most prominent example of this, whereby he was able to operate within a network of high wealth individuals with work to offer, including work the plaintiff and his firm could and did service when the opportunity arose. I accept that the nature of that kind of work and the frequency of the referral of such work was largely influenced by informal referral pathways which depended upon the plaintiff maintaining a visible and active profile within his network for referrals of work, thereby giving rise to both primary and secondary work referrals and recommendations. 335I accept that the plaintiff's evidence that his reduced ability to play a full game of golf, whether comprising games of either 9 holes or 18 holes, and his reduced ability and motivation to attend at gymnasia and sports related clubs, had a deleterious impact on his ability to socialise with clients, friends and potential clients with the aim of bringing work into the firm. A reduction in his exposure to possible work referrals that might be on offer through such connections is not at all remote, fanciful or far-fetched. I also accept that the effects of the plaintiff's injuries caused him to have the diminished motivation to work and to attend to those activities for the long hours to which he was accustomed, before his injuries. 336I consider that all of these matters have had an adverse impact upon the plaintiff's earning capacity through obtaining referral work for his firm. It is obvious that the kind of work that the plaintiff described was dependent upon him continuing to maintain a level of connection to service the ad hoc needs that arose amongst his array of potential clients within his network of referral relationships that had historically led to his firm receiving work. It is readily understandable that in the context of the experience of pain and restrictions due to disability, the motivation to continue could become reduced, as described by the plaintiff. 337I find that the plaintiff's reduced level of activity and professional profile in this regard should be seen as a loss of potential opportunities to generate new work and maintain a related workload, foregone to him and to his firm after his injury, and therefore requiring some reasonable assessment of lost value to the plaintiff. 338I also accept as reasonable the evidence given by the plaintiff to the effect that the ongoing nature of his right shoulder problems has required him to reconfigure his computer set-up in his office because he has become less proficient or efficient at manual tasks such as typing, whether this be in the form of documents, correspondence or emails. It is readily understandable that, being right hand dominant, the plaintiff would experience difficulty and a degree of manual inefficiency. 339However, I do not consider that such evidence, even when viewed with the assistance provided by the medical evidence, permits a specific finding of an inability in the plaintiff to carry out specific income producing tasks. The defendant submitted that those circumstances necessarily required that the plaintiff should not be awarded any damages for loss of earning capacity, because to do so was " somewhat fanciful ". 340In that regard, the defendant relied upon remarks in Sophie Fegan by her tutor Inga Rozenauers v Lane Cove Council House Pty Ltd [2007] NSWCA 88, per Bell JA at [26]. In that case her Honour addressed the postulated case of an inability to type for extended periods in the absence of evidence that this posed a risk to the continued employment of the plaintiff in that case. That is the matter which was characterised as fanciful. In contrast, the case the plaintiff seeks to make here is different to those circumstances. He claims that his disabilities have led to a reduction in his income. That said, I consider that the factor of the plaintiff's altered workplace configuration is one of the general considerations I should take into account in assessing whether the plaintiff should receive a monetary award for this claimed head of damage. On examining the issue, that factor of itself, has not led to a demonstrable loss of earnings. 341In light of the foregoing conclusions, it becomes relevant to briefly review the medical evidence on work related issues. 342On 27 May 2009, Dr Quain formed the opinion that the plaintiff was fit for his work as a lawyer, and later, on 8 July 2009, he added that the plaintiff was still restricted in his recreational sports, and some activities on his hobby farm. On 30 October 2009, Dr Mastroianni made no specific work-related comments, but noted that the plaintiff still had persisting right shoulder restrictions and could not perform any heavy lifting, repetitive movements with a right arm or activities above chest height. On 7 December 2009, Dr Quain recommended that the plaintiff limit his playing of golf to 5 or 6 holes, and that he not use the driver, and that he should limit his swimming activities. In this regard, I accept the plaintiff's evidence that participation in golfing activities to the limited extent recommended by Dr Quain, were not socially practicable from the viewpoint of entertaining prospective clients with games of golf. On 19 May 2010, Dr Perides noted the plaintiff has been left with a reduced range of right shoulder motion. The effect of the cumulative opinions of Dr Dalton was that he did not dispute the plaintiff's claimed disabilities and restrictions. 343Serious as those restrictions are for the plaintiff, I do not consider they require a finding that the plaintiff is precluded from performing specific work related tasks that, in the case of a manual worker, would perhaps base a finding of a particular impairment of a specific earning capacity. Instead, I consider that the plaintiff's claim for this head of damage stands to be assessed in general terms. 344I consider that the appropriate approach to be taken is in the form of a general sum that serves as a cushion to provide the plaintiff with a buffer against the less tangible, but nevertheless real loss of capacity that has been incurred by him in respect of the described activities, notwithstanding the difficulties inherent in assessing the extent of such losses. In coming to this conclusion, I reject the earlier quoted submissions of the defendant at paragraph [324] as being over-simplistic and lacking insight into the problem for assessment. 345The assessment of a buffer along the lines I have outlined must be in the context that requires a review of the exhibits that relate to the economic loss claim. 346The plaintiff's evidence was that there was a relevant change in the form of a downturn in the number of new files that he had opened as a result of his injuries. To enable a comparison to be made, evidence was tendered to show the actual numbers of new files that the plaintiff opened in the period 1 July 2001 to 30 June 2010: Exhibit "F". The defendant tendered a comparative analysis of files newly opened by the plaintiff in the period 2003 to 2010 to demonstrate the percentage of files opened by the plaintiff in each of those years: Exhibit "8". 347The table that follows summarises the data from within those two exhibits: Period New files opened Percentage of files opened by plaintiff 01.07.2001 - 30.06.2002 173 N/A 01.07.2002 - 30.06.2003 175 21.00% 01.07.2003 - 30.06.2004 171 19.30% 01.07.2004 - 30.06.2005 192 26.50% 01.07.2005 - 30.06.2006 221 31.20% 01.07.2006 - 30.06.2007 202 28.10% 01.07.2007 - 30.06.2008 203 28.40% 01.07.2008 - 30.06.2009 175 31.40% (Year of injury) 01.07.2009 - 30.06.2010 166 31.10%

348It is clear from Exhibit "F", even after allowing for a peak year in 2005/2006, that the number of new files opened by the plaintiff since his injury has significantly reduced. That said, in my view, the evidence does not permit a reasoned monetary analysis of any difference in fees that were likely to have been earned by the firm or by the plaintiff if the number of new files had remained constant or had increased. This is because the new files opened by the plaintiff undoubtedly ranged between matters such as wills, for which professional fees were relatively modest, and involved an element of a goodwill service to clients, and commercial or property transaction files, which generated higher levels of professional work and fees. Even though the plaintiff maintained relatively high percentages for the opening of new files, the data does not permit a reasoned analysis of the precise way in which the reduced number of new files opened by him should be reflected in an income analysis. There was no data available to determine the nature of the files opened by the plaintiff. 349The plaintiff's income tax returns and notices of assessment for the period 1 June 2004 to 30 June 2009 were tendered: Exhibit "S". The company tax returns for Carneys Lawyers Pty Ltd for the period 2006 to 2009 were also tendered: Exhibit "7". That exhibit included an analytical table setting out the franked dividends for each director of the firm according to their share of entitlement to the profits generated by the practice. 350I consider the income figures contained in those returns and assessments do not assist in identifying any specific losses in an analysis of the plaintiff's claim for diminished earning capacity. This is because first, the returns and assessments show an increase in income for the 2009 and 2010 years, and secondly, the evidence does not permit an analysis that explains those increases by reference to the efforts, or any reduction in the efforts, of the plaintiff. Therefore, apart from providing a background to the task of assessing the claim for impairment of earning capacity, it is not relevant or helpful to further analyse those returns for the purpose of drawing monetary conclusions concerning the claim for loss of earning capacity. 351What the evidence does reveal is that the new files opened by the plaintiff in the period 2001 to 2010 not only fluctuated from year to year, but the numbers of files opened did not equate with, or was not directly reflective of, the plaintiff's share of the profits of the firm. The plaintiff's share of profits was not tied to or necessarily commensurate with the number of files opened by him. In my view this tends to support the plaintiff's evidence of the variable nature of the new files opened, and therefore, the variable nature of the monetary return from those files, when measured in terms of professional fees. It is also reflective of the general nature of the income of a group of professionals who, through either a partnership or corporate structure, agree to share their overheads and distribute their income in a way that provides mutual financial cross-support and cross-benefits. 352As a result of my review of the evidence as outlined above, three significant conclusions emerge. 353First , the plaintiff has suffered a permanent physical impairment to his right shoulder that restricts his physical activities, including to the extent of involving himself to his pre-injury level of social and sporting activities that were associated with referrals of work. 354Secondly , as a result of the restrictions described by the plaintiff, he has opened significantly fewer files per annum than was the case before his injury. Whilst it is possible this may have been due to co-incidence, or due to changes in the way in which work has generally become distributed in the legal profession as a result of the effects of different aspects of law reform, or due to changing economic conditions affecting commercial and property work, I have discounted those factors because of the evidence of the plaintiff as to his previous level of networking activities, and because of the nature of the practice of the firm, which involves different strands of legal practice. In that analysis I have attached greater weight to the evidence of the plaintiff as I consider he was in a good position to make a judgment on the cause of the downturn in the level and number of new files opened by him, and because I considered his evidence to have been reasonably given, in careful and modest terms, and not inflated or exaggerated in order to seek to maximise a damages award. 355Thirdly , the change in the level of the plaintiff's level of involvement in social and sporting events within his referral network should not be seen as being co-incidental with a post-injury reduction in the number of files opened by the plaintiff. I consider this to be so because a significant influence on that reduction in the described activities has been the plaintiff's reduced level of motivation, which is in turn due to his restrictions as confirmed by the medical evidence, and his related experience of pain. 356In considering those conclusions in the light of the applicable principles to this type of claim, I must bear in mind that what is being sought to be measured here is not a directly calculable loss of income, but rather a loss of capacity to earn income in addition to that which has been earned. Although that exercise involves the weighing of imponderables and uncertainties, where such a loss of capacity is accepted, but difficult to measure, an assessment must still be undertaken and not rejected : State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, at per Heydon JA at [87]; Penrith City Council v Parks [2004] NSWCA 201, per Giles JA at [5]. 357Such an assessment must take into account the financial rewards the plaintiff might have reasonably expected to have obtained from the unhindered exercise of his earning capacity were it not for his injury. Such considerations are not necessarily restricted to the corporate structure in which the plaintiff presently practises, because, for the moment, that is a matter of choice, and therefore not necessarily a true measure his earning capacity : Husher v Husher [1999] HCA 47; 197 CLR 138, at [18]. 358The threshold that must be fulfilled before any monetary assessment for past loss of earning capacity can take place is that I must be satisfied that the post-injury changes to the plaintiff's circumstances have not only had a deleterious impact on the plaintiff's capacity to earn, but that the reduced capacity so identified is likely to be productive of a financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR, at [4]; Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 at [10]. I consider that my findings that have followed my review of the evidence satisfy these tests. 359Although it is difficult to measure in monetary terms the direct impact on the plaintiff of the described reduction in exposure to promotional activity and his reduced motivation, such difficulties should not stand in the way of making a reasonable assessment of the loss : Moss, at [87]; Parks , at [5]. 360Whilst the defendant argued that the plaintiff's reduced social and sporting involvements, which have in turn reduced his exposure to his work referral network, still represents an intangible that does not warrant a monetary award, I consider that view to be unrealistic in its application to the plaintiff's post injury circumstances, and should be rejected in favour of making an award of a general economic buffer in order to compensate the plaintiff with damages for past loss of earning capacity. 361In selecting such a buffer, I have taken into account as a background yardstick, the plaintiff's annual franked income from his firm, as is evident from the returns that are in evidence, and also bearing in mind that any potential work lost to the plaintiff's firm as a result of his injury has to be viewed not only in terms of net loss to the plaintiff after taking overheads and tax into account, but also after taking into account the arrangements in the firm for the sharing of profits. In that regard, I consider it is more probable than not that the plaintiff would most likely have continued practising in his firm between the time of his injury and the time of the commencement of the trial. 362Having accepted the plaintiff's evidence of his restrictions and the resultant reduction in his activities, I consider the appropriate amount to be awarded to the plaintiff for this head of damage is in the amount of $60,000, which in broad terms is the rough equivalent of an amount of $500 per week, spread over the period of 119 weeks of loss of capacity from the date of the plaintiff's injury to the date of the trial. It is clear from Exhibit "1" that such additional capacity existed, as was evident in the 2007 year. 363I therefore award the plaintiff damages in the form of a buffer for compensation for past diminution in earning capacity, in the amount of $60,000 .

Future diminution in earning capacity 364Any assessment of the plaintiff's entitlement to damages for loss or impairment of future earning capacity must proceed in accordance with the requirements of s 126 of the MAC Act . That section requires that any such award is to be based on identified assumptions that accord with what would have been the plaintiff's most likely circumstances but for the injury in question, and discounted appropriately by a percentage that reflects the possibility that the events in question may have occurred but for the injury in any event. 365On behalf of the plaintiff it was submitted that there should be an award of damages for future impairment of earning capacity in the sum of $306,337. The plaintiff bases that submission on an assumed retirement age of 70 years, and identifies the sum claimed as being the equivalent of an amount of $650 per week projected over 15 years and discounted at the conventional rate of 15 per cent. 366In contrast, the defendant submitted that the plaintiff's most likely future circumstances are that he will continue to practise as a director of Carneys Lawyers Pty Ltd up to his retirement age, and that, consistent with the submissions made with respect to the claim for past loss of earning capacity, there should be no finding or award of damages for claimed future loss of earning capacity. 367In my view, for the reasons that follow, the defendant's submissions are flawed, and should be rejected in favour of an assessment of damages for future loss of earning capacity. 368First , I consider that the same considerations and evidentiary considerations that I have found to apply to the claim for past loss of earning capacity, also apply to the claim for future loss of earning capacity, subject of course to the considerations required by s 126 of the MAC Act . I take this view because of the static nature of the plaintiff's residual physical problems that have already been reviewed. These appear to be permanent and it remains speculative as to whether the further treatment being suggested by Dr Dalton would result in any significant change or improvement. The plaintiff has had surgery, which has left him with resultant disabilities that will permanently remain with him. 369Secondly , as the plaintiff ages, it is natural that his ability to increase his level of sporting activities is unlikely to increase. He is in his prime years of earning capacity and although his earnings may well decrease as he ages, he is presently unable to fully utilise or maximise his present earning capacity to cushion himself against that factor. This is a deleterious consequence of the injury that requires assessment. In a well established firm, he would be entitled to expect a degree of mutual cross-support for his continued income, including in the later years, as is the case with one of the solicitors in the firm who is presently aged over 70 years. In order to be in a position to entertain that expectation, the plaintiff would, in an earnings sense, have to fully pull his weight at the present time, and I have found that he is impaired in this regard. In my view it is not an answer to submit, as the defendant has submitted, that as the plaintiff ages he would be entitled to reap the income rewards that his earlier activities had established by servicing his existing client base. In this regard, I accept the plaintiff's evidence that he needed to remain active to promote himself amongst an ever-changing client base because the new work was often amongst the younger generation as the older and more established clients were commercially less active. 370Thirdly , a factor that has to be taken into account is that the plaintiff's firm, as sometimes occurs in the profession, may merge, or not continue over time, for a variety of reasons that I do not need to speculate upon. If such circumstances were to arise, the plaintiff's position, and as a consequence, his income, may well become less certain. In that sense, a greater loss of earning capacity may well ultimately arise for the reasons that presently have an adverse impact upon his capacity to earn. 371Fourthly , with the plaintiff continuing to experience pain, discomfort, frustration and inconvenience, his motivation to continue his income earning activities may become even more adversely affected than has been the case to date, thus giving rise to the potential for an even greater injury related loss of earning capacity. 372It therefore remains to identify the appropriate basis for the assessment of such damages. 373In addressing the requirements of 126(1) of the MAC Act , I consider that the findings I have made with respect to the claim for past loss of earning capacity apply with at least equal force to the claim for future loss of earning capacity. In this regard, I consider that the plaintiff is most likely to continue to practise his profession within the firm Carneys Lawyers Pty Ltd as he has done in the past, probably up to a retirement age of 70 years. In the legal profession it is commonly known that, to varying degrees, some practitioners continue to practise beyond the age of 70 years. 374Given that I have determined that any award of damages for future impairment of earning capacity should be by way of a buffer, it is difficult to identify the percentage terms of any discount contemplated as requiring adjustment according to s 126(2) of the MAC Act . That said, I have incorporated a small discount to allow for what I consider to be the remote possibility that but for his injury, the plaintiff may have lessened his enthusiasm for continued practice in any event even if he had not been injured, and may have either lessened or ceased his work earlier than at age 70. That conclusion seems unlikely as he clearly derived a great deal of satisfaction from his practice before he was injured, and no sound reason has been identified in the evidence which would reasonably suggest that state would not have continued into his seventies, as was the case with one of the long time principals of the firm who continued to remain in that capacity at the time of the trial. 375I consider that for the purposes of s 126(3) of the MAC Act , I have sufficiently stated the assumptions I have adopted to base the award of damages for diminution in earning capacity in favour of the plaintiff. 376I consider that an appropriate lump sum global buffer award for future loss of earning capacity is in the sum of $250,000. I have tested the appropriateness of that sum by analysing it as the equivalent of $550 per week net projected at 5 per cent over 15 years to age 70 years, and then discounted by 15 per cent for possible adverse vicissitudes. That process reveals a sum of $259,462. Taking all relevant discounts into account, including those required by s 126(3) of the MAC Act , I consider that this analysis reveals an award of $250,000 to be an appropriate amount. 377I therefore award the plaintiff damages in the form of a buffer for future diminution in his earning capacity in the assessed rounded down amount of $250,000 .

Superannuation losses 378The plaintiff makes a claim for past and future superannuation losses in the sum of $42,453. That sum, which required slight adjustment to reflect the correction of a mathematical error in the submissions, must necessarily vary according to the actual allowances made for past and future loss of earning capacity and is calculated upon the basis of 11 per cent of the combined total of those allowances. 379Having regard to the combined assessed allowances for past loss of earning capacity which total $310,000, 11 per cent of that sum yields the amount of $34,100. 380In contrast, the defendant submitted that there should be no allowance made for damages for either past or future superannuation losses since the plaintiff was not an employee but was a director of Carneys Lawyers Pty Ltd, with an entitlement to a share of the profits of that firm. 381Before the firm Carneys incorporated, the plaintiff was a partner of the firm. If that arrangement had still been in place, the submission made by the defendant would have some force, substituting the term partner for director. However, I consider the submission by the defendant to be unsupported by the weight of the evidence. I take that view because although the plaintiff conceded he was a director of his firm, for tax purposes, in various places, he is identified as an employee drawing a salary: Exhibit "S". In those circumstances, I consider the superannuation submission made by the defendant to involve an incorrect characterisation. I infer from Exhibit "S" that the plaintiff's earnings, even as a director, constitute the earnings of an employee. I therefore reject the defendant's superannuation submission in favour of an acceptance of the plaintiff's submission. I therefore award the plaintiff damages for superannuation losses in the amount of $34,100 .

Fox v Wood 382The plaintiff makes a claim for reimbursement of tax paid on weekly payments of workers' compensation that he received whilst he was off work for surgical treatment: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. The amount claimed is $1522. 383The defendant has conceded, subject to the plaintiff succeeding on the issue of the causal connection between the collision and his shoulder problems, a matter I have resolved in favour of the plaintiff, that the amounts for tax deducted from his workers' compensation, are properly recoverable. Presumably, the defendant's concession was made on the basis that a company director should be regarded as an employee for the purposes of his entitlements in the event of him sustaining injury in the course of employment. 384Accordingly, I award the plaintiff damages by way of reimbursement for the amounts of tax that was deducted from weekly payments of workers' compensation, in accordance with the principle in Fox v Wood , in the amount of $1522 .

Past domestic assistance 385The plaintiff makes a claim for the value of past domestic assistance in the sum of $38,918. The claim is for the period between 1 August 2008 and the time of the trial. The submitted calculation was for 122 weeks to 30 November 2010. That calculation requires adjustment to reflect that there were 119.28 weeks from 1 August 2008 to the commencement of the trial on 17 November 2010. The submitted claim is for 14.5 hours per week at $22 per hour. The submission, as adjusted to reflect the reduced period, becomes $38,050. 386The defendant submitted that the evidentiary basis of the plaintiff's claim for damages for past domestic assistance was obscure. The defendant further submitted that the evidence does not satisfy the statutory threshold of at least 6 hours per week of domestic assistance for a minimum of 6 months. It was therefore submitted, on the evidence, that the plaintiff is not entitled to damages of that kind: s 128 of the MAC Act . 387At paragraphs [311] to [316] of my reasons, I have reviewed and accepted the evidence given by the plaintiff to the effect that since his injury, the indoor domestic work that he was no longer able to attend to as before, amounted to between 4 and 5 hours per week. The work in question concerned the family home, which comprised a 3-storey dwelling in a bushland setting on an 800 square metre block of land. That work included assisting with the shopping, carrying the shopping from the car, indoor ladder work such as cobweb removal, indoor cleaning and scrubbing of floors, sweeping and bathroom cleaning. The plaintiff no longer does the window cleaning in a house that had a lot of large areas of glass. The plaintiff stated that his wife took on an increased load of cleaning, and she now takes on a greater share of the cooking in that he no longer attends to the lead-up work associated with cooking, such as peeling potatoes and the like. I did not get the impression that the work associated with the lead-up to cooking occupied any significant time. The plaintiff did not assert that he could no longer assist with the cooking. 388In addition to the work described above, the plaintiff also described significant outdoor work, which included maintaining a buffer zone or clearing between his house and the nearby bushland on an almost weekly basis throughout the year, clearing the roof of leaves and other vegetation, mowing the lawns on a " very, very steep slope " which included having to carry the lawnmower up the slope, an activity which was undertaken every one to two weeks in summer and once a month in winter, taking 1.5 hours on each occasion, including collecting and disposing of the grass clippings. In addition, there was a lot of weeding required in the garden. Exhibit "G" comprised 14 photographs which assisted in understanding the general setting and outdoor features of the house in connection with the maintenance work described by the plaintiff. Averaging the additional hours described by the plaintiff with regard to outdoor work between the differing seasons, this amounts to a little over 1 hour per week throughout the year. 389I have come to that conclusion by taking a broad average of the described hours for outdoor work, which amounts to a little over 1.1 hours per week : [1.5 hours x 26 weeks = 39 hours] + [1.5 hours x 26 weeks divided by 2 =19.5 hours] = 58.5 hours divided by 52 = 1.12 hours per week. 390The analysis thus far reveals the total work described above amounts to between 5 to 6 hours per week, or a little more than that. It is that evidence which has led the defendant to submit that the statutory threshold for damages for domestic assistance has not been met. Although it is clear that the evidence does not support the submission made on behalf of the plaintiff for 14.5 hours per week of domestic assistance, I am not persuaded that the statutory threshold pursuant to s 128 of the MAC Act has not been met. 391Following my review of the evidence, as outlined above, I am persuaded that since his injury the plaintiff has on average, received a little over 6 hours per week of domestic assistance provided gratuitously by his family in circumstances where uninjured, he attended to the described tasks himself without such assistance. 392Whilst I am satisfied that the plaintiff has the physical limitations he described, and whilst I am also satisfied that he has received the assistance from his family as he has described, I propose to briefly review the medical evidence in order to otherwise satisfy myself that the plaintiff actually needed the assistance that has been provided. 393In his report dated 7 July 2009, the plaintiff's treating orthopaedic surgeon, Dr Quain observed that the plaintiff was still restricted in his recreational sports and some activities with his sons on his hobby farm. At that time he thought that stabilisation of the effects of the injury would not occur for about 1 year from the date of the operative repair, namely April 2010. 394In his report dated 7 December 2009, Dr Quain expressed the view that it was too early for him to assess the degree of any residual permanent impairment in the plaintiff's right shoulder which he had been treating, but he expressed the view there will be some impairment in terms of strength, and in particular, limitation in the range of motion. He made no comments on the need for domestic assistance but it could be reasonably inferred from the comments I have cited, that consistent with his evidence, the plaintiff could be expected to continue to have some difficulties with domestic and related tasks involving strength and range of motion of the right shoulder. I do not consider the absence of any comment from Dr Quain concerning a continuing need for domestic assistance to constitute a rejection of the plaintiff's need for assistance of the kind under consideration. 395In his report dated 30 October 2009, Dr Mastroianni stated that he thought the plaintiff needed assistance with handyman work as he cannot lift any appliances or tools. Dr Mastroianni also recorded his view that the plaintiff was no longer able to attend to housework tasks that involved mopping and vacuuming. He said this extended to the plaintiff not being able to do the gardening and needing someone to do the lawns for him. Dr Mastroianni estimated that the plaintiff would need 4 hours of domestic assistance per week plus 4 hours per fortnight for lawn maintenance. In the context in which that opinion was given, I took these estimates to be averages, and not necessarily definitive or prescriptive limits on the parameters for such assistance. 396In his report dated 19 May 2010, Dr Perides noted that the plaintiff' received help from his 3 sons with regard to lawn mowing at home. Dr Perides also noted the plaintiff had difficulty maintaining his rural property, and that his normal recreational activities, including his golfing, had been curtailed. Dr Perides indicated that the plaintiff's right shoulder impairment was permanent. Dr Perides made no reference to any need in the plaintiff for domestic assistance. I do not take the absence of any such comments to indicate that he did not consider there was such a need. Rather, I take the absence of such commentary to be consistent with the limited remit of Dr Perides, which was, to identify the degree of whole person impairment for the purposes of a MAS assessment, which involves a separate consideration. 397In his report dated 20 February 2009, Dr Dalton expressed the view that the plaintiff did not need any domestic or household assistance at that time or in the foreseeable future. When viewed on its own, I find that opinion difficult to accept in view of the plaintiff's specific evidence of his restrictions, and the initial impression recorded by Dr Quain who obviously had the advantage of a clinical assessment as the plaintiff's treating specialist. I also take that view because Dr Dalton did not dispute the disabilities claimed by the plaintiff. However, Dr Dalton then went on to modify this view. 398In his report dated 1 June 2010, which was based on an examination that took place on 16 February 2010, Dr Dalton recorded the plaintiff's complaints of inability to attend to the fencing of his farm, as well as other manual tasks, as well as a limited capacity to do home maintenance, noting that his sons mowed the lawns at home. At that time, Dr Dalton expressed the view the plaintiff did not require assistance with light domestic or household tasks, noting that he received gratuitous assistance with lawnmowing. Dr Dalton conceded the plaintiff may require assistance with more demanding physical tasks concerning home maintenance, which was a different view to the one he had expressed in his report dated 20 February 2009. He also stated it was difficult to predict whether the plaintiff would regain full function and use of his right shoulder in order to resume full pre-injury activities. 399In his report dated 18 October 2010, Dr Dalton noted ongoing deficits of shoulder mobility and noted that the plaintiff had not undertaken physical activities on his property, such as fencing. Other than stating that his " opinions are unchanged from those ... expressed in [his] report of 1 June 2010 " he made no reference to any need the plaintiff might have for domestic assistance and the like. 400The foregoing review of the medical evidence leads me to the view that the preponderance of the medical evidence supports the plaintiff's case for an allowance in his damages award for domestic assistance on the basis claimed. In this regard, I accept the evidence of the plaintiff as to the extent to which he has received those services and I find that this was due to an injury caused need. 401I do not accept that such services have been provided to the extent of 14.5 hours per week as was submitted because the evidence only permits a finding of a little over 6 hours per week. Whilst I consider that the plaintiff's evidence of the description of hours of assistance provided by others was not intended to be precise, I nevertheless consider that evidence comfortably satisfies me that the services were provided for at least 6 hours per week in respect of the past. 402In coming to this view I also had regard to my impression that the plaintiff tended to understate his evidence with regard to damages issues. Allowing for a degree of imprecision, on the evidence, I propose to limit the award for such damages for past services to 6 hours per week, whilst also acknowledging that it is likely the plaintiff received the benefit of a greater number of such hours of assistance. In the Appendix to these reasons I have calculated the value of 6 hours per week of gratuitous domestic assistance in accordance with the rates prescribed by s 128(4) of the MAC Act , in the amount of $17,074.82. 403I therefore award the plaintiff damages for past gratuitous domestic assistance services in the amount of $17,074 .

Future domestic assistance 404The plaintiff makes a claim for the cost of future domestic assistance of one hour per week at $35 per hour projected over the remainder of his life span, in the identified sum of $24,454. That sum incorporated a 15 per cent discount. The defendant does not challenge that approach, assuming that medical causation has been established in the plaintiff's favour. As the issue of the causal connection between the plaintiff's right shoulder problems has already been established in the plaintiff's favour, I propose to make an award of the order of the amount claimed, subject to an adjustment for the correct 5 per cent multiplier. The plaintiff's submission proceeded upon the basis of a 30 year multiplier of 822 whereas the required multiplier is for 29 years, which is 809.6. This yields an amount of $28,336. 405The basis upon which to discount that sum for vicissitudes is not readily apparent as the actuarial tables that are used for the projection already take mortality into account and there is no evidence that the plaintiff would have required this kind of assistance in any event. On the other hand, there is the possibility that the plaintiff's need for domestic assistance may lessen in future years if he were to downsize his home. In the circumstances, I will accede to the plaintiff's submitted approach and apply a 15 per cent discount, which yields an amount of $24,085. 406I therefore award the plaintiff damages for past paid assistance in the amount of $24,085 .

Past cost of employing a fencing contractor 407The plaintiff makes a claim for the cost of erecting fencing on his rural property at Ellalong. The amount claimed is in the sum of $22,236.76 : Exhibit "H". 408The defendant submitted that the claim should be rejected because it was not pleaded. Alternatively, the defendant submitted that the costs associated with the Ellalong property should have been shared equally between the 3 families who had a co-ownership interest in the property, and not just the plaintiff, after allowing a deduction for materials, for which expense would have been incurred in any event. The defendant further submitted that since the labour component of the claim could not be identified within Exhibit "H', the claim should be disallowed. 409The unchallenged evidence, which I accept, was that but for his injury, the fencing work in question would have been carried out by the plaintiff himself, as it was within his skill set, having grown up on a rural property. I accept that the work in question would have been carried out by the plaintiff himself without having to engage the services of a fencing contractor, as set out in the terms of Exhibit "H". 410Although the claim for fencing costs was not formally pleaded in the statement of particulars of the claim, I am satisfied that this issue has not ambushed the defendant, nor has it caused unfair surprise or prejudice. I take that view because of the correspondence and email material which has been tendered: Exhibit "A". This shows that the solicitor for the plaintiff flagged the issue to the solicitor for the defendant by letter dated 30 September 2010, and the issue was placed on the agenda for a settlement conference on 28 October 2010, where that settlement conference was due to be held on 5 November 2010. 411I have considered the defendant's argument that the plaintiff only acquired his interest in the rural property after he was injured. I do not consider that to preclude the plaintiff from recovery of this head of damage. I take that view because, although in a completion sense, the property in question was not formally acquired by the plaintiff until after his injury, the plans for the acquisition had been in place for some time beforehand, and the plaintiff had made the commitment to acquire it. In those circumstances, I do not consider this component of the plaintiff's claim to be remote so as to render the fencing costs, or any portion of them, unrecoverable as damages. 412Although there is a superficial attraction to the argument that the expenses should be divided between the 3 families interested in the Ellalong property, in view of the fact that the work involved would have been undertaken by the plaintiff personally, I consider the relevant measure of damage was the value of his personal contribution that had to be replaced by externally employed labour. That was a task the plaintiff had planned to do without employing labour and he was unable to fulfil that plan . The fact that labour was employed to carry out work the plaintiff would have otherwise carried out does not mean that the relevant cost should be identified as being only the component that related to the plaintiff. 413The foregoing conclusion gives rise to the need to consider the defendant's argument that it should not be required to bear the cost of the materials required for the fencing work in question. There is no evidence that the plaintiff would have obtained such materials by means of his own manual labour. Accordingly, I consider it necessary to reduce the claim on account of the cost of the materials that would have inevitably been required for the job. 414Notwithstanding the absence of evidence of the costs of the materials component of the fencing costs, I do not consider it to be fair or reasonable to accept the defendant's argument that as a consequence of the non-identification of the labour component, no damages for fencing costs should be awarded. In this regard, notwithstanding the absence of evidence providing a differentiation between the cost of labour and materials, I consider it appropriate to make a conservative apportionment for that factor. Doing the best I can in the circumstances, albeit that it is somewhat arbitrary to do so, I apportion half of the claimed expenses to represent the cost of materials. 415I therefore award the plaintiff damages for the cost of expenses paid to a fencing contractor in the rounded down amount of $11,000 .

Future cost of rural labour 416The plaintiff makes a claim for the future cost of rural labour on the Ellalong property. The claim is for $50 per week projected at 5 per cent over 10 years (x 412.9) and discounted by 15 per cent to yield the claimed amount of $17, 548.25. 417In contrast, the defendant submitted that there was no satisfactory basis within the evidence for any award for damages for future costs of rural labour. 418Although the plaintiff seeks an inference that he will continue to need assistance with heavy labouring tasks on the farm, in my view, the state of the evidence does not permit a non-speculative and reasoned analysis for an award of future costs of farm expenses. In my view, this category of claimed future cost is different to the claim for past fencing costs, where I have accepted the evidence of the plaintiff to the effect that he would have undertaken the fencing tasks on the property by himself had he not been injured. I do not consider that the evidence reasonably permits me to safely draw a similar inference with regard to the plaintiff carrying out labouring tasks on his rural property in the future, had he not been injured. I do not consider that the specific evidence of the plaintiff to the effect that he intended to carry out the fencing of the property should by inference also extend to the ongoing weekly costs of work on the property. 419Accordingly, I decline to award the plaintiff any damages for the claimed cost of future expenses in connection with the plaintiff's interest in the rural property at Ellalong.

Future out-of-pocket expenses 420The plaintiff makes a claim for future treatment expenses in the global sum of $40,000. This claim was based upon the following components: (a) General practitioner consultations, averaging approximately 12 per annum at $60 each, which is the equivalent of $720 per annum or $13.84 per week; (b) Specialist consultation with a rehabilitation physician approximating 3 to 4 consultations per annum at an average cost of $160 per consultation, which is the equivalent of $640 per annum or $12.30 per week; (c) Physiotherapy consultations variously required during episodes of exacerbations and for muscle strengthening, comprising approximately 12 consultations per annum at $75 per consultation, which is the equivalent of $864 (sic for $900) per annum or $16.61 (sic for $17.30) per week; (d) Medication for analgesia and anti-inflammatory effects, estimated at $780 per annum or $15 per week. 421These amounts were identified as totalling $3004 per annum or $57 per week. On behalf of the plaintiff it was submitted that the projection of $57 per week at 5 per cent over 29 years (x 825) yielded $47,025, which, when reduced by 15 per cent for vicissitudes, amounted to $39,971.25, which was then rounded up to $40,000. 422The defendant criticised the claim for $40,000 as being " grossly excessive ". It is not necessary to engage with the vituperative epithet contained in that submission : Grill v General Iron Screw Collier Co. (1866) 35 LJCP 321, at p 330 per Willes J. The defendant submitted that the sum of $15 per week projected at 5 per cent over the plaintiff's remaining life span of 29 years (x 555) would be reasonable, in order to allow for the cost of intermittent analgesia, intermittent physiotherapy, occasional medical reviews and the like. The defendant submitted that the resultant amount of $8355 would be more appropriate to the circumstances. 423A survey of the medical evidence tendered in the proceedings revealed that there was some support for the plaintiff's claim in respect of the following treatment modalities: (a) There may be a need for an orthopaedic specialist to administer 1 or 2 cortisone injections at a cost of $300 per injection : Report of Dr Mastroianni, 30 October 2009, page 4; (b) A 4 month course of physiotherapy was envisaged in 2009: Report of Dr Mastroianni, 30 October 2009, page 4; (c) General practitioner consultations were suggested to take place every few months and related prescription pharmaceutical expenses were anticipated. This was estimated to cost between $1200 and $1500 per year: Report of Dr Mastroianni, 30 October 2009, page 4; (d) Some further rehabilitation treatment has been recommended by Dr Dalton. That suggested treatment persevering with more physiotherapy, including some further soft tissue therapy and some muscle energy release therapy. The plaintiff has stated that in the next year he intends to pursue that option, albeit that there is no indication of its likely success. 424In addition to the above items, in view of the permanency of the plaintiff's shoulder condition, I consider that it would be reasonable to make some sort of allowance to provide for occasional consultations over time with an orthopaedic specialist such as Dr Quain, or a rehabilitation medicine specialist, to monitor the plaintiff's condition and progress. 425Having regard to these factors, I consider that a lump sum buffer amount to compensate the plaintiff for these matters would be appropriate. In this regard, I consider that on the evidence, the amount claimed on behalf of the plaintiff in the sum of $40,000 seems too high and to a degree, artificially calculated. 426Based on the evidence that I have reviewed as outlined above, and given the likely intermittent nature of the treatment that has been suggested, I propose to make a global allowance for the plaintiff's future treatment needs. I consider that an amount of $25,000 is reasonable, being both fair to the plaintiff and not unfair to the defendant. This amount is the rough equivalent to the projection of a little over $30 per week at 5 per cent over the plaintiff's remaining life span of 29 years. I consider that comparison demonstrates the amount I have assessed to be reasonable and fairly reflective of the plaintiff's likely need for future treatment. 427I therefore award the plaintiff damages for future out-of-pocket expenses in the amount of $25,000.

Past out-of-pocket expenses 428The plaintiff made a claim for out-of-pocket expenses comprising the following amounts: (a) Physiotherapy expenses comprising 13 treatments totalling $1,230, travelling expenses of $389.24 and pharmaceutical expenses of $79.65. These amounts totalled $1,698.89 : Exhibit "O". Of this sum the plaintiff has already been paid an amount of $35, leaving a balance either paid or payable in the sum of $1,663.24. (b) Medical expenses repayable to Medicare in the sum of $93.05 : Exhibit "P". (c) Medical expenses comprising fees paid by the workers' compensation insurer to Dr Quain, Dr McCarthy whom I infer was either a surgical assistant to Dr Quain or an anaesthetist, accommodation fees as an inpatient at St Vincent's Private Hospital, and miscellaneous expenses reimbursed to the plaintiff in the total amount of $9,027.23 and excluding any weekly compensation payments : Exhibit "Q". 429These amounts are in the total amount of $10,783.52. The defendant's submissions have rounded this amount up to $10,784. 430The defendant's position with regard to its alleged liability for these expenses was based on the causation argument which it mounted and which I have rejected. The defendant does not dispute that the amounts claimed, or any components within the claimed amounts, are otherwise unreasonable. In this regard, I consider that each component of the amounts claimed by the plaintiff are themselves inherently reasonable. 431Consistent with my finding that the treatment incurred by the plaintiff was necessitated by the effects of his injuries, I accept that the amounts claimed by the plaintiff are recoverable from the defendant as damages for the reasonable cost of his injury-related treatment. 432I therefore award the plaintiff damages for past out-of-pocket expenses in the amount of $10,784.

Summary of damages assessment 433My assessment of the Plaintiff's damages is summarised as follows: (a) Past diminution in earning capacity $60,000 (b) Future diminution in earning capacity $250,000 (c) Superannuation losses $34,100 (d) Fox v Wood $1,522 (e) Past domestic assistance $17,074 (f) Future domestic assistance $24,085 (g) Past cost of fencing $11,000 (h) Future cost of rural labour $Nil (i) Future out-of-pocket expenses $25,000 (j) Past out-of-pocket expenses $10,784 Total $433,565

Disposition 434The plaintiff has succeeded in establishing his claim on all issues in dispute between the parties. He is therefore entitled to an order for the payment of his costs of the proceedings by the defendant on the ordinary basis, unless he can show that he is otherwise entitled.

Orders 435I make the following orders: (1)Verdict and judgment for the plaintiff in the sum of $433,565; (2)The defendant is ordered to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required.

APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128(4) [6 hours per week] WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT FOR 6 HOURS PER WEEK RATE RATE

1. 02.08.2008 to 15.08.2008 1.85 $921.60 $23.04 $255.74
2. 16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $1,939.55
3. 22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $1,808.76
4. 21.02.2009 to 15.05.2009 12 $946.40 $23.66 $1,703.52
5. 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $1,951.18
6. 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $1,849.62
7. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $1,868.13
8. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $1,907.45
9. 22.05.2010 to 17.11.2010 25.57 $986.90 $24.67 $3,784.87 TOTAL $17,074.82

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2011