Mills v Bale & Anor

In personal injury litigation, courts are frequently called upon to make assessments in damages cases where there is evidence that a plaintiff has had a history of prior injuries and disabilities, including multiple prior injuries. In the principal proceedings, all that was happening in the way of investigation of the plaintiff's earlier injury history was that the solicitor for the defendant was seeking particulars of those injuries to determine whether forensic use could be made of them, as was done in these proceedings. This was a detail which Mr Schipp ought to have given attention to, explored, documented and particularised in sufficient detail in order to protect the plaintiff from the type of criticism now being levelled against him by his former solicitors who have, by their only inadequate preparation, enabled this criticism to be made.

That inadequate preparation is readily apparent. The particulars of claim pursuant to DCR Part 9 Rule 27A were filed by Mr Schipp on 17 May 2001 : Exhibit "1" pp 29-32. The plaintiff's letter to Mr Schipp dated 1 October 2001, anomalously stamped as having been received on 10 September 2001, included a list of earlier injuries : Exhibit "1" pp 340, 342. There is no evidence that Schipp updated the filed particulars or made further enquiries of the plaintiff concerning these matters in order to appropriately prepare to deal with them, as would be expected of a solicitor exercising reasonable skill and competence in such circumstances.

Thirdly, there is no satisfactory proof in these proceedings that the plaintiff failed to disclose the details of his prior injury history to his treating doctors. The correspondence between the treating doctors, in so far as it records matter of history, represents a condensation of matters about which those doctors thought relevant to question the plaintiff. The terms of the reports do not reveal the questions or the answers, only a summary. The purpose of the consultations was for treatment, not medico-legal analysis. The questioning pathway that doctors would be likely to follow for those differing perspectives would obviously differ. I my view this particular aspect of the defendant's submission is unfair, flawed and should be approached with caution, for the reasons identified in Mason v Demasi [2009] NSWCA 227 per Basten JA at [2] and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. The fact that the prior injury history is not recorded in the medical reports does not necessarily constitute proof that the plaintiff failed to disclose such matters. He may not have been asked the relevant questions to elicit such answers.

Fourthly, I consider that the cross-examination that the plaintiff would most likely have received at an arbitration hearing or at a trial would essentially have been the same or very little different the cross-examination he faced in these proceedings on this matters associated with his prior medical history. I do not consider that such matters would have necessarily had a deleterious effect on his credibility or a damages assessment. I consider the submission to the contrary involves unwarranted speculation : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. The prevailing assumption must be that competent counsel would have appropriately framed these matters to minimize if not avoid the prospect of adverse findings being made against the plaintiff based on the content of summaries of histories contained in medical reports. This is a commonplace task that faces counsel in every personal injury case where there is conflicting medical evidence based on assumptions.

Fifthly, the submissions of the defendants that argues that the plaintiff's prior injury history, if traversed in cross-examination, would have compromised the chances of success of the principal proceedings ignores the reality of the approach to damages assessment where the defendant must take the plaintiff as he is found. The mere fact that an item of undisclosed history emerges does not of itself equate with a failure to succeed.

If the evidence at a hearing was that at the time of the subject injury, the plaintiff had a prior injury history of the kind that was outlined in these proceedings, but he was nevertheless able to perform heavy work, and was in fact performing such work when he was injured, as was the case here, then the prior injury history would be unlikely to adversely affect the plaintiff's proceedings other than by perhaps prolonging the length of the case for the additional time taken to explore and explain those injuries in order that they be viewed in the appropriate practical context for the consideration of a damages assessment.

Having heard the evidence of the plaintiff with regard to those prior injuries, and whilst giving full recognition to the possibility that judicial minds may differ in the approach to the analysis of such matters, I do not consider the plaintiff's prior injury history raises any disentitling factors on a causation analysis.

Rather, in my view, the appropriate way of making an allowance for such factors would be to make have an adjustment to the notional damages assessment. I propose to take this approach in my reasons when dealing with Issue 9.

Having accepted the plaintiff's evidence that the representation in question was in fact made by Mr Schipp, I also accept that the plaintiff relied upon that representation when he gave Mr Schipp his instructions to settle his case, based as they were, on the advice given.

My reasoning for accepting that there was such reliance is that the plaintiff undoubtedly received advice from Mr Schipp at the time he gave his settlement instructions. I infer that the advice was from Mr Schipp because the authority was addressed to his solicitors. Mr Schipp was the practitioner who was most likely to have produced that authority to procure the plaintiff's signature. There is no evidence that the plaintiff had access to his counsel after the morning conference had concluded before 10.00am, when Mr Arnold recorded the commencement of negotiations. Whilst Mr Schipp did not record the entire detail of the advice given, it is clear from the terms of the settlement authority, that advice was in fact given.

The plaintiff would have needed advice from Mr Schipp because of the following circumstances which I am satisfied had occurred: (a) The plaintiff left the conference with counsel believing his case should be valued in the range $350,000 to $450,000. I am satisfied that he firmly believed this was so, whatever either Mr Schipp or Mr Kirby thought to have been the position. I accept the plaintiff's evidence in this regard;

(b) The plaintiff had no awareness of the detail of the amounts involved in the negotiations with the defendant's representatives, other than that the negotiations would be opened on his behalf with a high figure. Necessarily this would most probably have involved a figure in the range identified in Mr Kirby's notes;

(c) The plaintiff was not a direct participant in the negotiations;

(d) The plaintiff was not involved in the detail of the offers made on his behalf by Mr Schipp. In this regard, I am satisfied that the plaintiff's only awareness of the "toing" and "froing" of the negotiations was from the periodic presence of Mr Schipp, who made comments to the plaintiff to the effect that offers that were being made by the insurer were not enough to enable a settlement to be reached. Recognising that this is a serious finding, I am nevertheless satisfied that this is what occurred because of a contest on this issue, I prefer the evidence of the plaintiff to that of Mr Schipp's explanation of his "usual practice", and for the reasons set out in my credit findings. The plaintiff's version of Mr Schipp's conduct in the course of these negotiations is consistent with the type of conduct of Mr Schipp displayed when he concealed from the plaintiff the consequences of his error in calculating the preclusion period for Centrelink benefits. I infer from those circumstances that if Mr Schipp was capable of keeping that kind of information from his client, and concealing the effect of it, then he would also have been capable of not informing his client of the detail of the negotiations that were being conducted on his behalf, including conducting negotiations in a monetary range that was below the plaintiff's monetary expectations from the proceedings;

(e) It was only when the plaintiff was made aware that the best offer that was available from the defendant was in the sum of $175,000 inclusive of costs and clear or workers' compensation benefits that it became necessary for Mr Schipp to talk the plaintiff down from his expectations that were in the range $350,000 to $450,000;

(f) In the circumstances the plaintiff would have spoken to Mr Schipp about the reasons why the insurer's offer was in the amount of $175,000 on the terms stated, and that this would have led to a need for Mr Schipp to have a discussion about it, because if left to his own devices, I am satisfied that the plaintiff would have rejected the offer, and would have opted to have his case heard, unless he was convinced by his legal advisor, in this case, Mr Schipp, of the need or merit in accepting the offer;

(g) Mr Schipp would have realised at that time the plaintiff's case was minimally prepared, and the negotiations were occurring in circumstances where it was in the financial interest of the firm and therefore Mr Schipp, for the case to settle without taking the preparation of it to the next step in readiness for a trial;

I am satisfied that it was in these circumstances Mr Schipp introduced the subject of "damning" video film when advising the plaintiff. I am satisfied that he did so in a manner calculated to influence the plaintiff into settling his case. I am satisfied that in those circumstances the plaintiff looked to Mr Schipp for advice and guidance as to what he should do given that his expectations, rightly or wrongly, were for a much higher amount.

Those circumstances would have provided the opportunity for Mr Schipp to provide advice to the plaintiff. In the context, there could be no other reason for him to take the plaintiff across the road and away from the courthouse to talk to him. The only compelling topic of conversation that would have been on the agenda at the time would have been the insurer's offer, and what the plaintiff should do about it.

Having accepted that Mr Schipp introduced the topic of "damning" video evidence in a manner calculated to influence the plaintiff's decision as to what should be done in response to the offer, and having accepted that the plaintiff felt "slayed" by the circumstances and by the statement that there was "damning" video evidence, I find he would have been at his most vulnerable for being influenced by any advice given to him by his solicitor whom he trusted, and to whom he looked for advice and guidance as to what to do.

What then followed was the advice that the plaintiff could "get nothing" and this was followed by Mr Schipp's the recommendation advising him to accept the offer. In these circumstances I am comfortably satisfied that the plaintiff was truthful in stating how, at that time, he felt compelled to take the offer as being the only option open to him, as this was the way in which it had been portrayed to him by his solicitor.

Whilst it is true, as was pointed out in submissions made on behalf of the defendants, that the plaintiff could have rejected the offer and run his case, in the face of the advice given, I consider it unlikely that he considered that course to be a viable option in the face of advice from his solicitor that he could "get nothing" and in the face of his solicitor's recommendation that he could get nothing. In my view, the settlement factors identified and relied upon by the defendants to suggest alternative reasons for the plaintiff's settlement instructions do not apply. I consider that the manner and content of the advice given to the plaintiff by Mr Schipp caused the plaintiff to settle the principal proceedings.

I consider the foregoing circumstances amply demonstrate that the plaintiff relied upon Mr Schipp's representation which then caused him to compromise his claim in the principal proceedings. In my view the foregoing analysis serves to satisfy a conventional analysis of causation in this case: s 5E CL Act.

It therefore remains to consider whether the causation requirements of s 5D of the CL Act are satisfied. In my view, for the reasons that follow, those requirements are met in this case.

Factual causation has been established in that were it not for Mr Schipp's breach of duty of care in making the representation to the plaintiff, there would not have been a settlement as the plaintiff would have continued in his belief that he was entitled to damages in the range $350,000 to $450,000, which would necessarily have meant that his case would have proceeded to an arbitration hearing and a later rehearing because the insurer of the defendant would not have offered a sum approaching that range : s 5D(1)(a) of the CL Act.

I consider that it is only appropriate to extend the scope of the viability of the defendants to the harm claimed to have been caused to the plaintiff because the events arose out of professional services provided by the defendants, through their employee Mr Schipp, and a duty of care arose from those circumstances : s 5D(1)(b) of the CL Act.

In my view, there were no exceptional circumstances shown to exist within the meaning of s 5D(2) of the CL Act.

When viewing the circumstances of the plaintiff on the day of the arbitration hearing, and taking into account his subjective belief that he was entitled to receive damages in the range $350,000 to $450,000, noting that such belief was firmly entrenched in his thinking as a consequence of a conference he had with his counsel beforehand, I consider that the plaintiff would have rejected the offer of $175,000 inclusive of costs and clear of workers' compensation payments were it not for the negligent conduct of Mr Schipp, as I have found to have occurred : s 5D(3) of the CL Act.

In my opinion, the circumstances of this case do not gives rise to any disentitling factor was that would detract from the scope of liability that would result in a finding that the defendants are liable to the plaintiff in damages for the negligent conduct of Mr Schipp : s 5D(4) of the CL Act. In that regard, the plaintiff entered into a contract of retainer with the defendants. That contact engaged a duty of care on the part of the defendants. The commercial nature of that retainer, together with the professional nature of the duty of care owed, requires that where the plaintiff has established negligence on the part of Mr Schipp, justice requires that the defendants be held to be vicariously responsible for the conduct of Mr Schipp.

In my view, the plaintiff has established causation both according to a common sense analysis according to common law principles : March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50; Bennett v Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 40, and also according to the statutory requirements of ss 5D and 5E of the CL Act.

In summary, my analysis of s 5D of the CL Act issues leads me to the following conclusions: (a) Factual causation has been established in that the negligence of Mr Schipp was the necessary condition of the harm complained of by the plaintiff : s 5D(1)(a) of the CL Act ;

(b) As the harm suffered by the plaintiff arose in the course of a professional relationship between the plaintiff where the defendants were rewarded for their services on commercial terms, it is appropriate that the scope of the liability of the defendants be held to extend to the harm so caused : s 5D(1)(b) of the CL Act;

(c) The fact that the plaintiff suffered financial harm in the course of the provision of professional services for reward indicates that there are no exceptional circumstances that would contraindicate a finding that the defendants should bear responsibility for the harm so caused : ss 5D(2) and 5D(4) of the CL Act;

The plaintiff has therefore satisfied the requirements for proof of causation of his loss being due to the negligence of the defendants.

Issue 4 - Probable course of the litigation absent the claimed representation

A consideration of Issue 4 requires the determination of the likely course and timing the principal litigation would have taken if the representation had not been made, and if there had been no settlement of the proceedings at the arbitration hearing on 1 August 2001.

If there had been no settlement, the options would have been to adjourn the proceedings for amendment of the particulars of claim, or to simply proceed with the arbitration to evaluate the result. In my view the possible need for an adjournment would have arisen once the sticking point of economic loss would have been exposed to the plaintiff during explanations of the various offers of settlement, if proper discussion taken place with Mr Schipp during the negotiations. Having said that, I doubt that an adjournment would have been pursued simply because the more pragmatic course would have been to proceed and call evidence in order to evaluate the result. Either way, I consider that it would have been highly likely that the principal proceedings would ultimately have been listed for a rehearing before a judge of the District Court.

In my view this likelihood would have been driven by factors that operated on both sides of the record. In the case of the plaintiff, I consider that absent the representation, his expectations on the value of his case were sufficiently entrenched and sufficiently firmly held so as to require displacement by rational explanation, that an award below the bottom of the range he had in mind would probably have resulted in him seeking a rehearing.

Similarly, in the case of the insurer, if an arbitrator had entered an award for an amount more than around $200,000, which was reportedly the view of Mr Harben, but expressed to have been inclusive of costs, the insurer would have most probably sought a rehearing, depending on the amount, noting that on 25 June 2002 Mr Arnold had advised the insurer of a possible range of damages between $180,583 to $285,396 : Exhibit "1" p 453. Either way, a rehearing would have required the parties to re-evaluate the particulars against the evidence and have the matter listed before a judge. It therefore becomes relevant to assess the probable timing of a rehearing before a judge.

The arbitration hearing of the principal proceedings was scheduled to take place on 1 August 2001. At that time, the well-understood and adopted practice was that arbitrators were not required to give detailed reasons for their decisions. The practice was that arbitrators would simply enter an award at some stage shortly after an arbitration hearing. Allowing for the possibility that some time may have been taken for the arbitrator to consider the issues before making an award, I have assumed that an award would most probably have been entered by the end of September 2002.

Given the evidence of the plaintiff as to his monetary expectations from the principal proceedings, I consider that it would have been more probable than not that any award entered by the arbitrator would have resulted in an application for a rehearing by the court. The basis for that view is that if the plaintiff had received an award for an amount less than his stated expectation, he would most probably have been the applicant for a rehearing by the court. If, by the terms of the award of the arbitrator, the defendant in the principal proceedings had been held liable for an award of damages in an amount which was of the order of the plaintiff's monetary expectations, I consider that the defendant would have most probably sought a rehearing before the court.

In either case, a rehearing could have been sought by either party as of right, subject to any possible disincentives as to costs in the event that a judgment obtained on a rehearing did not exceed the amount of the arbitrator's award by a factor of 20 per cent. I do not consider that such a risk factor would have deterred the plaintiff from seeking a rehearing if the arbitrator's award had not met his expectations. I infer this to be so from the fact that the plaintiff has undertaken the present proceedings, an endeavour which requires an even greater preparedness to undertake financial risk by litigation than was involved in the principal proceedings.

In my view, such potential costs disincentives would not have affected the plaintiff's decision. I take this view because the plaintiff's costs agreement with the defendants was, essentially, for a fixed lump sum for the cost of a trial, plus a daily rate beyond the first date. I infer from the plaintiff's evidence of his general attitude to his monetary expectations from his case, that the risk of possibly having to bear the defendant's costs of a rehearing in the event that a judgment did not exceed the arbitrator's award by 20 per cent, held little fear or disincentive for him.

In view of the foregoing analysis, and given the well known policy of the court which applied at that time, governing listing arrangements to ensure that a rehearing from an arbitrator's award took place reasonably promptly after an application for rehearing had been lodged, it seems likely that a rehearing would have been completed early in the first of term of 2003. I consider that time to be reasonable having regard to the predictable need to upgrade the particulars and the supporting evidence without causing prejudice to the defendants. In that event, ordinary circumstances prevailing, and allowing for an intervening mid-year court recess, I consider that a judgment in the plaintiff's favour would most probably have been expected to have been entered in the principal proceedings, by the end of November 2003.

Within this period I allow for the possibility that the proceedings would not have concluded within the time usually allocated for a civil action to be tried on circuit in Newcastle, thus necessitating some delay during which a partly heard case would be brought back to Sydney to be concluded.

I have analysed the likely quantum assessment of the principal proceedings in relation to Issue 9.

Issue 5 - Whether the plaintiff was owed a relevant duty of care by his employer

A consideration of Issue 5 requires an evaluation of whether, in the principal proceedings, the plaintiff would have been able to establish that his employer owed him a relevant duty of care. In argument, the defendants in these proceedings ultimately conceded that the plaintiff would probably have been able to establish that a relevant duty of care was owed to him. Given the well settled principles governing the relationship between employer and employee, in my view, a finding in the principal proceedings to the effect that the plaintiff was not owed a relevant duty of care would have been an extremely unlikely outcome: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13].

Issue 6 - Whether employer breached the duty of care owed to the plaintiff

A consideration of Issue 6 requires an evaluation of whether the plaintiff would have been likely to have succeeded in demonstrating a breach of duty of care on the part of his employer. Ultimately, the defendants in these proceedings conceded that on the evidence, the plaintiff would probably have been able to establish a breach of duty of care on the part of the employer.

Given the plaintiff's description of the manner in which the incident in question occurred, it seems to me that it would have been most unlikely that a contrary finding would have arisen. I take this view because of what I consider to have been the inherent unreasonableness and lack of safety involved in the system of work, which required the plaintiff to jump off a ladder to get himself to ground level because the ladder that had been provided to him was too short. The shortness of the ladder meant the plaintiff could not return to the ground without jumping. In my view this involved a clear breach of the employer's duty to provide the plaintiff with a safe means of access to and from the place at which he was required to carry out his work.

Mr Arnold undertook a liability evaluation of the plaintiff's claim for the benefit of his insurer client. At page 5 of his 25 June 2002 letter of advice to his client, he noted that the defendant in the principal proceedings, who was the brother of the plaintiff, was not disputing the facts that underpinned the claim. Mr Arnold advised his insurer client that it would be difficult to defend the proceedings. At page 16 of that letter Mr Arnold predicted "that the Plaintiff would be successful with a Verdict in his favour solely on the question of Liability". At page 17, Mr Arnold's advice in respect of damages was that "a great deal will hinge on how the Plaintiff may present if, in fact, the matter does go to Trial": Exhibit "1" page 442. In my view Mr Arnold's advice was sound.

In my view, the prospect of the plaintiff failing to establish a breach of duty of care on the part of the principal proceedings would have been a most unlikely possibility.

Issue 7 - Whether there was contributory negligence on the part of the plaintiff

A consideration of Issue 7 involves an evaluation of the conduct of the plaintiff in terms of his duty to take reasonable care for his own safety in the workplace. The defendants in these proceedings ultimately conceded that a finding of contributory negligence against the plaintiff was an unlikely outcome of the principal proceedings. In my view that concession was properly made. Accordingly, I find that it would have been improbable that the plaintiff would have suffered a finding of contributory negligence against him in the principal proceedings.

Issue 8 - Nature and extent of plaintiff's injuries and disabilities

A consideration of Issue 8 requires a review of the evidence that identifies the nature and extent of the plaintiff's initial injuries, the treatment he obtained for those injuries, and the nature and extent of the residual disabilities that continued to affect the plaintiff at the time of the notional trial in 2003.

The sources of evidence for these matters are the evidence of the plaintiff, the evidence of the treating doctors' reports, and the medico-legal reports that were obtained both on behalf of the plaintiff and on behalf of the defendants. This is particularly so when no contemporaneous statements had been obtained by the defendants for use in the principal proceedings.

Subject to matters resolving credibility of testimony, medical reports can be a legitimate source of evidence concerning the matters that affected the plaintiff : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995.

In this case this is particularly so since the plaintiff's former solicitors appeared to have taken no steps to obtain a statement from the plaintiff that contemporaneously dealt with such matters. Such a statement would have served as a useful guide, not only to this analysis, but also for the purpose of focusing questions for medical examiners to report upon and to assist with the process of adducing evidence at a trial of the principal proceedings. No oral evidence was called from any doctor in those proceedings.

Difficulty identifying the relevant medical evidence

Surprisingly, a difficulty was encountered in reviewing the medical reports relating to the plaintiff for the purpose of determining what medical evidence would have been adduced on behalf of the plaintiff at a notional trial.

There is nothing in Exhibit "A", which comprises the former solicitor's file in relation to the principal proceedings, that indicates which of the reports in the solicitor's file were in fact served on the solicitor for the defendant in those proceedings, either at the time of the initial filing of the proceedings, or at the time of the arbitration hearing. The index to Mr Kirby's brief provided no assistance in this regard as it referred to medical reports generically without listing them. If in fact there was a schedule kept by the defendants that indicated which reports had been served and on what dates, it was not in evidence.

The extracts of Mr Arnold's file within Exhibit "1" only refers to the report of Professor Ghabrial dated 14 January 2002 as having been served by Bale Boshev. The context was Mr Arnold's tabulated impairment analysis, where he compared the opinions between the plaintiff's medical reports, where Professor Ghabrial's report was the only one mentioned as being a plaintiff's report, compared to the reports of Dr Lim, Dr Smith, Dr Pillemer and Dr Price, who had been engaged to provide reports for the defendant.

I shall proceed on the assumption that the correspondence from all of the plaintiff's treating practitioners would have found their way into evidence in the principal proceedings. That said, a reading of those reports indicates that they do not comprehensively deal with the plaintiff's problems.

In the circumstances of this case, with the events in question occurring 9 years before the plaintiff gave his evidence in these proceedings, in order to discern the nature and extent of the plaintiff's injuries, I have reviewed that plaintiff's evidence in the context of the complaints attributed to him by his treating doctors. In this regard, I have not overlooked the medico-legal reports as a source of evidence, but since the attendances of the plaintiff for treatment were problem-based, I consider the reports from the treating practitioners to be a more reliable guide to the documentation of the plaintiff's injuries. The medico-legal reports are of course relevant as a source of guidance to the task of determining the extent of the plaintiff's disabilities.

After reviewing the relevant reports between paragraphs [516]-[641], my summary of the plaintiff's injuries, the treatment received, and the disabilities that remain, is set at between paragraphs [642]-[671] of these reasons.

To reach that point, it was first necessary to review the evidence of the plaintiff as to his reported problems, and then review the treating practitioners reports and then the medico-legal reports.

When the plaintiff fell from the wheat bin, he became aware of excruciating pain in his left knee. At that time, he felt that something had snapped within that knee. When he fell, the left side of his head struck a rock, and in the course of these events he received a cut to the side of his head. In these events he also suffered pain in his left shoulder and felt pain in his neck in the region C6 to T10.

The plaintiff said the "nasty" or severe component of the knee pain substantially subsided after about 24 hours. It appears this was because the plaintiff said he was taking substantial amounts of strong pain killing mediation. The plaintiff said the pain in the plaintiff's left shoulder and neck region continued to bother him and he sought out medical assistance. Due to the remote location of his brother's property, the plaintiff had to travel by train from Moree to Newcastle to obtain medical assistance and treatment. This was a matter that Mr Arnold raised with the insurer as a matter of fact that might cast some doubt on the severity of the plaintiff's injuries : Exhibit "1" p417.

Review of records and reports from practitioners who treated the plaintiff

Since I have formed the view that the plaintiff's case was inadequately prepared and particularised by the defendants, including by inadequate investigation of the medical issues, I consider it was important to undertake a detailed review of the medical evidence to identify some significant matters that would have an impact on an assessment of damages. I consider that a detailed review is required because of the nature of the attack made to the plaintiff's credit on medical issues. That review is set out in the order in which the treatment or consultation took place.

Dr Roger Smith - treating general practitioner - first point of medical contact

The plaintiff's first point of medical contact after his injury was with his general practitioner, Dr Roger Smith of Broadmeadow, whose clinical records were tendered by the defendants in these proceedings as part of Exhibit "1" pp 123-142. The records included a pre-injury consultation.

In this latter regard, Dr Smith's records show that before the incident in question, namely on 29 November 1999, the plaintiff had consulted him and had complained of his knees feeling weak. The context was not specified and he was given reassurance. This was not explored in the evidence. There was no further pre-injury mention of knee problems in Dr Smith's records until 12 November 2000. I infer this was not a lasting problem until the occurrence of the incident in question.

On 12 November 2000, the plaintiff had his first post-injury consultation with Dr Smith. On that occasion Dr Smith noted the history that the plaintiff had twisted his right knee whilst getting out of a wheat bin. At the initial consultation, there is no recorded mention of the neck pain or of the injury to the neck or of a laceration to the left side of the head.

On 14 November 2000 Dr Smith saw the plaintiff again. Dr Smith noted the plaintiff had difficulty with reduced extension of his twisted knee, and referred him to Dr Ostinga, an orthopaedic surgeon.

In December 2000 Dr Smith saw the plaintiff on several occasions and noted that since the plaintiff's fall he had been experiencing neck pain. He also noted a history of bilateral occipital headaches, he made a note that appears to be a reference to the left shoulder and the need for a cervical x-ray. Dr Smith also noted tenderness in the right para-cervical region and recommended physiotherapy treatment.

It appears from Dr Smith's records that there were some initial difficulties in getting the insurer to pay for treatment. This may or may not have influenced the frequency and pattern of treatment. In these circumstances I draw no adverse inferences from any pattern of consultations with the treating practitioners.

Dr Smith's records do not contain any early request from Bale Boshev for a report to interpret his notes. The solicitors for Bale Boshev did so in these proceedings and obtained a report from Dr Smith. It was dated 11 August 2009 : Exhibit "1" pp 140A-140C. Having received instructions to act for the plaintiff on 11 April 2001, and having filed proceedings on 17 May 2001, Bale Boshev waited until 11 December 2001 to obtain a report from the plaintiff's treating general practitioner, Dr Smith.

Dr Smith's report documented complaints by the plaintiff concerning his right knee, his neck, his left shoulder and his left arm. In his 2009 letter, Dr Smith advised the defendants' solicitors in these proceedings, reasonably in my view, that so many years after these events, he could not usefully add any further detail to his notes that would be reliable.

Dr Smith noted that for a time since 2008, the plaintiff had some concerns as to whether he might have had a heart condition because of some complaints of chest pain. This is not a matter that I consider to be relevant to these proceedings as it is well outside the time frame for a notional damages assessment in 2003. In my view, that issue, and any other post-2003 health issues, are not relevant to a retrospective assessment with a cut-off point in a notional trial that would have taken place in 2003. The occurrence of any other health problems after 2003 are necessarily catered for within the allowance of a discount for potential adverse vicissitudes to be applied to the notional assessment.

Dr Smith also noted the plaintiff's current grievance about his compensation claim. The context of that note could be suggestive of a psychological problem.

On 14 November 2000 the plaintiff underwent a right knee x-ray. This showed a small joint effusion in the sub-patellar bursa. No significant osteoarthritis was seen.

On 28 November 2000, at the referral of Dr Smith, the plaintiff was seen by Dr Kim Ostinga, an orthopaedic surgeon. Dr Ostinga noted the plaintiff's inability to straighten his right knee, which appeared to be locked. He suspected a bucket handle tear of the right medial meniscus of that knee.

On 3 January 2001, at the referral of Dr Smith, the plaintiff was seen by Ms Chris Downs, a physiotherapist. The plaintiff received 9 treatments for his knee problems. The treatment consisted of ice packs and an exercise programme. The neck problems were treated with a cervical collar to reduce sleeping problems.

On 20 February 2001, Dr Ostinga reviewed the plaintiff for a second time. At this consultation it was recorded that plaintiff's right knee was reported to have improved, and that he was greatly troubled by his neck, which was the reason given for the delay in having knee surgery. Examination of the right knee revealed marked muscle wasting, medial joint line tenderness, and an inability to straighten the knee joint. Arthroscopy had not yet occurred.

On 12 March 2001 Dr Ostinga reviewed the plaintiff for a third time and performed an arthroscopy procedure on the right knee. The suspected bucket handle tear of the meniscus was not confirmed at operation. Instead, a pre-existing condition of osteochondral dessicans of the knee cartilage was observed, with a fresh loose dislodged fragment of articular cartilage originating from the edge of the crater of the knee structure. The fragment was removed. This was followed by physiotherapy. Osteochondral dessicans was identified in the evidence as a degenerative condition of the articular cartilage.

On 12 April 2001, Dr Ostinga saw the plaintiff for a fourth time. He wrote to Dr Smith advising that he thought the plaintiff's capacity for work had not been adversely affected by the injury and a full recovery was expected. He predicted the knee injury would expose the plaintiff to osteoarthritic changes later in life. Curiously, Dr Ostinga stated that the plaintiff's injury was not to be blamed for the dislodgment of the loose body that caused the plaintiff's knee to lock.

That view was not fully explained. On a commonsense and legal analysis I doubt that Dr Ostinga's comment would have remained unexplained at a trial so as to cause a difficulty of proof of causation in the sense of there being a connection between the plaintiff's injury and subsequent problems that were treated by Dr Ostinga : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. His subsequent letter of clarification to Bale Boshev, which was dated 31 May 2001, confirmed his earlier letter was not entirely clear, and he confirmed the causal relationship between the right knee injury and the dislodgment of the loose fragment. That connection has been confirmed by other specialists as well.

On 13 February 2001 the plaintiff underwent a CT scan of his cervical spine which was interpreted by the radiologist as showing early degenerative changes at the levels C4/5 and C6/7.

On 14 February 2001, at the request of Dr Smith, the plaintiff saw Dr Robert Kuru, a spinal and orthopaedic surgeon. Dr Kuru was of the initial opinion that it was possible the plaintiff had a C3 disc herniation with hyperaesthesia over the C4 nerve distribution, noting the complaints of neck pain, hyperaesthesia of both shoulders, severe headaches and a twisted right knee. He recommended flexion/extension exercises. He suspected an upper cervical nerve root traction injury. He also arranged for a neck MRI scan to investigate the complaints of neck pain and bilateral shoulder pain.

On 1 March 2001 the report of the MRI scan indicated some minor degrees of central and broad based disc protrusions at the levels C4/5, C5/6 and C6/7. Dr Kuru considered these signs to be consistent with early degenerative changes. He suggested physiotherapy, exercise and intermittent anti-inflammatory medication.

On 14 March 2001, Dr Kuru saw the plaintiff for a second time, and on that occasion he reviewed the results of MRI investigations. He formed the view that the plaintiff had a soft tissue injury of the neck with exacerbation of pain and early degenerative changes in the cervical spine. He recommended exercises, intermittent anti-inflammatory medication and physiotherapy.

On 14 June 2001, pursuant to a request for him to provide a report, Dr Kuru wrote to Bale Boshev to outline his medical assessment of the plaintiff. The questions asked of him were not apparent from the report. He advised that the plaintiff had suffered a soft tissue neck injury. He thought his ability to perform manual labour had obviously been affected, to the point that any form of manual labour was precluded at that stage, due to discomfort. He advised the condition was not static and suggested a review in a further 6 months. There were no further reports obtained from Dr Kuru.

On 29 March 2001, at the referral of Dr Smith, the plaintiff was examined by Dr D Pacey, a consultant specialist in rehabilitation and pain management. She concentrated her assessment to the plaintiff's complaints of knee problems, as well as his neck and associated shoulder problems. She thought the plaintiff had suffered a disruption to the zygapophyseal joints of the neck and had associated muscular tension and headaches. Her recommendation was for exercises rather than therapeutic intervention.

On 14 August 2001 the plaintiff saw Dr Ostinga, again complaining of continuing symptoms in his right knee. Dr Ostinga analysed the plaintiff's knee problem as being due to ligament contraction because of the prolonged flexion position in which the plaintiff had held his knee before it was surgically unlocked. Since then the plaintiff continued to complain of continued locking or what was described as a pseudo-locking associated with episodes of pain in the knee joint.

Dr Ostinga's re-examination revealed slight restriction in the range of flexion movement in the right knee. This caused the knee to occasionally fall forward. He suggested the need for continued home exercises.

Confusingly, in the light of his letter dated 31 May 2001, Dr Ostinga stated that the relationship between the plaintiff's locked knee and the injury was "tenuous". My view of that comment is that the basis for it is unclear. As earlier indicated, I consider it would be unlikely to be reflected in a finding of a lack of causal connection between the knee injury and the continuing disabilities relating to the knee, including the tendency to fall forward or to give way. Dr Ostinga's comment perhaps typifies the different analytical pathways between medical and legal perspectives on causation issues.

On 11 December 2001 Dr Smith provided a report to Bale Boshev pursuant to a request that he do so. Dr Smith prepared a summary of the treatment to date. That summary covered the matters already traversed in the preceding paragraphs.

In addition, Dr Smith identified a history of the plaintiff having fallen in October 2001 due to right knee instability. The date of that fall, namely 18 October 2001, was documented by the plaintiff in a letter to his solicitor on 14 November 2001: Exhibit "1" p 351. In this regard, the plaintiff is recorded as having given Dr Smith a history of having twisted his left ankle and jarred his left shoulder. Dr Smith recorded that in addition, when the plaintiff fell to the ground he exacerbated his neck condition.

At that time Dr Smith certified the plaintiff as unfit for work. In his findings on examination, Dr Smith noted tenderness in the plaintiff's lower cervical spine and in his trapezius muscles. The plaintiff's experience of numbness in both arms was also noted. Dr Smith thought the plaintiff's unfitness for work was due to his ongoing neck condition. He thought there would seem to be permanent disability to the neck and possibly the right knee. Dr Smith was deferential to specialist opinion on these matters.

Dr Guttmann - radiological examination of left shoulder following fall on 18 October 2001

On 12 December 2001, at the referral of Dr Smith, the plaintiff was examined by Dr Albert Guttmann, a radiologist. The purpose of the examination was to x-ray the left shoulder following his fall on 18 October 2001, when his right knee had given way from under him. Dr Guttmann diagnosed a subluxation of the acromio-clavicular joint with bony fragments seen to overly the region. Dr Guttmann was uncertain as to whether this was due to a new or an old injury. He favoured the latter explanation. He expressed that view as a matter of probability, but the underlying reasons for that view were not included in his short letter to Dr Smith. Dr Guttmann also stated that a bony avulsion was also suggested on his ultrasound examination of the plaintiff's left shoulder.

It was apparent from Mr Kirby's letter dated 18 January 2002 at page 356 of Exhibit "1", that it was intended not to serve this report from Dr Guttmann. Notwithstanding that advice, which I expect was acted upon, I consider that Dr Guttmann's report would have appeared in the evidence in any event, as it would have been revealed when Dr Smith's clinical notes were produced on subpoena at a trial. I therefore consider that it is relevant for this report to be considered in this context for the purpose of analysing the plaintiff's injuries and disabilities.

On 28 March 2002 and 30 May 2002, Dr Pacey respectively saw the plaintiff again for a second and a third time.

In respect of the second review and consultation, which was on 28 March 2002, after reviewing her earlier findings, she recorded a history of the plaintiff having injured his right knee and having twisted his left ankle after his knee had given way in October 2001. She recorded the history of a fall having occurred on that occasion when the full force of the fall was taken on his left shoulder, resulting in him experiencing a sharp excruciating pain, apparently aggravating an old injury to the left shoulder, which had involved disruption of the acromioclavicular joint at that time. The problem had apparently been treated at the time of the original injury and the plaintiff reported that the shoulder had not been painful before the fall in October 2001. On this occasion in 2002, Dr Pacey injected the plaintiff's left shoulder.

At the consultation on 30 May 2002 the plaintiff reported continuing to have sharp left shoulder pain, especially on lifting or when stressing his shoulder. Dr Pacey noted that he was taking Panadeine Forte 2-3 times per day. She recorded a history that physiotherapy treatment had to be ceased because it tended to aggravate the pain.

Dr Pacey summarised the plaintiff's ongoing problems comprising continuing pain in the whole of his neck, pain from occiput down the midline and into the upper thoracic spine, sharp left shoulder pain, radiated pain down on left arm and fingers and to the shoulder tip on the right side of the left shoulder, a sharp shooting pain going up the neck into the head around temples, associated with some visual disturbance, blurriness and a feeling of dizziness. She also noted that the plaintiff's right knee continued to ache and to occasionally give way.

Dr Pacey's findings on examination were that the plaintiff sat in a very protected posture with hunched shoulders, and in apparent pain. Tenderness was also noted in the neck. At this last examination she noted that the plaintiff's neck movements were reduced to about half the normal range in all directions. She recorded restriction of left shoulder movements and tenderness over the joint.

After reviewing the history, the clinical findings on examination, and the results of imaging studies, Dr Pacey assessed the plaintiff as suffering from neck pain and knee pain as a result of the original fall in the workplace, producing muscular tension and tenderness, noting the possibility of an underlying zygapophyseal joint destruction. She made the connection between the plaintiff's knee problems and the aggravation of an old left shoulder injury which occurred in the more recent fall, and which other evidence identifies as having occurred on 18 October 2001.

Dr Pacey restricted her assessment of the plaintiff's fitness to work solely in relation to his neck and shoulder problems. She specifically commented that she did not assess his knee problems.

In Dr Pacey's assessment, the plaintiff was not fit for work in his previous occupation as a truck driver/operator and was not fit for any work that required lifting. She was of the view that the plaintiff was unfit for work of a like nature.

I have construed Dr Pacey's opinion to state that the plaintiff has had a material aggravation of a pre-existing left shoulder injury. This conclusion derived from her assessment of the plaintiff of having a 15 per cent permanent impairment of the left shoulder, 50 per cent of which was due to the pre-existing or longstanding injury. It follows that the remaining 50 per cent was due to the fall the plaintiff suffered on 18 October 2001. I consider this to constitute a material aggravation of the pre-existing condition, particularly where the history given by the plaintiff was that the previous condition had become quiescent in that it had not given him pain for some time, until the fall occurred.

Dr Pacey referred the plaintiff to Dr Stephen Kemp for specialist review of his left shoulder problems.

Dr Kemp - orthopaedic surgeon specialising in hand and upper limb surgery

On 10 July 2002, at the referral of Dr Pacey, the plaintiff was assessed by Dr Kemp. He recorded the history of the plaintiff having slipped and fallen down some stairs in about 1993 which had resulted in an injury to his left shoulder, which apparently settled following a depot steroid injection and physiotherapy. He recorded the history that the shoulder had not troubled the plaintiff before the 8 November 2000 injury. He then explored the history of the plaintiff having injured his left shoulder and aggravating the neck condition in the subsequent fall in which his right knee gave way whilst walking on uneven ground. He recorded that this fall had caused the plaintiff to develop recurrent left shoulder pain.

Dr Kemp recorded the plaintiff's history of pain over the anterior and superior aspects of the left shoulder with reports of pain when lifting and inability to lay on the left side, causing regular waking, at least five times per night. He recorded the plaintiff's own impression that 50 per cent of his problems were emanating from the left shoulder and 50 per cent from the neck. He injected the acromioclavicular joint with local anaesthetic, without significant benefit in pain reduction.

Dr Kemp thought the plaintiff's situation was a difficult one. He characterised the plaintiff as being in that group of patients where treatment should necessarily be approached with caution because his problems were far more diffuse than just the acromioclavicular joint injury. He was reluctant to offer surgery and suggested exercises and physiotherapy.

It is clear from Dr Kemp's report that he had assumed that the dislocation of the plaintiff's acromioclavicular joint occurred at the time of the October 2001 fall. Having regard to the opinion of Dr Pacey, who thought that the plaintiff's left shoulder impairment involved aggravation of an old left shoulder injury, I do not consider that it is important to try and reconcile the opinions of Dr Guttmann, Dr Pacey and Dr Kemp as the end result necessarily remains that the plaintiff has suffered a significant aggravation injury, whatever the underlying condition.

It is also necessary to note that the difficulty in reconciling these opinions is as a result of the state in which the medical evidence and the investigation into the medical evidence was left by the defendants in these proceedings, in the course of preparing the plaintiff's principal proceedings for a hearing. In any event, the defendants in these proceedings did not challenge the opinion of Dr Pacey as to the fact of an aggravation injury to an older left shoulder injury. I have assumed that if her opinion was to be challenged, she would have been required for cross-examination.

In the context of a state of uncertainty as to which medical reports had being served by the defendant in the principal proceedings, it is relevant to identify the available reports that were specifically addressed to the defendant in the principal proceedings. Only one medico-legal report was obtained by Bale Boshev from a non-treating medico-legal expert, namely Professor Ghabrial.

Reports addressed to Bale Boshev from treating practitioners

The defendants in these proceedings obtained a number of historical treatment reports Dr Ostinga on 12 April 2001, which was the subject of a later clarification by Dr Ostinga on 31 May 2001, from Dr Kuru on 14 June 2001, from Dr Pacey on 19 and 25 June 2001, from Ms Downs on 3 October 2001, and from Dr Smith, the general practitioner, on 11 December 2001. I have already referred to these reports in the course of the preceding summary.

Professor Ghabrial - consultant orthopaedic and spinal surgeon

On 14 January 2002, at the request of Bale Boshev, the plaintiff was assessed by Professor YAE Ghabrial, a consultant orthopaedic and spinal surgeon. Professor Ghabrial obtained a history from the plaintiff concerning the 8 November 2000 injury and in relation to the aggravation injury that occurred in October 2001 which caused jarring to the left shoulder and which, on the history, he noted had settled down sometime beforehand.

Professor Ghabrial's findings on clinical examination of the plaintiff are recorded as showing generalised tenderness all over the neck, with muscle spasm. He also noted generalised weakness of the left upper limb and tenderness and discomfort in the right knee on examination. He also reviewed the imaging studies he identified in his report and he interpreted the neck MRI scan performed on 1 March 2001 as showing minor and central broad-based disc protrusions at levels C4/5, C5/6 and C6/7.

Professor Ghabrial identified the plaintiff's problems as being: (a) injury to the levels C4/5, C5/6 and C6/7 discs, with a minor degree of protrusions more pronounced at the C4/5 segment towards the left side;

(b) post-traumatic subluxation of the left acromioclavicular joint;

(d) soft tissue injury to the right wrist (resolved);

(e) soft tissue injury to the left ankle (resolved).

Professor Ghabrial noted that the right knee symptoms had settled down to some extent following the arthroscopy surgery. He also noted the continued residual symptoms in the neck and upper limbs, and he described these as being consistent with the injuries sustained.

Professor Ghabrial was of the opinion that the plaintiff had permanent impairment of his neck assessed at 40 per cent, permanent loss of efficient use of his right upper limb at or above the elbow assessed at 10 per cent, permanent loss of efficient use of the left upper limb at above the elbow, assessed at 15 per cent. He also assessed the plaintiff's loss of efficient use of the right lower limb at or above the knee as a result of the right knee injury at 5 per cent. He stated his conclusion that the plaintiff's condition had stabilised and that the identified impairments were permanent and were due to the effects of the injuries sustained on 8 November 2000.

Professor Ghabrial was of the opinion that the plaintiff remained unfit for activities involving heavy lifting, excessive bending and twisting on a permanent basis, as well as activities involving excessive use of the upper limbs above shoulder level. Professor Ghabrial was of the opinion that the plaintiff would never be able to go back to his previous employment as a truck driver, or to any employment involving these activities. He did not comment on the plaintiff's ability to work as a spinologist.

Medico-legal reports commissioned on behalf of insurer in the principal proceedings

Exhibit "1" contained reports from 4 medico-legal experts and a non-medical functional capacity evaluation report from an organisation called Workhab. These reports were commissioned by the defendant in the principal proceedings. These reports are reviewed in the paragraphs that follow.

On 9 January 2001, at the request of the insurer, the plaintiff was examined by Dr Michael Lim, a consultant occupational physician. He recorded a history of constant severe pain in the neck associated with stiffness and a sensation of intermittent tingling. At that time there were no radicular symptoms recorded. He also recorded constant but less severe pain in the anterior right knee and noted that there had been a few occasions on which the knee had given way.

On physical examination he noted the plaintiff to walk with a slouched posture and with a slight limp. He noted asymmetry of the plaintiff's legs, with a noticeable varus deformity of the right knee, which appeared swollen and effused. He noted ligamentous laxity in the right knee and he stated, without reasons, on the balance of probability, that this laxity was pre-existing and of longstanding rather than acute and recent. It is not clear as to how he arrived at the conclusion that the laxity predated the injury on 8 November 2000. He also noted the presence of patello-femoral osteoarthritis.

Dr Lim was of the opinion that the plaintiff was in need of arthroscopy and quadriceps strengthening exercises for his right knee. The effect of his report was to associate the knee problems with the plaintiff's fall at work on 8 November 2000.

Dr Lim noted the history of delayed onset of neck problems over the days following the fall, and stated that this "would suggest" the neck symptoms were not related to the fall. He raised the possibility of the neck symptoms being psychosomatic. His comments were based on what he described as exaggerated irritability and stiffness in the neck, which he thought was inconsistent with normal radiological appearance of the plaintiff's cervical spine on x-rays taken on 11 December 2000. In view of subsequent radiological abnormalities seen in the plaintiff's neck, Dr Lim's views as to the plaintiff's neck problems, may have to be discounted somewhat.

Dr Lim's report went on to address a schedule of questions that had been put to him by the insurer. In answers to those questions he associated the right knee problems with the incident, but felt that the neck problems were not due to the incident. He suggested temporary work restrictions involving mobility, and recommended the engagement of an injury management consultant for rehabilitation. He stated that impairment would probably be permanent in the right knee, but it was premature to assess this. He reiterated his view that the radiological findings of the cervical spine indicated to him that the plaintiff had no permanent impairment of his neck.

Dr Lim examined the plaintiff again on 7 September 2001 and furnished his report of that examination to the insurer on 12 September 2001.

For his second examination of the plaintiff, Dr Lim apparently reviewed a copy of Exhibit "B". Dr Lim also elicited a history of prior injuries, including an earlier lower back strain years earlier which had led to a workers' compensation claim, an injury to the left shoulder as well as the head injury the plaintiff had described in his evidence.

Dr Lim recorded a history of ongoing neck pain involving throbbing and tingling as well as a feeling of the plaintiff's right arm feeling "dead", as well as a feeling of weakness in the left arm, neck pain extending to both shoulders and a sharp pain at the back of the skull. He also noted a complaint of "feeling dead" on the side of the body when laying on that side at night and a complaint of disturbed sleep. He also recorded a history of improvement in the right knee, but with a remaining feeling of weakness and a tendency for the knee to give way.

As a result of being provided with a copy of MRI report of the plaintiff's cervical spine, Dr Lim changed his earlier opinion about the plaintiff's neck condition. He said the plaintiff had developed cervical spondylosis, a degenerative disc disease of the neck of constitutional origin. He claimed any association and injury to the back of the head and the plaintiff's subsequent neck symptoms, "would be coincidental".

Dr Lim described the plaintiff as being an unconvincing historian. He noted the presence of symptoms indicative of psychological influence on symptoms. He described the relationship between the plaintiff's neck pain and the work injury on 8 November 2000 as being "at best tenuous" and was dubious about the extent of an actual injury to the neck. He described the effect of the plaintiff's knee injury as being a temporary aggravation of pre-existing osteoarthritis, the effect of which had ceased, rendering any ongoing symptoms to being due to underlying degenerative constitutional disorder. He was unconvinced that the plaintiff had any significant impairment of the neck or right knee that incapacitated him for work.

Dr Price - consultant occupational health physician

On 4 June 2001, at the request of the insurer, the plaintiff was examined by Dr ED Price, a consultant occupational physician. Dr Price found it difficult to follow the plaintiff's history and apparently experienced difficulty in obtaining a past occupational history and medical history. Dr Price noted the plaintiff had recently taken 3 Panadeine Forte tablets. The plaintiff thought this may have affected his coherence at the interview.

Dr Price recorded a history of complaint of a severe neck pain radiating from the back of the neck into the temple region. He noted that there was no longer a history of the right knee locking, but that there was a complaint of pain on the inside of that knee.

Dr Price noted the plaintiff had extremely limited movement of the neck and claimed that this was due to embellishment on the part of the plaintiff. He said he found the plaintiff was extremely difficult to examine but nevertheless diagnosed a posterior cervical strain with associated ongoing pain. He also accepted some ongoing symptoms in the right knee post-arthroscopy.

Dr Price attributed even right knee pain to an aggravation of a pre-existing condition which was in the process of settling down following removal of the loose fragment from the knee joint. He thought that a large part of the plaintiff's knee problems were due to a pre-existing derangement of the knee. In expressing that opinion he did not appear to have factored into his analysis the fact that beforehand, the plaintiff did not have such problems. He expressed the view that the plaintiff was not fit for his pre-injury duties, but may be fit for supervisory duties. Remarkably, he expressed the opinion that he felt the plaintiff would not be very co-operative with rehabilitation. He recommended that the plaintiff be investigated because of his prior accident history, his view was that there was embellishment in the plaintiff's presentation, and the fact that in the past the plaintiff had used a different surname, notwithstanding that the reasons for this had been explained as being legitimate.

Dr Price was of the opinion that the plaintiff would regain his pre-accident health status within 6 months.

Dr Price re-examined the plaintiff on 24 July 2002. After reviewing the previous history, including the previous injury history, which he explored in greater detail on this occasion, Dr Price also explored the history of the fall in October 2001 when the plaintiff's right knee gave way from under him, causing him to fall, twist his left ankle, fall on his outstretched left arm and take the force of the fall on the left shoulder.

Dr Price commented upon the apparently minimal treatment the plaintiff had for his left shoulder injury following that fall, but noted the history of cortisone and local anaesthetic injections that were administered by Dr Pacey and Dr Kemp.

Dr Price noted the ongoing history of the right knee occasionally giving way, of ongoing neck pain, with associated sleep disturbance, and of ongoing problems of the left shoulder and left arm.

Dr Price claimed that the restriction in the neck movements appeared embellished, and on close examination of the subluxed acromioclavicular joint, the movements of the left shoulder appeared to him to be purposefully restricted.

Dr Price reiterated his earlier view that the plaintiff was an extremely difficult patient to examine, and noted what he had perceived as inconsistencies in his history. His opinion cast doubt upon the attributability of some of the plaintiff's symptoms to the original injury and to the subsequent fall. He expressed the view that ongoing symptoms were due to pre-existing conditions. He re-visited his previous diagnosis attributing the neck injury to the fall, and sought to inculpate the earlier history of skull fracture as a causative factor, indicating that the neck injury was simply an aggravation, which had settled by the time of his examination. The tenor of his report expressed obvious scepticism of the plaintiff's veracity.

On 21 December 2000, at the request of the solicitor for the defendant in the principal proceedings, the plaintiff was examined by Dr Anthony Smith, a consultant orthopaedic surgeon. Dr Smith saw the plaintiff before the arthroscopy and he noted a complaint of continuing knee pain, albeit with reduced swelling, and neck pain which was reported as being worse than the knee pain.

Dr Smith viewed the same 11 December 2000 x-rays that Dr Price had viewed and described as being normal. In contrast to that view, Dr Smith identified what he described as being neurocentral joint changes at C3/4, C4/5 and C5/6, with a narrowed disc space at C4/5 with the presence of reactive change. He said the x-ray of the right knee suggested no significant arthritis. Dr Smith noted that the plaintiff was favouring his right leg with extension being blocked.

With regard to the plaintiff's complaints of neck problems, Dr Smith was of the opinion the plaintiff had injured his head and neck and as a result had neck pain and headaches. He characterised these as, reasonably, being an aggravation of a pre-existing degenerative condition.

With regard to the plaintiff's complaints of right knee problems, Dr Smith thought there was objective evidence of disability. He saw no indication for arthroscopy notwithstanding the plaintiff's inability to extend his knee. He considered the plaintiff to have been unfit for work at that time.

On 4 October 2001, Dr Smith re-examined the plaintiff. He noted some improvement in the right knee and noted the history of the right knee giving way. He noted a continuing history of ongoing neck pain, which had become worse since the previous examination. Dr Smith thought the plaintiff was fit for work at this time, but he wanted to be given some material from Dr Ostinga regarding the operative findings.

Dr Smith thought that some of the plaintiff's restrictions in movement in the neck and shoulders were un-physiological, and were manufactured. There is a difficulty in understanding that comment. If the complaints of pain were un-physiological that would be suggestive of manufactured symptoms. However, it would appear as a matter of logic, that movement was by its very nature physiological. There is an unexplained and unresolvable dichotomy in this aspect of Mr Smith's report.

Dr Smith expressed an interest in being informed of the neck MRI studies. He thought the plaintiff's behaviour may have had a masking effect on his neck problems. I interpret this to mean either that he is suggesting that the plaintiff was manufacturing symptoms, a comment which is tantamount to an allegation of malingering, for which there is a heavy medical onus of proof, or that the plaintiff has become psychologically affected by his symptoms. These two entities have different credit implications.

Despite acknowledging the Expert Witness Code, Dr Smith has not explained his reasons for suggesting that the plaintiff's weakness in the left upper limb and hypoaesthesia were manufactured.

The most significant part of Dr Smith's second report was his statement that the prognosis was unclear. He expressed the opinion on the balance of probabilities, without indicating what tipped the balance for his analysis, that the plaintiff was probably fit for work. He did not identify the work he had in mind as work for which the plaintiff was fit.

Dr Smith's commentary pre-dated the plaintiff's 18 October 2001 fall. The insurer did not appear to seek a re-examination by Dr Smith before the arbitration hearing to review that issue. Instead, on 12 August 2002, Dr Smith responded to an enquiry from Mr Arnold. That enquiry occurred before the scheduled arbitration hearing but the response was after the settlement.

The content of the enquiry remains unknown. It is not known whether it was verbal or written. It is not clear as to whether Dr Smith had been provided with any further material in order to respond. His reply was in the present tense. His last examination was 10 months earlier. This raises some doubts as to the basis for his comments.

Dr Smith's response reiterated an asserted un-physiological manufactured restriction in the range of the plaintiff's neck movements. He stated there "is nothing objectively wrong with his neck clinically". It is not clear whether he regarded the radiological signs as a clinical matter of significance in this context. He further commented that he could not comment on the knee problems, as he did not know what Dr Ostinga had found at arthroscopy.

The probative value of Dr Smith's opinions has to be determined in the light of these matters.

On 11 April 2002, at the request of the solicitors for the insurer, the plaintiff was examined by Dr Roger Pillemer, a consultant orthopaedic surgeon. Dr Pillemer noted the plaintiff's main complaints to have been in the neck and the left shoulder whereas beforehand, the main problem was mainly with the right knee. Dr Pillemer was not given the benefit of the plaintiff's x-rays of his right knee but the x-rays of the other areas were available for him to review.

With regard to the knee problems, Dr Pillemer felt that the history of the knee condition was fairly typical of a loose body dislodgement. He was of the view that the fall aggravated a longstanding osteochondritis dessicans condition causing a loose fragment to dislodge, and suggested that the fall was a significantly contributing factor to the ongoing symptoms. He suggested further investigation of the right knee for a possible further loose fragment.

With regard to the neck and shoulder problems, Dr Pillemer stated that on an acceptance of the correctness of the history of the fall and the striking of the head, the fall was a significant contributing factor to the ongoing neck symptoms. He felt some of the plaintiff's complaints of widespread discomfort were difficult to account for on his examination. At a trial no doubt this issue would have been explored in some detail in an attempt to reconcile the comment with possible psychological factors on the one hand, or possible exaggeration on the other hand.

Dr Pillemer expressed the opinion that the plaintiff was unfit for any type of employment at the time of his report, mainly due to ongoing neck and upper limb problems, with the prognosis for predicted ongoing problems in the neck, upper left limb and right knee in the medium to long term. He felt that rehabilitation would be of no use at that time. At that stage, he felt that neither the plaintiff's neck nor his right knee conditions, were sufficiently stable for an assessment of permanent impairment.

Dr Pillemer acknowledged the Expert Witness Code.

On 25 March 2002, at the request of the solicitor for the insurer, the plaintiff underwent a functional capacity evaluation conducted by Workhab. The report of that organisation was in segments. One segment, which involved a physiotherapy assessment, was authored by Ms Jenny Young. Another segment, authored by Ms Kerri Allwood, a psychologist, dealt with what was described as an employability assessment.

The assessments were of doubtful value in the principal proceedings for several reasons.

First, at around the time the assessment had been undertaken, Dr Pillemer had expressed the opinion that the plaintiff was unfit for any type of employment due to his ongoing neck and upper limb problems, the prognosis for which was that those problems would continue into the medium to long term. In my view, medical assessments ought to prevail over Workhab type assessments.

Secondly, Dr Pillemer considered that rehabilitation would be of no use to the plaintiff as the plaintiff's condition was not stable. The Workhab assessment therefore appears to have been carried out without a full complement of medical information that indicated rehabilitation would be of no use.

Thirdly, the results of the evaluation were of dubious validity because, as was reported by Ms Young, the plaintiff advised he was unable to fully participate in the functional capacity assessment because he was feeling light-headed and was experiencing elevated pain levels after participating in the employability assessment that had been carried out upon him. That is a matter that was touched upon in the final report from Dr Pacey, and was obviously outside the expertise of the authors of the Workhab report.

Fourthly, the assessments in question made no attempt to assess the plaintiff's ability to work as a spinologist, although the plaintiff's qualifications as a spinologist were known to the authors of the report. Instead, the assessments were restricted to a consideration of the activities of truck driving, general farm duties and machinery operation. That may well have been due to the inadequately limited manner in which the present defendants had particularised the plaintiff's claim for loss of earning capacity. Nevertheless, this was not the only basis upon which the plaintiff's claim for such damages stood to be assessed in the principal proceedings, despite the inadequate particulars.

Fifthly, the formulated opinions proffered as the plaintiff's argued capacity to perform closely supervised work which allowed physical restrictions starting at 3 hours per day for 3 days per week, and leading to 20 hours per week in the areas of customer service, reception, or retail sales "with medical supervision" were inconsistent with the opinion of Dr Pillemer, and seemed to me to lack a sense of practicality by reason of the need for medical supervision. It is difficult to envisage such employment positions being available in the labour market generally.

Medico-legal reports commissioned by solicitors for defendants in these proceedings

The defendants in these proceedings chose to have the plaintiff examined by a paediatric spinal orthopaedic surgeon, Dr JPH Stephen. It was not explained as to why the defendants in these proceedings, did not seek a reassessment by the expert, they had originally chosen, to examine the plaintiff in the principal proceedings, namely Professor Ghabrial.

Dr Stephen examined the plaintiff on 28 February 2009. It was not clear as to why this report was commissioned as it dealt with the plaintiff's medical condition post-settlement. This opinion would obviously have been unavailable at the time of the notional trial. In my view, this fact renders the report to be of no relevance, because any medical assessment of the plaintiff's condition after the notional trial date for the notional assessment would be a matter that would have been dealt with prospectively by means of a discount for potential adverse vicissitudes. In my view it would be impermissible to look back in hindsight in these proceedings to make an assessment on the basis of what might have become known post-2003 in any report of the kind prepared by Dr Stephen.

In any event, insofar as Dr Stephen proffers the opinion that some of the problems related by the plaintiff were of a non-physical nature, and therefore outside his expertise, this is really a further ground of criticism of the preparation undertaken by Bale Boshev in failing to recognise and investigate the plaintiff's non-physical and emotionally oriented complaint that he was experiencing depression that had set in by October 2001.

There is a divergence of views within the medical reports tendered as to aspects of the plaintiff's presentation. This has occurred in the context of a significant case, where no medical witnesses were called to give evidence to assist in the formation of views as to which aspects of the medical evidence were more reliable than others. This has given rise to the usual difficulty and analysis burden in assessing the evidence without explanatory evidence. I have therefore approached the task as best I could without that assistance : Majkic v Bonnano [2008] NSWCA 253 per Bell JA at [26]; Larson v Commissioner for Police [2004] NSWCA 126 per Tobias JA at [48].

In my evaluation of the medical evidence I found the material produced by the treating doctors to be the most useful starting point for the analysis because this provided the factual material that comprised records of the plaintiff's complaints of problems for which he sought treatment, rather than the adversarial context of a medico-legal interview. The material was focussed on treatment of the stated or observed problems rather than on a medico-legal analysis.

In this case, in the context where the aim of the analysis was to discern the nature and the extent of the plaintiff's complaints, I found the correspondence from the treating doctors, the purpose of which was to communicate matters of medical importance to each other regarding the condition of the plaintiff, based on their clinical acumen in the non medico-legal setting, to be a more reliable guide to analysis of contentious matters than the purely medico-legal reports.

In this regard, it struck me that not one of the plaintiff's treating doctors gave the slightest hint in their correspondence that the plaintiff was exaggerating, embellishing or manufacturing his symptoms or purposefully restricting his movements for the purpose of trying to influence the medical examiner to lend support to the case he was seeking to make.

That was in sharp contrast to the reports of Dr Lim, who found the plaintiff to be "an unconvincing historian". He adopted a somewhat sceptical stance when considering the nexus between the plaintiff's fall and his neck complaints, describing the connection as coincidence. I found the reasoning for that view to be insufficiently explained and unpersuasive. Further, Dr Lim based his initial views on x-rays which did not reveal the true picture of the plaintiff's degenerative neck condition, as did the subsequent MRI scans. I found this coincidence explanation to be unconvincing. Dr Lim's second and last report pre-dated the plaintiff's October 2001 fall, so it was of limited utility in any event. I therefore rejected Dr Lim's views where they were in conflict with the views of the treating doctors.

I found the opinions of Dr Price to be unhelpful to the extent that they were in tension with the opinions of the treating doctors because of a concern he had expressed that he had difficulty obtaining a past medical and occupational history from the plaintiff. I therefore found that his views, to the effect that the plaintiff was embellishing his problems, insufficiently explained and open to unresolved doubt because of the difficulties he experienced with taking the plaintiff's history. I also found his views to the effect that the plaintiff would regain his pre-accident health status within 6 months of his examination of 4 June 2001 to be insufficiently explained and somewhat artificial given that he accepted the plaintiff had a posterior cervical strain with ongoing symptoms which other experts accepted to be of ongoing impact.

I also found Dr Price's opinion on the plaintiff's right knee problems difficult to understand insofar as he was of the view that the plaintiff had a pre-existing derangement of that knee, given the absence of prior symptoms of the kind the plaintiff experienced after the accident in question.

In relation to Dr Price's second report which followed the examination on 24 July 2002, Dr Price did not explain the basis for his view that the plaintiff was purposefully restricting movement of the left shoulder at his examination. I therefore considered that opinion to lack probative value as it is incumbent upon a medical examiner to state reasons for what is essentially a credibility based finding if that finding is to have any reliability. Further, I found Dr Price's view that the aggravation to the neck caused by the fall on 18 October 2001 to have settled, to be difficult to reliably co-relate to the difficulty he again experienced on his re-examination of the plaintiff.

Except where Dr Price agreed that the plaintiff had experienced knee, neck and left shoulder injuries which aggravated underlying degenerative conditions, I found his other, insufficiently explained views of limited probative value to the question of the plaintiff's condition and its prognosis, particularly since he experienced difficulties with examining the plaintiff, which I considered to cast doubt upon the clinical basis of his opinions, especially where none of the treating doctors echoed any such difficulty in examining the plaintiff.

I also doubted the clinical basis of Dr Price's views because of his interpretation of the 11 December 2000 x-rays of the plaintiff's neck. He described these as being normal, yet the orthopaedic specialist, Dr Anthony Smith identified neurocentral joint changes to 3 levels of cervical discs and disc narrowing at one of them, with reactive changes. These differences of opinion were not capable of resolution without explanatory oral evidence. I therefore discounted Dr Price's views in favour of the views of the treating doctors who had also recognised the pathology of the neck, evident on x-ray, as I felt their views were more fact-based and therefore more reliable.

In considering the views of Dr Anthony Smith I found them to be of limited probative value for several reasons. First, he did not re-examine the plaintiff after the 18 October 2001 fall, and therefore he did not have the full clinical picture when he wrote his commentary on 12 August 2002. Secondly, I found the logic of his argument that the plaintiff's movements evident at his 4 October 2001 examination, were "un-physiological" difficult to understand, for the reasons I identified when analysing his report.

I found Dr Anthony Smith's views on the plaintiff having manufactured his reported problems, an allegation tantamount to malingering, not only out of kilter with the expressed views of the treating doctors, but insufficiently explained in any event in circumstances where there was a clinical onus to justify such a view. This was particularly so where he also identified possible psychological factors in operation in the plaintiff's presentation. This implied a level of complexity that was not commensurately reflected in Dr Smith's analysis.

In the circumstances I found Dr Anthony Smith's 12 August 2002 opinion that there "is nothing objectively wrong with his neck clinically" to be somewhat confusing, and requiring explanation in view of the earlier imaging findings to which he had referred. The basis of that view was not fully explained as he had not seen the plaintiff in the preceding 10 months before expressing that view and it was not apparent as to what he was given or what he was asked to consider before expressing that view.

I also found Dr Anthony Smith's blanket statement that the plaintiff was probably fit for work at the 4 October 2001 examination, to be of limited value where he did not identify the work categories that he had in mind when he made that comment.

For the foregoing reasons, I preferred the views of the plaintiff's treating doctors to the views of Dr Anthony Smith, where those views were in conflict with their views.

Unlike the opinions of Dr Lim, Dr Price and Dr Anthony Smith, I found the report of Dr Pillemer to be a well reasoned and generally self explanatory opinion, which did not markedly differ from the views of the treating doctors, depending upon an acceptance of the plaintiff's history, which was a fair way of expressing the issue for consideration.

The reservation Dr Pillemer had about some of the plaintiff's widespread discomfort being difficult to explain raised questions about psychological issues which were not explored in the evidence. I do not consider it to be fair to make a credit finding about the extent of the plaintiff's complaints in the absence of such evidence in the specific circumstances of this case where, whilst they acted for the plaintiff, the defendants did not follow up upon that issue or seek to elicit further information from the plaintiff on such matters as his complaint of depression.

Otherwise, I considered Dr Pillermer's comments concerning the ongoing unstable nature of the plaintiff's problems with his neck, upper limb, and right knee for assessment purposes as at 1 April 2002 to be a useful and rational confirmation of the opinions of the treating doctors.

For the reasons I have explained in analysing the Workhab report, I found it to be of no utility in making my assessment because of the opinion of Dr Pillemer that rehabilitation would be of no use at that time, as the plaintiff was, in his opinion, unfit for any type of employment.

Following my evaluation of the foregoing reports and opinions I found myself persuaded of the inherent reasonableness of the analyses put forward by Professor Ghabrial, Dr Pacey, Dr Kuru, Dr Kemp, Dr Roger Smith, and with one reservation, Dr Ostinga, as to the reasonableness of their views as to their respective diagnoses of the nature and extent of the plaintiff's injuries and his ongoing disabilities. I therefore found my self-preferring their views to those of Dr Lim, Dr Price and Dr Anthony Smith where there was a conflict of views amongst these doctors.

I found the opinions expressed by Professor Ghabrial, Dr Pacey, Dr Kuru and Dr Kemp to be impressive, balanced, and highly likely to prevail at a contested trial of the principal proceedings in 2003. I thought it was also significant that their opinions were to a substantive extent supported by Dr Pillemer. I found the opinions in these reports concerning the restrictions on the plaintiff's activities, including work activities, to be rationally based and compelling acceptance over the contrary views of Dr Lim, Dr Price and Dr Anthony Smith. 640. The reservation I had concerning the opinion of Dr Ostinga was his opinion that the injury on 8 November 2000 was not to be blamed for the plaintiff's dislodged loose body of cartilage in the right knee joint. In my view, at a trial in 2003, on a preponderance of the medical evidence, particularly in light of the clarifying correspondence with Dr Ostinga, I consider a finding of no causal connection between the injury and the clinical finding on arthroscopy, would have been an extremely unlikely outcome following conventional legal analysis.

In the result of my analysis of the medical evidence, I find that the preponderance of the medical evidence is wholly supportive of the case the plaintiff would have sought to make at a trial of the principal proceedings in 2003. The extent of that support would have reasonably based findings for significant damages for non-economic loss and for economic loss.

Identification of plaintiff's initial injuries sustained on 8 November 2000

Following my analysis of the evidence, I set out my findings identifying the specific injuries the plaintiff suffered in the fall at work on 8 November 2000.

I find that when the plaintiff fell onto the wheat rake on 8 November 2000, he severely twisted his right knee. When he did so, he dislodged a fragment of cartilage tissue, which had become detached and loosened within that knee due to an underlying degenerative condition known as osteochrondral dessicans. I find this dislodgment most probably occurred when the plaintiff experienced an excruciatingly painful snapping sensation in that knee at the time he twisted it in the course of his fall, thereby causing an aggravation of the underlying degenerative knee condition. This resulted in pain, locking of the knee and localised swelling.

I find that beforehand, the plaintiff's right knee was not causing him any significant difficulties with his mobility, agility or dexterity. I base this finding on my acceptance of the plaintiff's evidence.

I have had regard to the entry in Dr Smith's clinical notes to the effect the plaintiff had complained of weakness in both knees on 29 November 1999. In my view, given the isolated occasion of that complaint and its distance in time from the 8 November 2000 injury, and given the absence of any report of ongoing problems of that nature after the plaintiff had received medical reassurance from Dr Smith about those symptoms, it leads me to the view that the knee problems experienced by the plaintiff in 1999 were of a transient and inconsequential nature. I consider this was most likely the case especially since the medical opinions do not proffer a view to the contrary.

I find that when the plaintiff fell, he struck the left side of his head on a rock, which was located on the ground nearby. I find that in doing so he suffered a laceration to the left side of his head. I find that at this time he also received a jarring injury to his cervical spine, which affected the soft tissues comprising the muscles, ligaments and discs of his neck. I find that when the plaintiff fell, he jarred his left shoulder. The result of these injuries was that the plaintiff developed headaches, neck and upper thoracic pain.

I find that the plaintiff had a pre-existing degenerative condition of his cervical spine, as was subsequently identified on CT and MRI scanning of his neck structures. Beforehand, these degenerative changes were quiescent, and were not causing him difficulties. I find that as a result of the jarring from the fall, these underlying pre-existing degenerative changes were asymptomatic, but were rendered symptomatic by the trauma of the fall.

I find that when the plaintiff fell, he sustained a jarring injury to his left shoulder. This caused him to subsequently experience pain and discomfort in the left shoulder.

The x-ray evidence reveals the plaintiff had previously injured his left shoulder some years beforehand, at which time he probably suffered a dislocation of his left acromioclavicular joint which, had then settled down to become symptom free, and had ceased to cause him difficulties for some considerable time before he suffered the fall at work on 8 November 2000.

Summary of treatment and events between 8 November 2000 - 18 October 2001

After resting from the immediate effects of his injury, the plaintiff travelled by train from his brother's farm at Moree to Newcastle. I draw no adverse inferences concerning the severity of the injuries suffered by the plaintiff from the fact that he undertook what was referred to in Mr Arnold's materials as a 10 hour train journey, to seek out treatment. It appears that owing to the intensity of the harvesting activities on the farm, no-one was available to drive the plaintiff home to seek treatment.

I accept the plaintiff's evidence that in the initial days following the fall on 8 November 2000, his right knee was the principal focus of his pain and discomfort. I accept that in that period the plaintiff was probably less concerned about his other injuries because of his focus on the right knee problems he was experiencing. I consider that in these events the initial effects of those other injuries were probably masked. I find however, that he was experiencing ongoing problems with his right, knee, his neck, left shoulder and associated headaches.

Following the plaintiff's consultation with Dr Smith, he was referred to physiotherapy and to specialists for assessment and treatment of these problems. The right knee arthroscopy recommended by Dr Smith was delayed on account of the plaintiff's neck problems. At operation, Dr Ostinga found objective evidence of knee disability. After the loose fragment was removed from the plaintiff's knee at arthroscopy, he was nevertheless left with recurrent difficulties, with the knee occasionally giving way on him when he walked.

Between early 2001 and October 2001, the plaintiff remained under medical care at the referral of Dr Smith. Dr Kuru diagnosed an aggravation of underlying degenerative changes in the cervical spine. I find that the plaintiff continued to be affected by this, with resultant neck pain headaches, and pain in the shoulders.

In this period the plaintiff was also affected by ligament contraction problems of the right knee due to an earlier prolonged flexion position before the knee was surgically unlocked. I find this was as a result of the injury on 8 November 2000.

In the period following the arthroscopy on 12 March 2001 and October 2001, the plaintiff's right knee was improving to a degree, although he still had recurrent episodes of the knee giving way under him. In that period, the plaintiff's left shoulder problems were improving, but his neck pain was not improving, and he remained unfit for work.

Material aggravation of injuries caused by fall on 18 October 2001

I find that on 18 October 2001, whilst the plaintiff was in the course of walking on uneven ground, his right knee gave way from underneath him, causing him to fall onto his outstretched left arm and hand.

I find that in these events, his left shoulder was jarred when it took the force of his fall. I also find that when he fell at this time, he also injured his left ankle.

I find that the fall on 18 October 2001 caused significant and material aggravation injuries to the plaintiff's already injured neck and left shoulder. The left shoulder had already been injured years beforehand, probably by a subluxation of the acromioclavicular joint, however, the fall on 18 October 2001 rendered the problem intractably symptomatic. The effect of these aggravation injuries was to perpetuate the ongoing complaints of pain in these areas.

Despite exercises and physiotherapy the plaintiff's neck and should problems continued to trouble him. The injection of steroids and local anaesthetic into his left shoulder did not alleviate the problems he continued to experience with that shoulder.

When the plaintiff approached the arbitration hearing in August 2002, he continued to experience disability in the described areas, with the exception of the ankle and wrist injuries, which had by then resolved.

I accept the evidence of the plaintiff and the opinions of Professor Ghabrial, Dr Pacey and Dr Kemp as to the nature of the plaintiff's ongoing problems. I reject the suggestion that he had embellished his symptoms or that he had manufactured them.

I find that the plaintiff was left with significant ongoing neck pain, discomfort and restriction of movement with associated neck muscle spasm. He was also affected by associated headaches and pain radiating to the base of the skull and to his temples. He also had pain at the top of his shoulders. These pains affected both of his upper limbs and to a degree, also affected his sensation in those areas.

I also find that the plaintiff continued to be affected by recurrent problems with his right knee due to the original injury.

Significantly, the plaintiff's left shoulder was badly affected, with ongoing pain, discomfort, restriction of movement and altered sensation in the left upper limb. The left shoulder pain interfered with his sleeping, and he woke frequently at night due to pain after laying on his left side.

I accept the opinions of Professor Ghabrial, Dr Kemp and Dr Pacey as to the very significant physical activity and work restrictions they described, and to which the plaintiff was subject as a result of his injuries. In my view, these work restrictions indicated that the plaintiff was very substantially impaired in his capacity to fulfil a wide range of physical tasks in paid employment, such that any residual earning capacity for light work must be assumed to have been irregular, intermittent and unpredictable. This was so because of the ongoing nature of his complaints together with his need to take strong pain killing medication that affected his focus, and also because of interference with his sleeping patterns.

I also accept that as a result of his injuries and the resultant residual disabilities, the plaintiff has found that he was no longer able to carry out all of the physical tasks required by the practise of spinology, as that profession required him to have the full and unrestricted use of both shoulders, and he had become significantly impaired in that regard.

As a consequence of my analysis of the medical evidence and the evidence of the plaintiff, I do not accept the submission made by the defendants that plaintiff's problems were largely related to the underlying problems that pre-existed the injuries in question. It is for the defendants to show that the plaintiff's underlying injuries would have caused him incapacity, particularly for work, in any event, either in whole or in material part. The defendants have not discharged that evidentiary burden with acceptable medical evidence that would reasonably lead to such a conclusion: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

I find that all of the matters complained of by the plaintiff have been caused by, or materially contributed to by the ongoing effects of the injuries sustained on 8 November 2000, and as aggravated by the injuries sustained on 18 October 2001.

I also find that these matters had, by 2001, taken a significant emotional toll on the plaintiff, and had caused him to become depressed. The fact that the defendants failed to investigate that matter, and had failed to document it by obtaining expert medical evidence in the principal proceedings, does not preclude the plaintiff's depression from being taken into account in a notional assessment in these proceedings.

In my view, the court analysing the available evidence in 2003, would most probably have come to the same or substantially similar conclusions in the principal proceedings.

In my assessment, the effects of the plaintiff's injuries and the resultant disabilities would have entitled the plaintiff to a significant award for non-economic and economic damages in the principal proceedings.

Issue 9 - Probable damages assessment in the principal proceedings

A consideration of Issue 9 requires first, an evaluation of the likely timing of a final judgment in the principal proceedings, and secondly, the identification of the likely components of a damages award in favour of the plaintiff. In this regard, a variety of factors arise. I set out my consideration of these factors in the paragraphs that follow.

In order to reach my conclusions as to the parameters of a likely assessment of damages in the principal proceedings, a review of the particulars of damages and aspects of the medical evidence is required.

Having reached the conclusion that the principal proceedings were inadequately prepared and inadequately particularised, I consider that the need to achieve a balance of justice between the parties requires that a notional damages assessment of those proceedings should proceed on the basis that the particulars of claim were truly reflective of the plaintiff's situation at the time of the notional trial. I believe this to be the appropriate approach because the plaintiff was entitled to expect that his case would be prepared according to the standards of reasonable skill and care. In my view that standard required that the case be particularised to accurately reflect his situation at the time an assessment took place.

In approaching that task, I have sought to apply my consideration of damages according to what would have been a reasonable state of particularisation at the time, guided by authority : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 per Hayne J at [105].

In doing so, I have recognized the need to avoid the application of a hindsight standard driven by a counsel of perfection, as that would be an inappropriate approach. In this regard, notwithstanding my findings that the present defendants engaged in a minimal level of medico-legal investigation of the case, without statements from the plaintiff and other witnesses, and without reflecting the plaintiff's situation in the particulars, I also recognize that amongst solicitors who acted for plaintiffs at the relevant time, there was a range of approaches taken to investigating a case. Some solicitors favoured reliance on treating doctors to provide medico-legal reports rather than engaging independent experts, depending upon the size of the case.

That said, in my view, adherence to basic standards of reasonable preparation required that the filed particulars of damage reflected the fact that in the subject accident the plaintiff sustained injuries to his right knee, head, neck and left shoulder, including the aggravation injuries sustained on 18 October 2001.

The filed particulars in this case did not do so. The particulars omitted to claim injury to the left side of the head and to the left shoulder. Further, the particulars filed made no claim concerning the plaintiff's inability to work in his profession of spinology. The filed particulars completely omitted any reference to ongoing physical and emotional disabilities that could readily have been formulated from an analysis of the medical reports and from speaking with the plaintiff to obtain his instructions, either in the form of a simple interview, or more formally, by taking a detailed statement from him.

Further, ordinary standards of reasonable care in the preparation of a personal injury damages case for a hearing indicate that when Bale Boshev received the report of Professor Ghabrial, which was dated 14 January 2002, that the report would have been read by the solicitor responsible for the preparation of the matter. On doing so, that solicitor would have recognized from the summarised history in the report, that the plaintiff had suffered "another fall" resulting in jarring to his left shoulder, aggravating the left shoulder injury which had previously settled down. A simple investigation of the matter would have revealed that the plaintiff's right knee had given way on him, causing him to fall and suffer either a subluxation of the left acromio-clavicular joint with associated widening of the joint, which an ultrasound examination suggested also involved a bony avulsion, or at least an aggravation of an underlying condition to that effect.

The fact of this further injury ought to have been known to Mr Schipp because it was not only referred to in general terms in the report of Professor Ghabrial, but the subluxation and the avulsion injury were reported upon by Dr Albert Guttmann in his radiology report dated 12 December 2001, a copy of which had been provided to Dr Smith, the plaintiff's treating general practitioner.

Mr Schipp sent a copy of Dr Guttmann's report to Mr Kirby under cover of a letter dated 15 December 2001: Exhibit "1" page 354. That letter provided Mr Kirby with no background information or factual context whatsoever, and simply asked Mr Kirby to advise on whether the report should be served on the defendant. Unsurprisingly, Mr Kirby's letter of advice in reply, which was dated 18 January 2002, and which is to be found at Exhibit "1" page 356, advised against service of the report in the following terms : " I don't think that the report could be served as he [Dr Guttmann] obviously attributes your client's problems with his left shoulder to an old injury".

Dr Guttmann's report stated that he was uncertain as to whether the subluxation injury was the result of a recent or old injury, probably the latter. Dr Guttmann associated the subluxation with pain in the region and commented that bone density around the area indicated previous trauma. Clearly, the issue warranted some level of inquiry of the plaintiff. It is plain that Mr Schipp made no attempt to investigate the circumstances to consider whether this material aggravation injury could be linked to the original injury, as it clearly was.

In these circumstances it was unsurprising that Mr Kirby was misled into thinking that this report was unhelpful. It was naïve of Mr Schipp to think that this report would not find its way into the hands of the defendant, as it ultimately did, at least in these proceedings, because a copy of it had been sent to the general practitioner, and those types of records are, as a matter of course, subpoenaed by defendants in personal injury litigation.

It is surprising that Mr Kirby was not given the information on the fall, as the plaintiff had written to Mr Schipp on 14 November 2001 to inform him of it and its effect on him when he told Mr Schipp of his depression "setting in" : Exhibit "1" p 351.

Instead of simply sending Dr Guttmann's report to counsel for consideration in a contextual vacuum, a prudent solicitor acting reasonably in the interests of his client ought to have paused, reflected on the significance of the report in conjunction with the original knee injury, the relationship between that event and the subsequent fall due to knee instability from the original injury, and sought further instructions from the client, and further documentation by evidence, including clarification of the medical evidence, as he had done on 28 May 2001 in the case of an earlier ambiguous comment made by Dr Ostinga concerning the aetiology of the loose fragment of cartilage that had been surgically removed from the plaintiff's right knee : Exhibit "1" p 66.

Such evidence was readily available. It was readily obtainable from the plaintiff himself. Proof of this fact comes from the report of Dr Stephen Kemp dated 10 July 2002. Dr Pacey referred the plaintiff to Dr Kemp. Dr Kemp's report, which is copied at Exhibit "1" pp 113-114, records a summary of the plaintiff's history in the following terms : "In October of last year he tells me that his right knee gave way whilst walking on uneven ground. He fell again and developed recurrent pain in the left shoulder and an aggravation of his neck condition. Subsequently an acromioclavicular joint dislocation was diagnosed. He was referred for physiotherapy and received a bit later on a depot steroid injection into the acromioclavicular joint which resulted in only mild improvement in his symptoms.

At the present time Howard complains of ongoing pain at rest over the anterior and superior aspects of the left shoulder. He reports pain with lifting even with the elbow at the side and since the depot steroid injection has lost much of his sharp pain. He can't rely on that side and is waking regularly at least five times. Overall he feels about 50% of his trouble is coming from the shoulder and 50% from the neck."

Dr Kemp recognized the problem to be "a very difficult one". He saw no short-term solution and was reluctant to offer surgery at that stage. His impression was that although the pain was reasonably well localised and he ought to be able to help the plaintiff, the profuse irritability of the area and the progress over the last couple of years placed the plaintiff in a group of patients where caution was necessary. His reference to progress over the last couple of years was an obvious reference to the course of the plaintiff's left shoulder and neck problems from the original fall in the subject accident.

Clearly, the foregoing matters were not considered by Mr Schipp or particularised. Clearly, they should have been. The fact that they were not was the failure of Mr Schipp to consider the problem, investigate it and decide how it should be dealt with in the context of the litigation.

In these circumstances I consider that it would be manifestly unfair to the plaintiff, and unjustly advantageous to the defendants in these proceedings, to assess damages on the basis of the inadequate particularisation of the original claim. In assessing damages, I propose to take the above matters into account, including reasonable inferences available from such matters.

Accordingly, notwithstanding the inadequate state of the filed particulars of damages claim at the time of the arbitration hearing, I consider that when notionally assessing damages in the principal proceedings, I should have regard to the following: (a) When the plaintiff fell on 8 November 2000, he suffered a twisting injury to his right knee. This caused pain, swelling and difficulty with mobility;

(b) When the plaintiff fell he also struck the left side of his head on a rock on the ground, this caused a laceration to the head and he also injured his neck. As a result he suffered headaches;

(c) After consulting his general practitioner and undergoing investigations, he underwent orthopaedic surgery for removal of a loose fragment of cartilage from his right knee, such fragment having been dislodged from its position by the trauma of the fall. Though the evidence suggests that the plaintiff had a pre-existing condition of his right knee involving degeneration of the cartilage, it was asymptomatic but had been rendered symptomatic by the trauma. The defendants have failed to demonstrate that the pre-existing problems would have caused difficulty and the need for surgery at some future time in any event : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164;

(d) In the period between the time of his injury on 8 November 2000 and 18 October 2001, the plaintiff: (i) continued to have problems with his right knee which on occasions gave way from under him causing him to fall;

(ii) continued to have headaches and neck pain for which he received physiotherapy from time to time, the neck pain being due to aggravation of underlying degenerative changes at multiple levels in the cervical spine which had previously been asymptomatic;

(iii) had problems with his injured left shoulder which gradually lessened in intensity;

(iv) was unable to undertake any work involving lifting or carrying or driving or sitting for prolonged periods;

(v) was unable to return to his work as a spinologist; (e) On 18 October 2001, as a consequence of the plaintiff's right knee giving way from under him, while walking on uneven ground, he fell and either dislocated or subluxed his left acromioclavicular joint, also involving a bony avulsion with widening of that joint or aggravated an earlier injury of that kind. The effect of this further injury on the plaintiff has been: (i) aggravation of the earlier left shoulder injury which had settled down before this fall, the effect of the aggravation being to cause ongoing pain and discomfort in the left shoulder, including causing difficulty sleeping with frequent waking at night;

(ii) material aggravation of the effects of the underlying neck injury occasioned by the fall of 8 November 2000;

(iii) a continuing inability to pursue significant work involving physical strength and dexterity in a range of manual occupations, including the work of a spinologist, which required unrestricted use of the shoulders;

(iv) he has suffered anxiety and depression, as particularised by Mr Schipp in a letter to the defendant dated 19 October 2001 : Exhibit "1" p 343, para 4. (f) Published rates of average weekly earnings as a guide to the assessment of the claim for past and future loss of earning capacity.

Whilst it seems reasonable to assume that the foregoing matters would have reasonably given rise to a claim for past and future domestic assistance on account of the nature of the plaintiff's physical disabilities, notwithstanding that view, absent any evidence of such matters I will not speculate as to how the plaintiff's disabilities may have given rise to such potential claims, noting that there are thresholds that are required to be met before such damages can be awarded. The evidence does not allow a reasoned analysis of such issues.

In the principal proceedings the component of the plaintiff's claim for damages for future out-of-pocket expenses were claimed over the remainder of his lifetime. Accordingly, although it is a relatively small issue, it is necessary to consider what the plaintiff's probable life span would have been in 2002, when the prevailing practice was to use the standard life tables for assessment of future losses estimated over a lifetime, because the prospective tables had not been authoritatively sanctioned : Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131.

In 2002, the 1999 edition of the life tables would have been current and would have been the source relied upon. This would have revealed a 45 year old male to have an average life span of 38.23 years, which I will round down to 38 years for the purposes of calculation : Australian Bureau of Statistics - Deaths, Australia 1997-1999. The 5 per cent actuarial multiplier for projection of monetary losses over 38 years is 902.0.

Notional assessment of damages in the principal proceedings

A total of 8 claimed heads of damage would have required assessment in the principal proceedings. I have set out my assessment of these claims in the paragraphs that follow, incorporating the respective submissions of the parties, together with my overall assessment of what damages the court would most likely have awarded the plaintiff in those proceedings, in an assessment in 2003.

At the time of the plaintiff's injury which gave rise to the principal proceedings, the maximum amount awardable for non-economic loss pursuant to s 151G of the Workers' Compensation Act 1987 ["WC Act"] was $246,900. The parties made disparate submissions as to the appropriate award of damages for non-economic loss.

On behalf of the plaintiff, it was submitted that an appropriate award of damages for non-economic loss at the time of the notional trial would have been for a sum representing 30 per cent of a most extreme case ["MEC"] according to the framework of s 151G of the WC Act. This is the equivalent of $74,070.

On behalf of the defendant, it was submitted that the sum to be assessed for non-economic loss was in the range 20 per cent to 25 per cent of a MEC. This is the equivalent of $49,380 and $61,725 for these respective percentage assessments. It appears this range was adopted from the advice which Mr Arnold gave his insurer client on 25 June 2002 : Exhibit "1" p 453.

In order to assess these submissions, and for me to reach my own concluded view of what was likely to have been the terms of a monetary assessment by the court in 2003, it is necessary to have regard to the nature of the plaintiff's initial injuries, the treatment received and the course these problems took, including material aggravations, up until the time of the notional assessment in 2003.

The evidence for these matters must predate the notional assessment. Events occurring afterwards, whether these had a positive or negative impact on the plaintiff, would have been accounted for in the notional assessment by operation of the discount to be applied for potential vicissitudes : Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541.

In summary, the plaintiff suffered a severe and painful twisting injury to his right knee when he fell. He also injured his left shoulder, his neck and suffered a related laceration to the left side of the head, with associated headaches. After undergoing surgical removal of a loose fragment of cartilage in the right knee, which most likely became dislodged as a result of the fall, probably when the plaintiff felt the snapping sensation in the knee, the plaintiff was left with an instability of the knee which caused him to suffer falls from time to time. In addition, he continued to suffer from neck pain and headaches. He also had continuing left shoulder pain which was settling gradually.

I must also have regard to the fact that in October 2001, as a result of one such fall, the plaintiff significantly aggravated his neck and left shoulder condition. The result of this has left the plaintiff with significant restrictions in his left shoulder and in the use of his left arm. This prevents him from doing the physical work involved in the practise of spinology, as well as a wide range of other occupations requiring physical strength and dexterity, and the ability to sit for prolonged periods. He has ongoing neck, left shoulder and right knee problems. In 2002/2003 these problems had not abated despite physiotherapy, cortisone injections to the left shoulder, and exercises aimed at alleviating the problems.

At the age of 45 in 2002, and therefore I also infer in 2003, despite conservative treatment, the plaintiff was left with significant physical restrictions that continued to adversely affect him with regard to ongoing pain, suffering, loss of enjoyment and loss of the amenity of his life, including the effects of resultant anxiety and depression.

The plaintiff's experience of depression, which was noted by him in his letter dated 14 November 2001 addressed to Mr Schipp and received by him 4 days later, appears not to have been acted upon or investigated for the purpose of obtaining and presenting evidence in the proceedings. In these circumstances I consider that the onset of depression in the plaintiff should also be included in a consideration of his entitlement to damages for non-economic loss : Exhibit "1" p 351. In this regard, the plaintiff should not be penalised in these proceedings for such an omission in the principal proceedings.

I have already undertaken a detailed review of the medical evidence with regard to these matters at paragraphs [516] to [671] of my judgment.

In the light of these matters, I consider that the submissions made by the parties concerning the appropriate award for a percentage of a MEC have had insufficient regard to the full extent of the plaintiff's situation, particularly the effects of the October 2001 aggravation. I consider that aggravation to have had a significantly material and adverse effect on the plaintiff's condition. I consider that in 2003, properly ventilated in the evidence, the court would have awarded significantly more damages for non-economic loss than the respective levels contended for by either party in these proceedings. In coming to this view, I have considered the range of MEC figures identified by Mr Kirby in his notes of 1 August 2001. In my view, those figures should not influence my assessment because Mr Kirby was briefed with insufficient information to form a concluded view of the aggravating effects on the plaintiff, of the fall he suffered in October 2001.

In my view, these considerations indicate that in 2003, the court would most probably have assessed the plaintiff's entitlement to damages for non-economic loss in the range 35 per cent to 40 per cent of a MEC. In this context, it has to be recognised that a range of potential trial judges may have approached the matter of what constituted the assessment of a sound discretionary judgment on this issue from slightly differing perspectives. It is for this reason that I make my assessment of the likely award for non-economic loss at a trial in this court in 2003 towards the middle of the range that I have identified, namely 37 per cent.

Accordingly, This indicates that the appropriate award for non-economic loss that would probably have been awarded to the plaintiff in the principal proceedings ought to have been in the amount of $91,353.

On behalf of the plaintiff, it was submitted that an appropriate award for past loss of earning capacity in this case would have been for a sum in the range between $91,949 net to $120,000 net.

That submission was grounded upon a number of propositions. First, uninjured, if the plaintiff had been unsuccessful in his spinology practice, he had the option of working on his brother's farm or in similar employment from which he could have derived income at the rate of $1210 per week gross. Secondly, as a newly qualified spinologist, he had the potential to derive gross earnings of at least between $40,000 and $50,000 per annum on what appeared to be low overhead expenses. Thirdly, as a qualified spinologist, as was explained by his brother, Mr Anthony Tremain, the plaintiff had a potential to earn an income of $100,000 in his first full year as a spinologist, with the potential to later earn up to $250,000 per year, if not more. Fourthly, simply proceeding on the rates paid to the plaintiff whilst in the employ of his brother's company, M & R Tremain Pty Ltd, it would indicate that the plaintiff would have generated a net income of the order of $91,949 in the 2 years between when he was injured and the time of the notional arbitration hearing.

On behalf of the plaintiff, it was submitted that on the balance of probabilities, in 2002, or 2003, the court would have taken the view that if he had not been injured, the plaintiff would probably have returned to his work in building up his relatively new practice in spinology within a month of the time of his injury, noting that he only worked on the farm for a relatively short time in order to help his brother out when he urgently needed some additional labour at harvest time, with the potential to extend this as there was work to be had and done on the farm. On this assumption, it was submitted that uninjured, the plaintiff would have only lost 1 month of income whilst in the employ of M & R Tremain Pty Ltd, in the amount of $4840, and 23 months of lost income as a spinologist in the amount of $100,000 per annum, or $191,666.67 in total, indicating a gross loss of income of $196,506.67. This submitted result was the equivalent of $129,338 net.

The plaintiff submitted that the sum of $129,338.67 should be rounded down to $120,000 net, to reflect the possibility that the farm work would have been phased out and the spinology practice income would have phased in over a slightly longer time than one month.

The plaintiff submitted that on either of these scenarios, assuming an arbitration hearing on 1 August 2002 did not result in the conclusion of the principal proceedings in 2002, at a later rehearing, the court would have taken either of the two submitted approaches in assessing the plaintiff's entitlement to an award of damages for past economic loss in the principal proceedings. On behalf of the plaintiff, it was submitted this should have resulted in an award in favour of the plaintiff of either $91,949.30 net or $120,000 net.

I will return to an analysis of the plaintiff's submissions after identifying and analysing the submissions made on behalf of the defendants.

On behalf of the defendants in these proceedings, it was submitted that the appropriate range of damages for past economic loss was likely to be in the range that either no damages at all would be awarded for past economic loss, based on the assumption that the plaintiff would not have met the threshold for assessment of entitlement to such damages, as was required by s 66 of the WC Act, or alternatively, an assessment and award of a rounded sum of $25,000 on account of this head of damage.

In my view, the nature and extent of his injuries and his resultant disabilities requires a rejection of the submission based on section 66 of the WC Act. Further, in my view, the sum of $25,000 that was conceded by the defendants was arrived at on a selective and incomplete analysis of the applicable factors relevant to an assessment of damages for past economic loss at a trial in this court in 2002 or in 2003.

The defendants sought to justify the submitted amount of $25,000 by conceding an economic loss of $15,000 from the time of the plaintiff's injury until Mr Mathew Tremain's company ceased trading in May 2002, and then allowing an additional amount of $5000 per year for each of the two following years, until the approximate time of the notional arbitration hearing on 1 August 2002.

In my view, the approach taken by the defendants to the assessment of the claim for past economic loss is artificial, and unrealistic in that it pays no adequate regard for the plaintiff's loss of his pre-injury capacity to work which, absent his injury, was unrestricted. In contrast, since his injury, on the plaintiff's evidence which I accept, and which is supported by the evidence of Dr Kemp and Professor Ghabrial, the plaintiff has suffered a considerable impairment in his earning capacity.

In this regard, on 14 January 2002, Professor Ghabrial stated that the plaintiff was unfit for activities involving heavy lifting, excessive bending and twisting on a permanent basis, as well as activities involving excessive use of the upper limbs above shoulder level. He has been assessed to have permanent impediments of his neck, upper limbs, and the lower right limb. The percentages of impairment are not relevant to an assessment of loss of earnings but, of themselves are significant, being respectively, 40 per cent for the neck, 10 per cent for the right upper limb, 15 per cent for the left upper limb, 5 per cent for the left lower limb. Further, the 10 July 2002 report of Dr Kemp is not suggestive of there being a significant residual earning capacity.

In my view, the approach taken by the defendants to this issue wrongly assumes that the plaintiff's earning capacity if uninjured, would have taken a dramatic downturn after Mr Mathew Tremain's company ceased to trade in May 2002. In making that assumption, the submission ignores the realities of the labour market, the portability within the labour market of the plaintiff's capacity to earn, and the accepted principles of assessment of loss of capacity in such circumstances where, uninjured, earning capacity was unrestricted and had a value.

In contrast, in his injured state, as confirmed by the opinion of Professor Ghabrial, the plaintiff's earning capacity has been severely restricted. In this regard I have accepted the opinion of Professor Ghabrial.

In my view, this finding is also supported by the attitude taken by the defendant's insurer in the principal proceedings. Although it was in possession of reports that arguably did not support the plaintiff's claim for loss of earning capacity being referable to the subject accident, the insurer took a pragmatic view of the likelihood of the opinions within those reports being accepted and continued to pay the plaintiff his entitlements to workers' compensation benefits. I infer from those circumstances that if the plaintiff did in fact continue to have an inability to work up until the time of the notional trial, and that such inability amounted to a loss of earning capacity that was productive financial loss requiring assessment in damages.

I therefore reject the submission made on behalf of the defendants on this issue. In reaching this conclusion, I am confirmed in my view, having regard to the manner in which the plaintiff's claim for past loss of earning capacity was particularised by the defendant in the principal proceedings. In this regard, I consider that the plaintiff's claim for an inability to work after his injury was correctly framed in the particulars, subject to the omission to claim loss of earning capacity as a spinologist. Remarkably, the position taken by the defendants in these proceedings is somewhat discordant with the approach formerly taken by them on the plaintiff's behalf.

Having determined that the approach to the assessment of this head of damage as was submitted by the defendants in these proceedings is of no assistance on the issue, I return to the analysis of the submissions made on behalf of the plaintiff.

A notional assessment fixed in time as at 31 March 2003 to include award of damages for past loss of earnings is a difficult exercise in this case because at that time the plaintiff had not had sufficient time to settle down into the practise of his new profession as a spinologist. Accordingly, I consider it would be unfair to the plaintiff to assess this head of damage on the basis only of his prior work history, without regard to his potential to earn very considerable sums as a spinologist. Also, subject to a qualification to which I shall refer, I consider it could be unfair to the defendants to have to bear the burden of an assessment of what might be very considerable damages for the plaintiff's loss of potentially considerable earnings as a spinologist.

At the time of the scheduled arbitration hearing, and for a significant period beforehand, the defendants were aware of the plaintiff's profession of spinology : Exhibit "1" p 431. Notwithstanding this fact, a claim for loss of earning capacity based on the earnings the plaintiff could have derived from the practise of spinology had not been particularised on the plaintiff's behalf by the defendants. I accept that before the scheduled arbitration hearing, the plaintiff told the defendants about his spinology practise, and I find that the defendants ought to have explored this with the plaintiff, and should have particularised the plaintiff's inability to pursue that line of work in the principal proceedings.

In my view, assuming that an arbitration hearing would not have satisfied the monetary expectations of the plaintiff, and that a rehearing would have occurred before the court, which I have found would have been the case, a duly diligent preparation for a trial by counsel and solicitors, with due time being spent in conference preparing the plaintiff to give evidence, would have revealed the potential claim for loss of income from the practise of spinology. In my view, assuming a standard of reasonable practice on the part of the plaintiff's solicitor, which I must do for these purposes, this would have led the present defendants to marshal the evidence of Mr Anthony Tremain, and other supporting evidence that would have demonstrated a claim along the lines of the evidence given by Mr Anthony Tremain in these proceedings, revealing a substantial potential claim for loss of earning capacity.

A difficulty with assessing the plaintiff's damages on the basis of loss of earnings from the practise of spinology, was not only that he had been in practise for a relatively short time, but significantly, such a claim had not been particularised in the particulars of claim filed in court, and had not been notified to the defendant in the principal proceedings by correspondence, as it should have been.

In my view, such difficulty would and should not stand in the way of an assessment in these proceedings. I consider this to be so because at the very least, in the principal proceedings, this claim would have been revealed during the necessary preparatory conferences the plaintiff would have had with his solicitors and with his counsel.

Once such a claim had been revealed, the obligation of the plaintiff's solicitor was to seek a timely amendment to the particulars to reflect such a claim. A timely amendment to the particulars would not have required leave. It would simply have required correspondence to the defendant enclosing an amended document to incorporate and raise such a claim.

I do not ignore the reality that even if an application for amendment had been left to the last moment, the court would not have shut out such a claim on an application of the principles that applied in 2003 concerning applications to amend the particulars of claim : Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146. In my view, as the law was applied in 2003, assuming the worst, and that an application to amend was left to be made at the eleventh hour, the court would nevertheless have granted such a request, in order to ensure the plaintiff's claim was justly determined.

In my view, the contrary position should not prevail in these proceedings, as to do so would have the effect of enabling the tortfeasors to benefit by their wrongdoing, a result that would be contrary to accepted notions of justice and fairness between the parties. This in my view counterbalances and cancels out any potential to the defendants which I earlier identified to be a qualification to the plaintiff's entitlement to rely on the earnings he might have derived in the practice of spinology.

On the foregoing analysis, in determining the necessary approach to the assessment of damages, it is necessary to apply the principles identified in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 using a forward looking approach in retrospectively determining what the probable circumstances would have been, as was explained by Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 at [105].

On that approach, I consider that but for the plaintiff's injury, there was a very high probability that the plaintiff would have helped out his brother Mr Mathew Tremain on the farm for a short period of about a month, and would then have gone back to developing his spinology practice with a justified measure of confidence that in the first year, he stood to gain considerable income. In this regard, I accept the evidence of the plaintiff and Mr Anthony Tremain.

The argument made by the defendants against this proposition is that an examination of the plaintiff's financial returns do not reveal significant income for several years before his injury. In my view this is not an impediment to an award of damages for past loss of earnings where the plaintiff was in well-paid employment at the time he was injured and had a capacity to pursue significant earnings if he had remained in an uninjured state.

The argument made by the defendants pays no regard to the fact that the plaintiff spent a year out of the workforce to study and obtain certification as a spinologist. This occurred at around a time of crisis in his life which led him to change career paths. In those circumstances I do not regard the plaintiff's pre-injury income-tax returns to be a reliable guide to the assessment of either past or future loss of earning capacity.

The defendants raised a further argument that in the months before his injury, at a time when he was working as a spinologist, the plaintiff had not declared earnings as a spinologist. At the trial of these proceedings the plaintiff could not recall the amount that he earned in that period as a spinologist. This is not at all surprising. The solicitors appear not to have pursued the usual enquiries that would have been likely to have unearthed the details of such earnings whilst the information was available. A lot has happened to the plaintiff in the meantime. He has moved several times. He has had a relationship breakdown. He has been preoccupied with grievances associated with his compensation claim that gave rise to these proceedings, as has been documented by Dr Smith, his general practitioner. I do not consider his ability to recall his spinology earnings 9 years ago to be a legitimate matter for criticism by the defendants in these proceedings, particularly where the evidence in question could have been sought and preserved at an early and relevant stage had the defendants properly discharge their retainer to act for the plaintiff.

With regard to any past earnings as a spinologist, I must also have regard to the possibility that in the start of a new business, conducted in conjunction with other practitioners, where there were set up expenses and running costs, the plaintiff may not have taken drawings from the business at that early stage. In any event, this is not an issue on which I need to make a conclusive finding. I find that a more appropriate yardstick by which to assess the potential earnings of a spinologist, is the unchallenged evidence of Mr Anthony Tremain.

In coming to that view, that is not to say that I should accept without discount the potential earnings outlined by Mr Anthony Tremain as being applicable to the plaintiff. As with any new business venture which involves the establishment of a client base, there are risks of failure for multiple reasons that may be unconnected with skill ability. In this regard, a reasonable and alternative yardstick for an assessment of loss of earning capacity would at the least have been that of average weekly earnings.

Whichever yardstick is used, in my view, an assessment must be made for the plaintiff's loss of earnings between the time of his injury on 8 November 2000 and the time of commencement of the notional trial of 31 March 2003. In respect of that period, I find that the plaintiff has not worked because he has been unable to do so, and this has been as a result of the subject injury. There is no question of any failure to mitigate, as is evident from the medical evidence, the plaintiff's attendance at rehabilitation, and the continued payments of workers' compensation until the time of settlement.

Having considered the foregoing matters I am persuaded that I should accept as fair and reasonable the first part of the plaintiff's submission on past economic loss, namely for the first 12 months. This results in a calculation of gross loss of income of $4840 for the first month and eleven-twelfths of $100,000 for the ensuing 11 months, namely $91,666 gross.

In my view, this would represent a fair measure of the plaintiff's claim for past loss of earning capacity between the time of his injury on 8 November 2000 until 8 November 2001. However, I consider that the component for the 11 months of loss of earnings at the rate of $100,000 per annum in the first year following the injury should be discounted by 25 per cent to reflect vicissitudes that would have applied at that time. Accordingly, the sum of $91,666, when reduced by 20 per cent, reveals an amount of $73,332. When the sum of $4840 is added to this figure, this reveals a total loss of earnings in the amount of $78,172 gross, which is the equivalent of an average of $1503 per week gross over this 12 month period.

After allowing for the applicable rates of income-tax and the Medicare levy, these amounts are the equivalent of $1016.73 per week net or $52,870.34 for the first 12 months.

The remaining period between 9 November 2001 and the commencement of a notional trial on 31 March 2003 is a period of 72.57 weeks.

Over the ensuing period until the commencement of the notional trial, I consider that it was highly likely that the plaintiff would have been successful as a spinologist in private practice because he was one of the better ones according to his brother who trained him, and whose evidence I accept. I find therefore that the plaintiff was well placed to develop a good spinology practice and to position himself to earn income of up to $250,000 per annum.

It would probably be unrealistic to assume that the plaintiff would immediately, after a year of income of the order of $100,000 gross, move up to an income of $250,000 gross. However I consider it would have been reasonable, on the evidence, for the court assessing damages in the principal proceedings in 2003, on the evidence of Mr Anthony Tremain, to find that an income of $100,000 per annum gross would have continued in the following year. On that approach a discount would be required to allow for uncertainties. One such uncertainty would have been whether the plaintiff would have found practice as a spinologist to be congenial, as he did have some doubts at the time he went to work for his brother Mr Mathew Tremain.

A discount would also be required to reflect the possibility that despite predictions, the plaintiff may not have been as successful in a relatively new spinology practice, and to also account for the imponderables that would have applied to the situation the plaintiff would have been in at that time. Although the calculation is not a perfect one, partly because of the actions or inactions of the defendants, and partly because of the inherent uncertainties of the plaintiff's probable earnings in the years immediately following his injury, I consider that a 25 per cent discount should be applied to reflect these matters. I consider that in 2003, this would have been the appropriate approach that would have been taken by the court in assessing the plaintiff's damages for that second part of the claimed period of past of loss of earning capacity.

Accordingly, I have assessed the second period of loss at the rate of $75,000 per annum gross, which is the equivalent of $1442 per week gross over 72.57 weeks. The net weekly rate for this period, after applicable tax and Medicare levy offsets, is $985.48 per week. Accordingly, the loss for the second period is $71,516.28 net.

It is useful to make a comparison with the rate for average weekly earnings. In February 2003 the AWE rate for total male earnings in Australia was $1009 per week gross. This is the equivalent of $752.71 per week net. I consider that the plaintiff was well placed to earn well in excess of the average rates, as is evident from what he could earn doing farm work, and the potential earnings of spinologists.

The combined assessed loss for the two periods, namely $52,870.34 and $71,516.28 yields a total of $124,386.62. I therefore notionally assess the plaintiff's past loss of earning capacity to 31 March 2003 in the principal proceedings in the amount of $124,386.

In the context of an assessment of past economic loss, the weekly payments received by the plaintiff from his employer's workers' compensation insurer, namely $38,200, would have operated as part of the defendant's defence to the principal proceedings, and therefore a judgment in the plaintiff's favour would have necessarily excluded this amount.

After the offset allowance is made for the amount of weekly compensation payments received by the plaintiff, the difference reveals an amount of $86,186. In my view this amount fairly represents the probable amount the plaintiff would have most likely have received as a component of an award of damages in his favour for past loss of earnings in the principal proceedings after the offset of payments of workers' compensation payments.

The amount the plaintiff had paid by way of tax on his workers' compensation payments was identified in the amount of $7,043.40. I find that the plaintiff would have been entitled to have had this sum included in a damages award in his favour in the principal proceedings.

The plaintiff submitted that at a notional trial in 2003 he would have been likely to have succeeded in obtaining an award of damages in his favour for future loss of earning capacity in the range $198,254 to $283,200, after applying the required discount of 15 per cent on account of potential adverse vicissitudes.

That submission was based upon the proposition that he is entitled to claim a loss of at least $350 per week net, or more likely, the sum of $500 per week net for the remainder of his working life.

In contrast, the defendant submitted that it was unlikely that the plaintiff would have received any damages for loss of earning capacity, or alternatively, any such award ought to be assessed at a sum in the order of $20,000.

Whilst the submissions made by the respective parties are understandable in the context in which they were made, I consider that there are difficulties inherent in both approaches.

I consider the defendant's general approach to be overly simplistic and not reflective of the medical evidence I have accepted, particularly the opinion of Professor Ghabrial that I have already summarised and accepted.

I consider the plaintiff's submitted approach to be too arbitrary in the case of a person who I consider should be assessed as being unable to perform significant work over the remainder of his working life, including an inability to work in the profession of spinology for which he was trained, by reason of impairment of his left shoulder.

Several approaches are available as options for the assessment of future loss of earning capacity. These are the award of a buffer, or the projection of a selected weekly sum over the remainder of the plaintiff's probable working life if he had remained uninjured. On the latter approach, this would be either with or without a discount to allow for a residual earning capacity. In the paragraphs that follow, I will consider these options.

In some cases it is appropriate to identify a fair buffer along the lines discussed and approved in State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, per Heydon JA at [66] - [87]; pp 552-559, and the cases that have followed and approved that course. In my view, a buffer would be too simplistic an approach in this case given the specific evidence of the plaintiff that he is unable to work as a spinologist because he is unable to carry out the physical tasks due to his impaired left shoulder. A buffer is also inappropriate in a case where there is a proven inability to perform a range of commonplace activities such as those identified by Professor Ghabrial where those activities are involved in the workplace. I consider that a buffer is also inappropriate where there is an available method for estimating the loss. In my view a buffer applies more to cases where there is a paucity of evidence of probable income or where the pattern of loss of earnings is necessarily imprecise. Accordingly, I do not propose to award a buffer for future loss of earning capacity.

Although the evidence as to the plaintiff's earnings and his future potential earnings was in an imprecise state, the fact remains that but for his injury which is the subject of this claim, he was fit for a wide range of physical and non-physical work categories and tasks which he could have sought out and probably obtained on the open labour market.

In my view, it is clear that as a result of the injury in question, the plaintiff has been left with significant impairment for unrestricted competition on the open labour market. For example, his shoulder impairment precludes him from pursuing employment within this chosen vocation as a spinologist. The evidence of his brother Mr Anthony Tremain indicated that the practise of spinology is a potentially lucrative endeavour. The plaintiff can no longer pursue this because of his shoulder impairment. Similarly, he can no longer pursue farm work of the kind he was carrying out at the time of his injury, which gave rise to the principal proceedings. These are just two examples of the plaintiff's impaired earning capacity.

At the trial, the plaintiff was aged 45 years, and therefore had a theoretical working life of a remaining 20 years. There was no evidence that suggested a foreshortening of the plaintiff's remaining working life. The evidence disclosed that he had in the past applied himself in a variety of occupations. It was probable that uninjured, he would have retained that unrestricted capacity. In these circumstances, I consider that in the principal proceedings, the probable approach of the court would have been to award the plaintiff a weekly sum over the remainder of his working life of 20 years to reflect the significant impairment to his earning capacity whilst at the same time, in fairness to the defendant, allow some offset for a possibly emergent residual capacity.

Given that efforts at rehabilitation have been unsuccessful, and given the nature of the plaintiff's pain which wakes him at night, I consider that the offset should be relatively modest.

I consider that income goals for the plaintiff in the vicinity of $250,000 per annum or more are too high for the purposes of assessment of damages where these were uncertainties as to whether such income levels could be achieved by the plaintiff. However, I consider that the weekly sum awarded in respect of the second period of the claim for past loss of earnings, namely $948 per week net, is a reasonable yardstick to consider, before allowing for an offset for an assumed, but as yet unidentified, residual earning capacity that is yet to emerge. Doing the best I can to be fair to the plaintiff and at the same time not unfair to the defendants, I assess the plaintiff's loss of earning capacity at $950 per week net less $250 per week for an assumed residual earning capacity, noting that these figures are averages over the remaining working life.

The result is a loss of $700 per week net for projection over 20 years (x 666.4) which yields a projected sum of $466,480. After applying a 15 per cent discount for potential adverse vicissitudes, this results in a projected calculation of $396,508.

I have tested the sum of $700 per week against the yardstick of average weekly earnings of $752 per week net. Given that I consider the plaintiff to have had the potential for higher than average weekly earnings, I consider this comparison validates the appropriateness of the figure I have selected for projection.

Accordingly, I consider that the plaintiff would most likely have been the recipient of an award of damages in his favour for future loss of earning capacity in the sum of $396,508.

The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $124,386 is $13,682. I find that the plaintiff would have been entitled for this sum to be included in a damages award in his favour in the principal proceedings in respect of this head of damage. Future loss of superannuation

Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $396,508 yields an amount of $43,615. I find that the plaintiff would have been entitled for this sum to be included in a damages award in his favour in the principal proceedings on account of this head of damage.

In the principal proceedings, the plaintiff made a particularised claim for future-out of-pocket expenses in the amount of $11,150. In these proceedings, the plaintiff submitted that sum would probably have been allowed and included on an assessment of his future entitlement to damages.

In these proceedings, the defendants have conceded a buffer of $10,000 on account of future out-of-pocket expenses. The difference in these two positions is relatively small and neither of them seems on the face of the evidence to be excessive. The sum claimed by the plaintiff is the equivalent of $12.36 per week over his projected life span of 38 years. I consider that on the evidence, the sum of $11,150 was reasonably claimed by the plaintiff and given it was particularised precisely by the defendants, I infer that the defendants, who were acting for the plaintiff, could most probably have proven this item of claim. I consider that a lump sum of $11,500 to be a fair allowance to cover the lifetime cost of medical consultations and treatment, physiotherapy and pain killing medications.

Accordingly, I consider that the sum of $11,150 would most probably have been included in an award of damages in favour of the plaintiff in the principal proceedings.

The plaintiff's out-of-pocket expenses were in the amount of $14,800 and were paid by the workers' compensation insurer. I do not propose to include this sum in the notional damages assessment because it is, in effect, a book entry. That is, from a practical point of view, this amount would have been part of the defendant's defence and an ultimate judgment in the plaintiff's favour in the principal proceedings would have necessarily excluded this amount.

After allowing for the offsets that would have been claimed by way of defence as payments made to or on behalf of the plaintiff, my adjusted assessment of the plaintiff's probable entitlement to an award of damages in the principal proceedings is summarised as follows:

(a) Non-economic loss $91,353 (b) Past loss of earnings $86,186 (c) Fox v Wood $7,043.40 (d) Future loss of earning capacity $396,508 (e) Past superannuation losses $13,682 (f) Future superannuation losses $43,615 (g) Future out-of-pocket expenses $11,500 (h) Past out-of-pocket expenses $Nil Total $649,887.40

Having identified the probable amount of the plaintiff's net entitlement from an award of damages in his favour in the amount of $649,887 if the principal proceedings had been taken to a trial, it becomes necessary to address the manner in which quantum ought to be assessed in the present proceedings, as some adjustments are required.

A consideration of Issue 10 involves an evaluation of the analytical steps that must be taken into account in the adjustment of the notional award in an assessment of damages in these proceedings.

The starting point for the assessment is the notional award I have identified in the amount of $649,887.40 as at 30 November 2003.

In my view, there are 4 sequential steps of analysis that must be observed before arriving at a final assessment of damages in the present proceedings.

Before addressing those steps, it is necessary to deal with a specific submission made by the defendants on the adjustment of any award in favour of the plaintiff.

The defendants have submitted that in the event that the plaintiff succeeds in this case, there must nevertheless be a discount of at least 30 per cent for the loss of chance in accordance with general principle : Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351. There is no question that there should be some discounting of the plaintiff's entitlement to damages in accordance with this principle. The issue is the extent of an appropriate percentage of such a discount.

It was submitted that there were doubts about the plaintiff's case meeting the required thresholds, as well as there been a real chance that he would have been willing to settle the matter anyway for a lesser amount than the potential value of the case. It was submitted that the plaintiff may have failed to establish his case under ss 151G and 151H of the WC Act, or may have failed to establish a substantial loss of past or future earning capacity, or may have accepted a lower offer of settlement in net terms with full knowledge of the correct position. It was submitted that a deduction of at least 30 per cent should be made on account of these factors. Accordingly, the elements of the submission need to be considered.

Recognizing that authority requires the making of a deduction for chance, the defendants' submission requires consideration.

I have found it would have been unlikely that the plaintiff would have failed to meet the required thresholds. I have also found the plaintiff has suffered a substantial loss of earning capacity which has been demonstrated to have been productive of a financial loss. I have also found that the plaintiff had his sights set on a much higher figure for settlement of the principal proceedings than the amount for which the principal proceedings were in fact settled. I consider it would have been unlikely he would have settled for a lesser sum. Those circumstances therefore do not justify a discount as high as 30 per cent, as has been submitted.

In my view the factors relied upon by the defendants for a discounting of the plaintiff's entitlement to damages are driven by the underlying "minimalist" standard of preparation that had been undertaken by the defendants in the principal proceedings. In such circumstances, I consider that it would be unjust to make a deduction of the order of 30 per cent as submitted on behalf of the defendants because the potential value of the plaintiff's claim, as was inadequately documented by the defendants, was necessarily diminished by the effect of that poor preparation. This would have had an obvious negative influence on quantum. This should not have been the case.

In my view, the plaintiff ought not be penalised on that account in these proceedings for the poor standard of professional performance of his solicitors in the preparation and documentation of his case in the principal proceedings. In my view, in this case, a reduction to the extent submitted by the defendants, would, by broad analogy, to borrow a phrase from respected authority concerning the non-set-off of collateral benefits, where this would unfairly and anomalously provide a tortfeasor with a benefit by reducing the liability to pay damages, "be revolting to the ordinary man's sense of justice, and therefore contrary to public policy" : Parry v Cleaver [1969] UKHL 2 ; [1970] AC 1 per Reid LJ at p 13.

That statement of principle was recognized in cases where damages for gratuitous services were held not to require reduction because the services were provided by the tortfeasor, for example : Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, per Dawson J at p 364.

I shall address what I consider to be the appropriate percentage discount in relation to the third of the 4 steps that I consider need to be followed in this case in adjusting the notional damages assessment in the principal proceedings.

I now turn to consider those 4 steps as follows.

First, the potential impact of any deduction required to be made from the assessment on account of assumed unrecoverable solicitor and client costs, has to be considered, as has been submitted by the defendants.

I consider that the evidence in this case indicates that no such deduction is warranted, for the reasons that follow.

Lump sum costing in personal injury cases is apparently employed in some quarters of the legal profession. In the context of an assumed assessment of solicitor/client costs, such lump sum costs are not readily amenable to analysis of the professional time spent on legal work.

In the principal proceedings, the plaintiff's maximum agreed costs of $35,000 to the point of, and including a trial, plus an additional $5000 per day plus GST for each additional day of trial, which I have assumed would cover counsel's fees, solicitor's fees, witnesses expenses, all disbursements and professional costs, seem to me to be reasonable. The costs agreement between the plaintiff and Bale Boshev clearly has the effect of relieving the defendants of the burden of having to itemise the work performed to justify their costs on a solicitor and own client basis. In these circumstances, I find it difficult if not impossible to identify a relevant unrecoverable solicitor/client component. This is a matter that requires proof, not guesswork.

The costs regime under the Legal Profession Act 1987 provides that only reasonable costs can be charged and recovered by legal practitioners. As I have determined that the likely costs of the plaintiff pursuing the litigation to a fully contested hearing were reasonable, in my view it follows that those costs could not be described as being unreasonable. Therefore, I consider that there would be no costs gap for the plaintiff to have to bear in respect of his own solicitor and client costs.

Accordingly, I do not propose to discount the plaintiff's entitlement to damages on account of an argued gap between the plaintiff's solicitor and client costs and the part/party costs that would have been likely to have been incurred in taking the principal proceedings to a judgment following a contested hearing.

Secondly, it is necessary for an award of damages in these proceedings to reflect what I shall describe as the "accidents of litigation". Underlying this broad general description there are a number of imponderable and at times indefinable factors that can and often do operate in litigation to necessarily make prediction of the result uncertain. Examples are the unavailability of witnesses, witnesses not coming up to proof, witnesses not being accepted, and other factors of a like nature.

Also included in this description is the fact that the process of litigation is dynamic and not static. As such, many variables can and do arise that can affect the outcome. The greatest variable of all is the element of persuasion and the adversarial steps the respective parties employ to either aid or hinder persuasion. Within that category are activities, such as the uncertainties in the resolution of conflicts within in the lay and expert evidence. Included in this category is the effects of observation and filming of the activities of a plaintiff, noting that the relevance of film evidence is dependent upon its context, and can at times dramatically influence the result of a personal injury case. It is not unprecedented that a defendant may seek film evidence after an unsuccessful attempt at arbitration, mediation or informal settlement attempts.

Thirdly, it has to be recognised that in litigation, there is always the possibility of an appeal on liability, causation and quantum issues, or a combination of such issues. The prospect of an appeal brings into play a further range of discounting factors, some of which are self-evident and others, which are more difficult to define. Although the decision of a trial judge is presumed to be correct unless shown to be otherwise on appeal, I consider these factors to be matters that must also be given some recognition in the context of a damages award in a case such as this.

In weighing this factor, it is relevant to observe that ultimately, in these proceedings, the liability issues in the principal proceedings were virtually conceded. In my view this circumstance justifies only a modest discount on this account, to recognise the possibility that at the notional trial, the defendant in the principal proceedings may not have taken such a pragmatic course as the one now taken in these proceedings on these issues. That s aid, Mr Arnold's correspondence to his insurer client tends to suggest a pragmatic approach would have been taken, as to defend the principal proceedings, the plaintiff's brother would have had to change the tenor and effect of his evidence, something I consider to be an unlikely event.

Fourthly, the plaintiff has to acknowledge the need for an offset of $140,000, being the net amount the plaintiff has in fact received from the settlement of $175,000 less the amount of $35,000 for costs.

As a result of the foregoing analysis, it seems to me that the appropriate adjustment to be applied as a discount to my assessment of the likely damages I have found the plaintiff would have been awarded in the principal proceedings, to take into account the vagaries, uncertainties and accidents of litigation, noting such factors can impact either for or against the financial interests of either of the parties to the litigation, is a discount of 15 per cent.

I consider 15 per cent to be a fair and sufficient discount on account of these factors because, in view of the ultimate concessions the defendants fairly made in these proceedings concerning the issues of duty of care, breach and contributory negligence in the principal proceedings, those issues would have been unlikely to have been determined against the plaintiff, thus lessening the extent of a required discount in these proceedings.

On this approach, when the sum of $649,887.40 is adjusted by a discount of 15 per cent as outlined above, this yields the discounted sum of $552.404.29. After applying the required set-off of the received amount of $140,000, this reveals the damages assessment in these proceedings to be $412,404.29, subject to the question of interest, as the plaintiff is entitled to an award of pre-judgment interest on these damages.

A consideration of Issue 11 requires an adjustment for interest. A net assessment of $412,404.29 as at 30 November 2002 would have been payable as a judgment debt within 28 days, namely, 28 December 2002. In my view the plaintiff is entitled to post-judgment interest on this discounted and offset amount from that date. The Appendix to this judgment identifies that post-judgment interest calculations between 29 December 2002 and the date of judgment to be in the total sum of $290,744.99 pursuant to s 100 of the Civil Procedure Act 2005 and Schedule 5 of the Uniform Civil Procedure Rules 2005.

When interest in the sum of $290, 744.99, is added to the notional assessment of $412,404.29, this reveals the amount of a damages award and a judgment the plaintiff is entitled to receive in the current proceedings, in the sum of $703,149.28 after all required offset adjustments and discounts have been applied.

The proceedings are resolved in favour of the plaintiff on all issues in dispute between the parties with an assessment of damages and interest in the amount of $703,149.28. In these circumstances the defendants pay the plaintiff's costs on the ordinary basis unless otherwise ordered.

I make the following orders: (a) Verdict and judgment for the plaintiff against the defendants in the sum of $703,149.28;

(b) The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(d) Liberty to apply on 7 days notice if further orders are required.

Period Date range Prescribed interest rate Days Interest amount

1.  29.12.2002 to 31.12.2006  9%                        1460  $148,465.53
   

2.  01.01.2007 to 05.03.2009  10%                       794   $89,712.05
   

3.  06.03.2009 to 08.09.2009  9%                        186   $18,914.10
   

4.  09.09.2009 to 30.06.2010  9%                        294   $29,896.48
   

5.  01.07.2010 to 04.08.2010  9.5%                      35    $3,756.83
    Total                     -                         -     $290,744.99
   

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