Moussa v Confoy

District Court of NSW|2015-05-25|Before: Mr J

Solicitors: Cameron Gillingham Boyd (Plaintiff) Holman Webb (Defendant) File Number(s): 2014/222989 Publication restriction: None

Table of Contents Nature of case and background [1] - [5] Issues [6] Other accidents and injuries [7] - [15] Dismissed application to re-open the case [16] - [51] Credit [52] - [56] Facts [57] - [288] Plaintiff's pre-accident situation [58] - [65] Plaintiff's pre-accident medical records [66] - [73] Plaintiff's pre-accident work history [74] - [80] Plaintiff's most likely future circumstances but for the accident [81] - [111] Circumstances of the subject accident [112] - [120] Medical and allied reviews and assessments [121] - [288] Issue 1 - Alleged contributory negligence [289] - [300] Issue 2 - Plaintiff's pre-accident health status [301] - [334] Issue 3 - Findings concerning accident-related injuries [335] - [342] Issue 4 - Effect of further accident on 12 February 2011 [343] - [368] Issue 5 - Significance of right knee injury on 18 August 2012 [369] - [411] Issue 6 - Findings on accident-related disabilities [412] - [529] Right index finger [421] - [422] Chest [423] Neck [424] - [447] Back [448] - [472] Left shoulder [473] - [493] Right knee [494] - [517] Left knee [518] Surgical scarring [519] Psychological problems [520] - [526] Continuing medical and allied treatment [527] - [529] Issue 7 - Assessment of damages [530] - [613] Plaintiff's probable life span [531] Mitigation [532] - [534] Non-economic loss [535] - [546] Past loss of earning capacity [547] - [566] Future loss of earning capacity [567] - [579] Past domestic assistance [580] - [583] Future domestic assistance [584] - [600] Future treatment expenses [601] - [607] Past out-of-pocket expenses [608] - [612] Summary of damages assessment [613] Disposition [614] - [615] Costs [616] Orders [617]

Nature of case and background

At about 2.50pm on Wednesday 13 May 2009, the plaintiff, Mr Salaah Moussa, was injured in a motor vehicle accident involving a front to rear-end collision between two trucks on the flat carriageway of Jedda Road, Prestons, NSW.
At the time, the delivery truck being driven by the plaintiff was travelling along Jedda Road. It was slowing down in preparation for making a right turn into a driveway. At that time, a truck being driven by the defendant, Mr Raymond Confoy, drove into the rear of the plaintiff's truck with some force, despite the heavy application of brakes by the defendant when he attempted to stop his vehicle before the collision.
Just before the collision, the defendant had been momentarily looking away from the road ahead, and to his left. The defendant has admitted negligence but claimed there was contributory negligence on the plaintiff's part in allegedly failing to indicate an intended right turn, an allegation which was disputed by the plaintiff.
In the collision, the plaintiff claimed that he injured his neck, chest, low back and left shoulder. He also claimed that he injured his right knee when he fell whilst he was alighting from the truck. As a result, the plaintiff claims damages in respect of those injuries. The defendant disputed a number of aspects of causation of injury and disability on account of the plaintiff's history of prior injuries.
Those matters required a detailed evaluation of the evidence, including the medical evidence, for the purpose of making relevant findings of fact. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act) and the Civil Liability Act 2002 (CL Act).

Issues

The parties initially identified numerous issues for determination: MFI "1". Following a consideration of the pleadings, the evidence and the arguments, the issues for determination may be conveniently identified as follows: Issue 1 - Whether there was contributory negligence on the part of the plaintiff, and if so, in what apportionment; Issue 2 - Identification of the plaintiff's relevant pre-accident health status; Issue 3 - Findings as to the plaintiff's accident-related injuries; Issue 4 - Whether the plaintiff's injuries were aggravated by a further accident that occurred on 12 February 2011; Issue 5 - The significance of the plaintiff suffering a twisting injury to his right knee on 18 August 2012; Issue 6 - Findings as to the plaintiff's accident-related disabilities; Issue 7 - The assessment of the plaintiff's entitlement to damages for his accident caused injuries and losses.

Other accidents and injuries

The defendant claimed that not all of the plaintiff's alleged injuries and disabilities were caused by the subject accident. In that regard, the defendant pointed to a number of pre-accident injuries the plaintiff had sustained, including to his neck, back, left shoulder and right knee. These were the same areas the plaintiff claimed he had injured in the subject accident.
The bundle of medical evidence tendered on behalf of the plaintiff included references to a number of other pre-accident incidents, namely an assault that occurred on 7 February 2004; a workplace accident that occurred on 5 December 2007; and a motor vehicle accident that occurred on 11 August 2008. The tendered documents also included a reference to a motor vehicle accident on 12 February 2011, in which he injured his chest, left shoulder and left knee; and an incident in which the plaintiff twisted his right knee on 18 August 2012 when he turned whilst he was in bed.
These matters have a bearing on the issue of causation of the plaintiff's claimed ongoing disabilities in this case, and his claimed inability to work. Those matters stand to be analysed according to an assessment of the plaintiff's evidence and the medical evidence.
There is a well-recognised category of cases litigated in the District Court where analysis of medical evidence must be undertaken in circumstances where the issues are narrowly confined, and where the calling of oral evidence from medical experts would involve undue inconvenience to the practitioners and their patients, or would involve disproportionate expense to the parties: Manly Municipal Council v Skene [2002] NSWCA 385, at [22]. This case is not within that category.
In this case, the task of grappling with and analysing the medical evidence, in conjunction with the evidence of the plaintiff, for the purpose of arriving at findings of fact on matters of injury and disability, has been rendered more difficult than might otherwise have been the case due to decisions made by the parties as to how they timed and structured their evidentiary medical reports, and because they chose not to call any oral evidence from any medical practitioner to explain or elucidate the key medical issues that were embedded in the evidence given in the proceedings: Majkic v Bonnano [2008] NSWCA 253, at [26]; Cupac v Cannone [2015] NSWCA 114, at [17] - [18].
In that context, it unquestionably remains for the plaintiff to prove that he was injured as claimed, and that those injuries are the relevant cause of his claimed ongoing disabilities and his claimed losses: s 5D of the CL Act: Paul v Cooke [2013] NSWCA 311, at [80].
The principles cited in the preceding paragraphs are relevant to the consideration of the submissions made by the defendant to the effect that the plaintiff's ongoing knee problems were caused by a pre-existing injury or condition: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Shoalhaven City Council v Humphries [2013] NSWCA 390, at [87] - [88].
In cases where there are disputes concerning matters of causation involving medical issues, absent the uncontroversial availability of a simple common sense or logical analysis to resolve such disputes, a court is constrained from drawing conclusions on medical matters without the guidance of expert evidence: Arian v Nguyen [2001] NSWCA 15, at [22], Strinic v Singh [2009] NSWCA 15, at [60].
In this case, those principles identify an evidentiary difficulty in the path of an acceptance of some of the plaintiff's arguments concerning his claim that all of the ongoing problems involving disability are due to the subject accident.

Dismissed application to re-open the case

The hearing of the case took place on 4, 5 and 6 May 2015. Final arguments concluded on 6 May 2015. At that hearing, Mr T Boyd appeared for the plaintiff, and Mr J Turnbull appeared for the defendant.
After judgment had been reserved and in the course of analysing the medical evidence, some of which, comprising clinical records in the form of a hospital discharge letter dated 18 August 2012, revealed what appeared to be a relevant item of history, namely that on that date, the plaintiff had suffered a twisting incident involving his right knee whilst he was turning in bed: Exhibit "B", pages 110 - 111.
During the hearing, neither party had directed any questions to the plaintiff concerning that occurrence. None of the medical opinions tendered in the case for the plaintiff had either referred to or had discussed that historical event, although it appears that the relevant hospital discharge letter which contained the detail of that event, had been provided to the examining and reporting doctors before they furnished their respective reports.
In closing arguments, neither party had directed any submissions to that matter of history. It appeared that neither party had attached any significance to the incident involving the plaintiff's right knee on 18 August 2012.
Following the final submissions made on 6 May 2015, and in the course of analysis of the medical evidence, it became apparent that the plaintiff's experience of a knee twisting incident on 18 August 2012 had some potential relevance to the assessment of the issue of causation of the plaintiff's ongoing disabilities and to aspects of his claimed losses.
In those circumstances, and in accordance with the requirements of procedural fairness, that matter was drawn to the attention of the parties. On 19 May 2015, after due notice, further argument was invited on the significance of that history. Following those further submissions judgment was again reserved: T150 - T160.
Subsequently, on 20 May 2015, on behalf of the plaintiff, a notice of motion was filed seeking leave to re-open the plaintiff's case for the stated purpose of obtaining further medical evidence on the significance of the knee twisting event involving the plaintiff on 18 August 2012. At the hearing of the motion on 25 May 2015, Mr D Williams appeared for the plaintiff/applicant and Mr W Reynolds appeared for the defendant/respondent.
In support of his application to re-open the case, the plaintiff relied upon three affidavits prepared by his solicitor, Mr Stephen Smith. These were respectively sworn on 20, 21 and 25 May 2015. No objection was taken to the timing of those affidavits in relation to the hearing of the motion.
In essence, the affidavit sworn on 20 May 2015 deposed to the fact that in the course of the MAS and CARS assessment processes which preceded the hearing, no novus actus interveniens type arguments had been raised in relation to the incident involving the plaintiff's right knee on 18 August 2012. The affidavit noted that the issue under present consideration had been raised for the first time during interchanges between the bench and counsel at the further listing of the proceedings on 19 May 2015. That statement, which was in the nature of a submission, wrongly assumed that the only legal issues to be determined in the proceedings were those that had been identified by the parties.
Paragraph 11 of Mr Smith's affidavit of 20 May 2015 went on to assert that if any relevant error had occurred in failing to specifically ask questions of the plaintiff in relation to his hospital attendance on 18 August 2012 concerning his right knee problems, or if there had been any relevant failure to advise on the need to obtain medical evidence on the relationship between the incident of 18 August 2012 and the injury on 13 May 2009, such a mistake was said to have been that of counsel in failing to advise on the need for further evidence.
The detailed circumstances underlying that statement by the plaintiff's solicitor were not explained or explored in the application to re-open. In any event, the statement in question seemed to be over-simplistic, as it was also part of the obligation of the plaintiff's solicitor to identify the contested issues requiring proof at a trial, and to obtain the necessary evidence to meet those issues, assuming that such evidence was obtainable.
Mr Smith's further affidavit sworn on 21 May 2015 in essence deposed to the fact that copies of the Canterbury Hospital Discharge Summary which related to the plaintiff's attendance at that hospital on 18 August 2012 for treatment of his twisted and stiff right knee, had been respectively provided to Dr Peter Giblin, the plaintiff's consultant orthopaedic expert, and to the MAS Assessor, Dr Peter Johnson, and to one of the plaintiff's treating orthopaedic surgeons, Dr Maniam, prior to the preparation of their reports which were ultimately tendered in evidence in support of the claim that the plaintiff had proven his case.
A review of the tendered reports from those respective experts reveals that none of those reports made any mention of the incident of 18 August 2012 concerning the plaintiff's right knee leading to a hospital admission on that day. The inference sought to be drawn on behalf of the plaintiff was that if those experts had not referred to that material in their reports, then the incident of 18 August 2012 should be taken to be irrelevant to a causation analysis. Such a submission is plainly wrong in circumstances where the experts made no mention of that factual matter, and where, in examining the evidence for the purpose of making findings of fact, the court must have regard to the requirements of s 5D of the CL Act when determining causation.
Apart from the content of the document comprising Exhibit "B", pages 110 - 111, no opinion evidence tendered in the proceedings gave any consideration to the events of 18 August 2012. This circumstance was of some significance to potential findings on the issue of causation of the plaintiff's disabilities affecting his right knee after 18 August 2012, and as to the assessment of damages generally.
The further affidavit of Mr Smith sworn on 25 May 2015 annexed a copy of Dr Maniam's handwritten clinical notes relating to his treatment of the plaintiff. The solicitor for the defendant had previously served a copy of those notes on the plaintiff's solicitor in the lead-up to the hearing. It is significant to observe that Dr Maniam's clinical notes had not been tendered by either party at the hearing. It was not suggested that this was as a result of any oversight. Those notes do not of themselves relevantly constitute expert opinion evidence.
On 25 May 2015, the plaintiff's motion seeking leave to re-open his case was heard and dismissed. The plaintiff was ordered to pay the defendant's costs of the dismissed motion. At that time it was indicated that the reasons for the dismissal of that motion would be incorporated into this judgment. Those reasons now appear in the paragraphs that follow.
The principles to be applied in consideration of whether a party should be given leave to re-open their case involve the exercise of a discretion. The exercise of such discretion must proceed according to the dictates of justice generally, and in particular, to the parties: s 58 of the Civil Procedure Act 2005. There are no guidelines for the exercise of a discretion where the relevant criteria involves a consideration of the justice of the circumstances: Kentwell v The Queen [2014] HCA 37, at [30].
Such discretion is more readily exercised in favour of leave to re-open in cases where there has been oversight that can be cured without causing significant prejudice to the opposing party, and where the dictates of justice indicate that it is appropriate to grant leave to re-open: s 58 of the Civil Procedure Act 2005.
The threshold for granting leave to re-open appears to be much lower in a case where a final judgment has not yet been delivered compared to a case where the application had been made after final judgment had been delivered: Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256, at pages 266 - 267; Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at pages 478G - 479A.
In considering whether leave should be granted in cases of disclosed oversight or inadvertence by counsel, the general tendency is for leave to be granted where the application to re-open has occurred due to the overlooking of a matter proven in the opponent's case, or where counsel has acted upon some misapprehension. Conversely, the grant of leave to re-open is generally less indicated where the failure to lead evidence from a witness whom it is afterwards desired to call, has arisen due to a tactical decision by counsel: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at pages 475G - 476A. In this context, the initial non-reliance by both parties upon Dr Maniam's notes represents a tactical decision as to what was to be tendered and what need not be tendered.
Cases where counsel has made a mistake, or has failed to appreciate the relevance or the admissibility of the evidence that was omitted from being led, should generally be seen as falling into the category where it may be justifiable to grant leave to re-open: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 476B, pages 476G - 477A.
However, those considerations must be balanced against the interests or the dictates of justice, including the public interest of the need for finality of litigation and limiting the number of issues it is open to the parties to contest at a hearing, where the reasonable limiter on the grant of leave in the circumstances is an overriding consideration of the overall interests of justice, including justice to not just one party, but to all parties: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 476D.
In recognising there are no hard and fast rules to be applied in such circumstances, a number of matters need to be considered in determining whether the interests of justice are better served by allowing a case to be re-opened.
Foremost and pivotal amongst those considerations is the need to ensure the client seeking to re-open his case does not suffer as a result of his counsel's deliberate decision or oversight, but this also needs to be balanced against another counter veiling pivotal consideration, namely, whether a grant of the leave sought would be likely to cause significant prejudice to the opposing party: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 478E.
Ordinarily, the interests of justice would favour the grant of leave to re-open where the evidence sought to be adduced had been overlooked and the other party would not be prejudiced by the fact that additional evidence is to be given after cross-examination of the witness had already been completed: Brown v Petranker [1991] 22 NSWLR 717, at p 728F.
In essence, what the plaintiff seeks in this instance is an unconfined indulgence by which he would have the opportunity to be medically re-examined, and to then give further factual evidence, followed by further medical evidence as to the nature and cause of his knee problems. All of this proceeds on the assumption that such further evidence, which has not yet been obtained and which remains unconfirmed as to whether it is likely to be obtainable, would favour his case. The speculative nature of that enterprise is self-evident, and it is emphasised by the fact that the terms and parameters of such contemplated further medical evidence have not yet been identified or defined.
In my view such a proposal offends the public policy principle by which litigation should be considered and finally determined after a fair trial based on the evidence chosen to be tendered by the parties. In the present context, the course proposed on behalf of the plaintiff would undoubtedly create a prejudice in exposing the defendant to an unconfined prolongation of the dispute, without a clearly stated definition of the exercise, or its likely cost, and where it is uncertain as to whether, at the end of the exercise, the proposed course is likely to advance the plaintiff's case.
The evidence adduced in support of the plaintiff's application to re-open his case provided no cause for confidence that, on the balance of the probabilities, the plaintiff's case on the causation of his right knee problems, is likely to be improved or relevantly clarified. What is in reality being sought here is the pursuit of a mere chance that is uncertain in its nature and in its likely outcome.
In reality, what the plaintiff now seeks is an adjournment in order to pursue an opportunity to re-litigate an aspect of his damages case as a result of realising that a weakness has been exposed in the course of analysis of the evidence, whereas beforehand, both parties had been content to leave the state of the evidence as it was. This was in circumstances where it could be reasonably assumed that the parties had approached the trial of the issues by aiming their best or at least reasonable efforts at the issue of causation of injury and disability, recognising that they were embarking on a course where that issue was to be determined by a trial, and not by a trial run of a trial.
In effect the plaintiff is seeking to recommence his case, but with further evidence that is unwarrantedly assumed to be available. That course would necessarily require the defendant to significantly restructure his case, at a cost. The prejudice to the defendant in such circumstances is self-evident, and would involve substantial wasted costs in defending what may well be an entirely different case on damages.
I am not persuaded that the problem under present consideration has truly arisen as a result of oversight of the kind suggested by the plaintiff's solicitor. Rather, I consider that the problem has arisen because the parties, for whatever reason, made the tactical decision not to call medical oral evidence from the relevant practitioners, and they chose not to clarify the underlying evidence and assumptions with those experts. In such cases, there must at some point be an end to litigation.
I consider that in this case where judgment was reserved following full argument on the evidence tendered, that advanced stage has been reached: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [111] - [114].
A further matter affecting the exercise of discretion also requires mention. As will become apparent in the consideration of Issue 6, the plaintiff faced a number of other difficulties of proof concerning the cause of his ongoing neck, back, left shoulder, right knee and psychological problems. The plaintiff's application to re-open his case was not directed at seeking to resolve those problems.
If those matters were to be addressed in a re-opened case (for which there was no application) the defendant would necessarily be forced to face an entirely different damages case, on different evidence, which would involve significant prejudice not readily curable by a cost order.
I also took those practical matters into account in refusing the plaintiff's application to re-open, because granting the application would not have addressed or resolved those other problems, as will become apparent from my review of the medical and allied evidence, my findings on Issues 4, 5 and 6, and my findings on the assessment of damages.
For the above reasons, the plaintiff's application to re-open his case for the purpose stated, was refused.

Credit

The plaintiff is a relatively unsophisticated and inarticulate man. He has obvious difficulty expressing himself in words. Without intending any criticism or disrespect to him, it was plain that his evidence included many clichéd self-interruptions, incomplete sentences and expressive hand gestures, by which he sought to explain what he was trying to say.
In the course of cross-examination it became apparent that the plaintiff had some difficulties with comprehending the mutually exclusive difference between the concepts of an injury and the existence of disabilities consequential upon injuries. He appeared to equate injury to disability: T56.39 - T58.23. I consider this to have been due to a problem with comprehension on his part, and with his ability to articulate what he wanted to say, rather than constituting a deliberate evasiveness or an unwillingness to make appropriate concessions in cross-examination. This is consistent with his history of having had learning difficulties and needing special assistance with reading and writing when he was at school: Exhibit "B", p 129. Accordingly, I do not accept the suggestion that the plaintiff lied about his pre-injury state of health, although the reason for the defendant making that suggestion is founded upon a reasonable interpretation of the evidence: T61.2.
Accordingly, I do not consider that the issues raised by the defendant concerning the plaintiff's answers to questions he was required to address when filling out personal injury, and sickness and accident claim forms, (Exhibits "2" and "3") about whether he had any prior history of injury should be seen as reflecting adversely on his credit, as was claimed by the defendant. Rather, I consider that the true significance of those documents is to demonstrate, without any suggestion of dishonesty on the plaintiff's part, his evidence was confused due to his limited insight into what comprised injury as distinct from disability. However, the conclusion to be drawn from that view is that the plaintiff's own evidence, when read alone, is not entirely reliable on matters of his past medical history, particularly when describing the effects of his various injuries in relation to a series of incidents and accidents in which he has been involved over the course of time. For that reason, a close evaluation of the medical evidence takes on a particular importance in this case.
I nevertheless considered that the plaintiff gave his evidence on matters of injury and disability, as he saw it, without exaggeration or guile. I formed the view that the plaintiff endeavoured to be a truthful witness on matters in dispute to the best of his understanding and ability, subject to the usual considerations that concern the fallibility of memory: Watson v Foxman (1995) 49 NSWLR 315. The reliability of the plaintiff's evidence on matters of injury, disability and claimed losses, therefore stands to be evaluated against the evidence as a whole.
A further matter to be considered is the defendant's attack on the plaintiff's credit by the suggestion that the plaintiff had deliberately understated the income he had declared in his 2009 and 2010 income tax returns. The plaintiff denied that suggestion: T64.3 - T66.32. That evidence, and that denial, will be analysed in the overall context of the findings required in respect of the claim for economic loss.

Facts

Unless otherwise stated, and as a prelude to making findings on the issues calling for decision, I set out my findings of fact as follows.

Plaintiff's pre-accident situation

The plaintiff is presently aged 32 years. At the time of the subject accident he was aged 26 years. He is married and has children aged 7 and 6. He left school in Year 11. He reportedly experienced learning difficulties at school. He completed 3 years of a 4 year apprenticeship and TAFE trade course in cabinetmaking and shopfitting. He did so whilst employed in a family business. He unfortunately left that work to pursue other employment because he developed an allergy to MDF dust exposure in that industry, which made it difficult for him to continue in that work.
The plaintiff said he was in good general health before the subject accident. However, that evidence needs to be assessed with caution as he had been involved in a number of previous incidents involving injury, as was disclosed in his own evidence and in the albeit sparse pre-accident medical records.
On 7 February 2004, the plaintiff was the victim of an assault in which he sustained a head injury in the form of a fracture of the left orbit. In relation to that incident the plaintiff stated, without contradiction, that he made a full recovery, and was back to his normal self: T24.13 - T24.28. He later received the sum of $10,000 by way of victim's compensation in relation to that event. Although there is no record or evidence of him having any specific lasting disability from that incident, one would ordinarily expect that the payment of a sum of that order by way of victims' compensation would be supported by medical or allied evidence. No such evidence was tendered in these proceedings.
On 30 March 2004, the plaintiff saw his then general practitioner in relation to a complaint of disturbed sleep. On 18 February 2005 he again saw his general practitioner in relation to complaints of a sleep disorder, as well as problems comprising anxiety and depression. On 6 December 2005 the plaintiff also consulted his general practitioner in relation to insomnia and family problems. On 18 March 2006, the plaintiff consulted his general practitioner in relation to experiencing palpitations and panic attacks. The evidence did not disclose the cause of those presenting problems, nor does it disclose whether they were in any way related to the assault on 7 February 2004.
On 5 December 2007, the plaintiff sustained an injury to his left shoulder following a slip and fall incident at his work. He saw his general practitioner at the time, Dr Tadros, in relation to that injury which comprised pain in the left shoulder with some time off work (T44.17 - T44.25), but there is no record that any treatment was required. The injury appears to have been minor. The plaintiff's evidence was that he had obtained a complete recovery from that injury insofar as any symptoms were concerned: T10.26 - T10.39.
On 11 August 2008, the plaintiff was a passenger involved in a motor vehicle collision in which he injured his chest and his left shoulder. He also injured a knee in that incident, but he could not recall whether or not the injury was to his right knee, but other records suggest it was the right knee. Other evidence suggests he had x-rays of his right knee in relation to that incident: Exhibit "B", p 75.
Absent contradictory evidence based on contemporaneous medical records, I accept the plaintiff's evidence to the effect that he saw a general practitioner in relation to those matters and he underwent some scans, following which he made a full recovery and went back to work and to his physical training regime: T11.30; T12.2.
It appears that in respect of the matters outlined above, the plaintiff's general practitioner at that time was either a Dr Youssef, a Dr Erfani or a Dr Houfani. No reports or clinical records from those doctors were tendered by either party. In those circumstances, it was not inherently improbable that the plaintiff made a full recovery from the 11 August 2008 accident before the subject accident, 9 months later. The plaintiff's evidence on those matters must be assessed in light of the available medical records.

Plaintiff's pre-accident medical records

Unusually for this type of case, where matters of causation of injury and disability remains in significant issue, only sparse pre-accident medical records relating to the plaintiff were tendered by the parties. There were no records available in respect of the 7 February 2004 assault. The available records concerning the other pre-accident incidents revealed only the following matters.
On 6 December 2007, and following his fall at work the previous day, the plaintiff underwent an x-ray and ultrasound study of the left shoulder at the referral of Dr Youssef. The report of those investigations was difficult to decipher due to poor photocopying, but overall, that imaging has been reported as revealing a normal x-ray and a normal ultrasound study: Exhibit "B", p 73. The report of those investigations also noted that the reporting radiologist considered the plaintiff had provided good historical evidence of the occurrence of a dislocation of his left shoulder, that had been followed by a relocation.
On 15 August 2008, the plaintiff underwent x-rays of the cervical spine and left shoulder at the referral of another general practitioner, Dr Houfani. Those x-rays were reported as being normal: Exhibit "B", p 74. Those investigations were not identified as relating to any particular incident.
On 19 August 2008, a week after being involved in a motor vehicle accident in which his truck hit a pole, the plaintiff underwent an x-ray of the right knee at the referral of Dr Houfani. That x-ray was reported as being normal: Exhibit "B", p 75.
The plaintiff acknowledged that he had right knee pain following the 11 August 2008 accident, as well as quite bad back and left shoulder pain for which he required pain medication as well as time off work: T43.1 - T44.11. The plaintiff sought to downplay the injuries to his knee and left shoulder from that accident and based his view that he had recovered on his understanding of the results of the scans which had been ordered, "came back clear": T11.39; T43.32.
There was a 9 month interval between the plaintiff's 11 August 2008 accident as referred to above, and the subject accident on 13 May 2009.
On the basis of the right knee x-ray dated 19 August 2008, the defendant argued that the plaintiff had a pre-existing injury to his right knee before the subject accident, and that this was the relevant cause of the plaintiff's ongoing right knee disabilities.
Whilst that could possibly be so, the defendant's consequential submission that there was a pre-existing disability of that knee which had an ongoing effect after the subject accident was not based on medical evidence. Generally, a submission along those lines would have to be sustained by reasoned inference from supporting medical evidence. These matters will be revisited in connection with the findings concerning Issue 2, namely the plaintiff's relevant pre-accident health status.

Plaintiff's pre-accident work history

Between the years 2000 and 2005, the plaintiff worked in a family shopfitting business. He had obtained a TAFE Certificate III in Shopfitting. He became unsuited to that trade due to his specific dust allergy.
In 2005, the plaintiff pursued and obtained training and certification in other areas of potential work activity, including fire fighting awareness, blue card and green card certificates, a heavy rigid vehicle licence, and a forklift licence.
In 2006, the plaintiff pursued and obtained training and certificates in manual handling awareness, safety checking of electrical appliances, confined space entry awareness, first aid, responsible service of alcohol, and a security guard licence.
Those certificates permitted the plaintiff to engage in a wide range of potential employment pursuits.
In 2006, the plaintiff commenced full time employment as a truck driver with Toll Fast, carrying out delivery work in Sydney.
In 2008, the plaintiff commenced similar employment as a courier and truck driver with Bonds. In October 2008, the plaintiff purchased his own 8 tonne truck and became a sub-contract truck driver for Bonds. His work duties involved, driving, loading, strapping loads, and unloading his truck for deliveries, including activities such as the lifting and carrying of goods.
The subject accident occurred whilst the plaintiff was engaged in that work on a full time basis. At that time he had in mind to develop a business plan for purchasing an additional delivery truck, and to employ a sub-contract delivery driver with the aim of deriving profits from a planned business venture along those lines. The feasibility of that plan, in the plaintiff's circumstances, involved uncertainty on a number of levels.

Plaintiff's most likely future circumstances but for the injury

It is necessary to make findings of fact on the plaintiff's most likely future economic circumstances but for the subject injury before an assessment can be made of his claim for loss of earning capacity: s 126 of the MAC Act.
The plaintiff's work experience has only ever been as an employee. Relevantly, he has had no experience running a business in which others were employed. Although it appears that several of his family members were involved in running their own businesses, that does not necessarily mean the plaintiff would have been successful in operating his own business as an employer of another delivery truck driver whilst also carrying out such work himself.
The plaintiff had shown, from the previous mal-administration of his own financial reporting obligations, that in the past he had not taken timely care to check and ensure that his income tax returns had been prepared correctly. This has necessitated the preparation of amended income tax returns once that fact had come to notice in the course of the preparation of his case.
Although the plaintiff claimed the error in his income tax returns was due to mistakes on the part of his former accountant who was apparently no longer locatable, I consider that the plaintiff's history of lack of scrutiny of the work carried out by the former accountant on his behalf, thus permitting scope for major errors to occur in his income tax returns, did not auger well for the plaintiff to operate his own business as a contractor driving trucks and employing others. This would appear especially so where success of such a business was at least in part obviously dependent upon competitive profit margins, timely and effective monitoring of overheads, cashflow, and compliance with the need for accurate accounting and financial returns.
The plaintiff tendered his copy income tax returns for the years ended June 30th 2007 to June 30th 2010. Those returns appear to have been lodged on 21 May 2012, which appeared to be well after the normally expected lodgement times: Exhibit "C", pages 1 - 36. The reasons for this were not explored in the evidence. The effect of those returns, for the 2007 to 2010 years, is as follows: Financial Year Disclosed Taxable Income Amended Disclosed Taxable Income 2007 $20,417 No change 2008 $16,393 No change 2009 $25,358 $51,187 2010 $25,217 $50,898

The plaintiff had sustained injuries in accidents that had occurred in 2007 and 2008. Whether or not those injuries had an impact on his level of earnings as tabulated above cannot be determined.
In the 2010 year, tax was assessed on the amended disclosed income of $50,898 in the amount of $9119.40. This reveals the sum of $41,778.60 net per annum: Exhibit "C", p 51. This equates to a weekly income of $803.43 per week net.
For the purposes of comparison and analysis, the 2009 and 2010 years are roughly equivalent, and those earnings can be reasonably taken to be an indication of the plaintiff's likely level of earnings both before and after the subject accident, and until the time he ceased working for Bonds at the beginning of June 2010.
Allowing for some variation in income levels due to possible fluctuating or increasing levels of work, and possible CPI or equivalent increments, I propose to treat the plaintiff's pre-accident and post-accident earning capacity from the date of the accident until the present time, as being in the rounded up average amount of $850 per week net.
Having regard to possible increases in income as referred to above, I consider that a reasonable approach to the assessment of the plaintiff's potential future earnings as a truck driver, assessed at the present time, uninjured, would be in the rounded amount of $900 per week net.
I do not consider that the higher general economic yardstick figure of average weekly earnings to be an appropriate guide to the plaintiff's earning capacity in this case as his declared earnings appeared to be below published rates of average weekly earnings.
In considering the plaintiff's most likely circumstances but for his injury, account must be taken of the past financial errors that have been identified in the plaintiff's tax returns as initially lodged, and late lodgement issues generally. These matters raise real doubts about the plaintiff's capacity for regular and appropriate financial compliance which in turn must have an adverse impact on the likelihood of the plaintiff successfully pursuing profitable self-employment.
It seems that the plaintiff was not someone who would have paid sufficient assiduous and timely attention to such matters of detail: T66.32. I do not accept the suggestion made on behalf of the defendant that the plaintiff deliberately understated his income as was suggested to him: T64.3. The evidence was not sufficient to sustain such a finding. However, the historical discrepancies in his reporting of his income suggests doubtful confidence should be placed in his ability to successfully run a contract or sub-contract trucking business that employed others to generate profits for him. The circumstances and the content of his inaccurate tax returns raise such doubts.
In those circumstances I consider that it would be unrealistic and speculative to include in any award of damages for accident-related loss of earning capacity, an allowance for additional income from operating a business involving a second truck with an employed driver.
Instead, I consider that it was most probable that the plaintiff would have continued to work on his own as a sub-contract delivery truck driver in Sydney, deriving income of the order disclosed in his amended income tax return for the 2010 year, with periodic increments and or fluctuations, depending upon the availability of work and the competitive nature of the industry in which he was engaged.
Therefore, the plaintiff's amended income tax returns and notices of assessment for the period 1 July 2009 to 30 June 2010, as analysed at paragraphs [85] - [92] above, provide a useful guide to the assessment of his claim for past and future earning capacity: Exhibit "C", pages 50 - 71.
In support of his claim for loss of earning capacity, the plaintiff relied on a purported agreement he claimed to have entered into with RH Trading & Transport Pty Ltd. The agreement, Exhibit "5", was dated 20 May 2010, and was signed by Mr Rabih Homsi on behalf of that company. The document had not been signed by the plaintiff.
The document stated the plaintiff was to be engaged as a heavy vehicle driver for a period of 24 months from 14 June 2010 at the rate of $500 per day, 5 days per week, which equated to $2500 per week gross. The document in question provided that the plaintiff was to be responsible for his own vehicle, it's maintenance, insurances and indemnities. In that purported arrangement, he was in effect, to be a self-employed sub-contract delivery driver.
The plaintiff considered this contract to have been a massive opportunity for his economic self-advancement: T18.2 - T18.7. He considered that he would have managed to continue driving his own truck and employ another driver to drive a second truck: T32.10 - T32.11. Whether that ambition could have been realistically achieved by the plaintiff requires assessment on the balance of probabilities.
The plaintiff met with Mr Homsi on 19 June 2010 and communicated to Mr Homsi his inability to proceed with the described employment because at that time he was unable to perform the required duties. He communicated this to Mr Homsi in the form of a letter to RH Trading Pty Ltd: Exhibit "6". The typographical error as to the date in that letter is of no significance.
The defendant submits that those documents are self-serving, and absent any explanatory evidence from Mr Homsi as to the circumstances and feasibility of the claimed offer, and the plaintiff's relinquishment of the position that had apparently been offered to him, the plaintiff's evidence on those matters should not be accepted as being a true indication of the extent of his earning capacity.
On the evidence, I am not persuaded the plaintiff would have successfully continued with and completed such a contract. It was in effect self-employment. I consider that in the context of attending to his own driving duties, he lacked the business acumen, ability and supervisory focus to ensure he would be compliant with his taxation obligations in a timely and accurate manner in 2010, as is evident from his history on that subject. On the balance of probabilities, I consider that such issues would have operated as a real and insurmountable difficulty in the plaintiff's path, quite apart from ordinary uncertainties and vicissitudes associated with running a small business.
Furthermore, in the absence of evidence from Mr Homsi as to the nature and extent of the work that was contemplated and its likely continued availability, I am not persuaded that the purported contract relied upon by the plaintiff (Exhibit "5") was likely to have been performed.
I therefore find that the contemplated driving position performing work for RH Trading & Transport Pty Ltd did not represent a realistic basis upon which to assess the plaintiff's loss of earning capacity.
In support of the plaintiff's claim for economic loss, his solicitors obtained a report dated 1 April 2014 from WorkTogether, which was authored by Mr Craig Martin, a rehabilitation counsellor: Exhibit "C", pages 76 - 111. It appears that the plaintiff was not interviewed for the purposes of that report.
The report identified two classifications for the purposes of estimating potential earnings, namely those of employee truck drivers and contractor truck drivers. The methodology of the report was to utilise a review of occupational classifications and a labour market research analysis, to undertake an internet job match process, and to make assumptions on percentage earnings increments: Exhibit "C", pages 78 - 81.
The report concluded that but for the plaintiff's injury, he "would have reasonably expected to earn at least $1,404 gross per week, probably $1,538 gross per week and possibly up to $1,730 gross per week working as a Truck Driver (employee) in Sydney": Exhibit "C", p 77.
The report also concluded that but for the plaintiff's injury, he "would have reasonably expected to earn at least $1,923 gross per week, probably $2,307 gross per week and possibly up to $2,500 gross per week working as a Truck Driver (contractor) in Sydney driving a similar truck to the one he drove prior to his accident": Exhibit "C", p 77.
Whilst the WorkTogether report might otherwise provide some useful background to the assessment of the plaintiff's claim for economic loss, the starting point of the analysis must be the assessment of the plaintiff's most likely future circumstances but for his injury, as outlined in the preceding paragraphs: s 126 of the MAC Act.
I have concluded that it would have been unlikely the plaintiff would have operated a successful business as a self-employed contractor truck driver. I consider it more probable than not that the plaintiff's earnings as a truck driver would have been in the capacity of an employee truck driver in Sydney. This declared income is the most useful guide to his likely level of earnings in that capacity.
Having reviewed the theoretical considerations of the WorkTogether report, and having regard to the plaintiff's particular pre-accident circumstances, I consider that his declared actual pre-accident earnings as analysed at paragraphs [85] - [90] above, represent a more reliable guide to the assessment of the plaintiff's claim for loss of earnings and loss of earning capacity. When it comes to assessing damages I propose to assess the plaintiff's claim for loss of earnings and loss of earning capacity on that basis, in conjunction with the evidence of the plaintiff and the medical evidence touching upon that issue.

Circumstances of the subject accident

At the time of the accident the plaintiff's vehicle was stationary with the right hand indicator on when he was struck from behind by the defendant's truck. In those events the plaintiff expressed what he described as a "massive shock" when he experienced the impact of the collision, which caused him to be thrown around in the cabin of his truck whilst restrained by his seatbelt. In those events his vehicle was pushed forward a distance which he estimated to be about 20 metres: T15.3 - T15.43.
The plaintiff's Lumley's income protection insurance claim form, which he completed on 7 July 2010, described the collision into his stationary truck as being at full speed: Exhibit "3", p 2. It is not clear on the evidence as to how the plaintiff could have reasonably formed that view. Nevertheless, I accept that the collision between the two vehicles was sufficiently forceful to push his unladen 8 tonne truck forward a number of metres, at least 5 - 6 metres as claimed by the defendant, if not 20 metres as claimed by the plaintiff.
At T15.45 - T16.25 the plaintiff described the immediate aftermath of the collision as follows: "Q. Then what did you do then? A. I just I jumped out of the I undone my seatbelt and just I don't know what had happened, you know, just stationary and bang, you know, it's like I felt like I nearly came out of the windscreen. It just so I just undone my seatbelt and jumped straight out and the truck was pushed forward. I walked, you know, I walked across limping. There was a grass area in the gutter and just lied down in the gutter, sat there and everyone just, you know, there was factories everywhere, everywhere you know. Everyone just you know, was surrounded us. Q. A lot of people came around at that time? A. Yeah, a lot of people came around, there were factories everywhere. Q. Where did you finish up at after the accident? A. On the Q. You jumped out and you A. I jumped out you know, I'm not I jumped out, I didn't know what I felt, I was just numb everywhere, I didn't know what I felt, I was just shocked. You know, I felt pain in my knee, I don't know what I felt. Q. What's your memory of jumping out of the vehicle? A. I felt a sharp pain to my knee. Q. What knee? A. My right knee. And then when I sat, when I sat down on the grass, I just tried to lie, I just lied down on my back and I felt my left shoulder dislocate or come out of place. So I just sat, I was just shocked, it was a shock, I didn't know what you know, you know, I realised there was I realised I had an accident you know, someone had ran into the back of me but it was just overwhelming."
It appears from the above description that when the plaintiff jumped out of his vehicle as a reaction to the collision, he sustained what appears to have been a jarring injury to his right knee, as evidenced by his experience of a sharp pain in that knee.
In the defendant's evidence which described the events of the accident, I consider that he downplayed the significance of the impact of the collision, and suggested the impact was not as severe as that described by the plaintiff, stating that before the accident, and before braking, he had been travelling at about 30 - 40kph, and at the time of the accident, his vehicle had just "slid into" the plaintiff's vehicle: T108.44; T109.15. The defendant also disputed the distance over which the plaintiff's truck had been pushed forward as a result of the collision. The defendant estimated that in the collision, the plaintiff's vehicle had been pushed forward about 5 or 6 metres, but he acknowledged this was a guess: T109.36.
In considering that divergence in the evidence, I prefer and accept the evidence of the plaintiff. I take that view because I consider the defendant's version to involve a process of inaccurate reconstruction due to the circumstance of his opportunity for only limited observations in the lead-up to the collision as he had been looking away: T109.14; T113.37 - T114.5. He stated that he was jolted forward and winded: T115.49 - T116.3. I consider that in those combined circumstances, including the relatively short interval of time in which he had the opportunity to make accurate observations because he had not been keeping a proper lookout, his claimed recollection was less reliable than that of the plaintiff as to the events of the collision.
Instead, I consider that the plaintiff was in the better position to provide an accurate account. In my view, within his limited ability to express himself, the plaintiff's account was unembellished. I considered his evidence was spontaneous and truthful, whereas in contrast, the defendant sought to speculate on the plaintiff's actions in the form of reconstruction: T115.35.
The collision involved the centre of the defendant's truck striking the rear of the plaintiff's truck. The photographs of the defendant's vehicle show that the collision was of sufficient force to dislodge and deform the centre of the bumper bar at the front of the defendant's truck: Exhibit "D". The collision was also of sufficient force to wind the defendant. In my view, the dispute as to the distance over which the plaintiff's vehicle was pushed forward as a result of the collision is of little if any significance.
I will defer stating my findings as to the nature and the extent of the injuries the plaintiff sustained in the subject accident until after completing a review of the medical and allied evidence relating to that issue. That matter will be the subject of findings in respect of Issue 3.

Medical and allied reviews and assessments

Before arriving at factual findings on the nature and extent of the plaintiff's accident-related disabilities (Issue 4), as an aide to analysis, I have found it helpful to undertake a chronological review of the voluminous medical and allied evidence that was tendered as well as the evidence of the plaintiff as to his medical attendances. That approach is necessitated because of the non-sequential manner of assembly and the content of the medical material tendered on behalf of the plaintiff, and because of gaps that became evident within the medical evidence, as well as the plaintiff's limited ability to describe the relevant events.
That review, which follows, reveals some historical gaps in the evidence. This is marked by a lack of continuity, documentation and explanation of some of the historical events relating to the plaintiff's claimed injuries and disabilities and the treatment of those problems.
Although the accident occurred on 13 May 2009, the first documentary evidence from Dr Alameddin, the general practitioner whom the plaintiff consulted about the effects of the accident two days following the accident, appears in the chronology some 15 months after the event. That evidence is in the very limited form of a workcover certificate dated 2 August 2010: Exhibit "B", p 2.
Whilst it appears that there have been some early medical assessments by Dr Alameddin that were more contemporaneous to the time of the accident, there are no explanatory or historical reports or documents from him concerning such consultations.
On 15 May 2009, the plaintiff first consulted Dr Alameddin: Exhibit "E", p 5. The plaintiff continued to see Dr Alameddin on "several occasions" between 15 May 2009 and 27 August 2010: Exhibit "A", p 2. The plaintiff has had a total of 61 consultations with Dr Alameddin between 15 May 2009 and 9 October 2014: Exhibit "E", pages 5 - 6. The total cost of those consultations amounted to $4022: Exhibit "E", p 1. In those circumstances, it is surprising that there is no detailed medical report or contemporaneous clinical notes in evidence from Dr Alameddin in relation to those consultations. This is also unfortunate, given the plaintiff's limited ability to provide a cogent account of events.
On 30 May 2009, the plaintiff commenced receiving physiotherapy treatment to his right knee from Mr Ghassan Hijazi, of Lakemba Physiotherapy. Between that date and 25 September 2010, the records show that the plaintiff attended that physiotherapist for what was described as complex physiotherapy treatment on some 55 occasions at a total cost of $5525: Exhibit "B", pages 98 - 102. The defendant claims not all of those attendances were for accident-related treatments. However, no evidence has been presented to assist in undertaking a differential analysis on that issue.
On 7 September 2009, the plaintiff underwent an x-ray examination of the right knee at the referral of Dr Alameddin. This was reported as showing no acute fracture or dislocation, and no significant joint effusion or significant degenerative change: Exhibit "B", p 76.
On 14 November 2009, the plaintiff underwent x-rays of the cervical and lumbar spines, and a CT scan of the right knee at the referral of Dr Alameddin. The CT scans were reported as showing a small joint effusion and some stranding of the subcutaneous tissues in the pre-patellar region, giving the examining radiologist the impression of a mild pre-patellar bursitis of the right knee. No abnormalities were reported concerning the x-rays of the cervical and lumbar spines taken at that time: Exhibit "B", p 77.
On 5 July 2010, at the referral of Dr Alameddin, the plaintiff underwent an x-ray examination of the left shoulder and a CT scan of the cervical spine. No abnormalities were shown on the x-ray of the left shoulder. The cervical CT scan was reported as showing mild osteoarthritis in the left C6/7 facet joint: Exhibit "B", p 78.
On 6 July 2010, at the request of Dr Alameddin, the plaintiff underwent a CT scan of the lumbar spine, which was reported as showing some mild broad posterior bulging of the L4/5 disc, thickening of the ligamentum flavum and some mild narrowing of the central canal: Exhibit "B", p 79.
On 29 July 2010, Dr Alameddin issued a medical certificate recording the plaintiff's diagnosis as being "lower back pain. Right knee pain/pain due to bursitis, left shoulder pain": Exhibit "A", p 2.
On 2 August 2010, Dr Alameddin provided a workcover certificate of the plaintiff's unfitness for work between 2 June 2010 and 2 September 2010. This was in respect of a partially indecipherable diagnosis which appears to have included discopathology at an unstated level: Exhibit "B", p 2.
On 27 August 2010, which was some 15 months after the subject accident, the plaintiff was examined by Dr George Kirsh, an orthopaedic surgeon, for consideration of his left shoulder and right knee problems. The x-rays seen by Dr Kirsh were interpreted to be normal, and it appears that MRI scans of those areas were then ordered: Exhibit "B", p 12.
At that examination, Dr Kirsh found a full range of movement and absence of tenderness in the right knee, and he was uncertain of the diagnosis. Dr Kirsh recorded an imprecise history from the plaintiff that he had "injured his right knee in a truck accident on 13 May 2009. His knee has never been the same and he describes pain around the knee. He can run but as soon as he tries to change direction he has problems." Dr Kirsh also noted "recurrent left shoulder dislocation": Exhibit "B", p 12.
After clinical testing, Dr Kirsh suspected the plaintiff had either an anterior cruciate ligament tear or a posterior cruciate ligament tear, or possibly both. He ordered MRI scans of the right knee and right shoulder to try and sort out the problems.
On 22 September 2010, at the request of Dr Kirsh, the plaintiff underwent an MRI study of his right knee, which revealed a chronic anterior cruciate ligament rupture and a large peripheral tear of the medial meniscus with involvement of its dorsal margin and a meniscal flap arising from the free margin of the posterior horn protruding into the posterior notch. The lateral meniscus was reported to be intact. Mild chondral wear was reported in the posterior portion of the medial compartment: Exhibit "B", p 81.
There is a question as to when that latter right knee abnormality arose. There is no reasoned explanation as to when the anterior cruciate ligament damage and the tear of the medial meniscus had occurred. There was no expert evidence called to explain either why the x-rays taken on 27 August 2010 had not shown those abnormalities, or whether the pathology reported in those imaged areas represented the result of more recent injuries, or whether the difference in reporting may be explained by reference to the different scanning methods that were employed. These are questions on which the court cannot speculate or resolve without the guidance of expert evidence: Strinic v Singh [2009] NSWCA 15.
On 18 October 2010, at the referral of Dr Kirsh, the plaintiff underwent an MR arthrogram of the left shoulder which was reported as revealing an undisplaced tear of the posterior-inferior labrum: Exhibit "B", p 82.
On 22 October 2010, Dr Kirsh reviewed the plaintiff with the results of the recent right knee MRI scan and noted this demonstrated both an anterior cruciate ligament tear and a medial meniscal tear: Exhibit "B", p 13. On that review, no opinion was expressed on the timing or causative mechanisms for those right knee abnormalities.
On 2 November 2010, Dr Kirsh sought approval from the Transport Accident Commission for surgery to be performed on the plaintiff in the form of right anterior cruciate ligament reconstruction and a medial meniscal repair: Exhibit "B", p 14. The approval sought was ultimately given some 5 months later.
On 20 December 2010, the plaintiff was for the first time seen by Dr Vijay Maniam, an orthopaedic surgeon, at the referral of Dr Alameddin. The consultation was arranged for the purpose of consideration of the plaintiff's cervical, lumbar, right knee and left shoulder problems. Dr Maniam considered these problems to be the result of the subject motor vehicle accident: Exhibit "B", pages 23 - 24; p 41.
Departing from the chronological analysis for the moment, it appears that the details of that visit were first recorded much later in the form of a letter dated 14 December 2011 from Dr Maniam to the Transport Accident Commission in Victoria. That letter was in response to a questionnaire that had been sent to him by that organisation. Dr Maniam's letter of reply identified the date of his first consultation with the plaintiff, but not any other consultation that had taken place in the interim.
As requested by the Transport Accident Commission, Dr Maniam expressed an opinion on the cause of the plaintiff's injuries. He stated "The injuries exhibited by Mr Moussa were the result of the incident that occurred on 13/5/2009. The mechanism of injury is reasonable, and his presentation is concordant with the injuries suffered there of (sic)": Exhibit "B", p 24.
Dr Maniam's opinion dated 14 December 2011 did not expose for analysis the basis for his opinion on the mechanism of the plaintiff's injuries, or his reasons for holding that opinion.
However, much later, in a medico-legal report dated 14 November 2014, Dr Maniam cited the basis for his opinion on the connection between the accident and the onset of the plaintiff's knee injury as being that the plaintiff "jumped from his truck to get away from the wreckage, and in the process suffered injury to right knee (sic)": Exhibit "B", p 42.
Presumably, that mechanism described by Dr Maniam in his report dated 14 November 2014 also formed the historical basis of his original opinion on 14 December 2010, although that was not explored in the evidence.
Returning then to the chronological analysis interrupted at paragraph [142] above, on 24 December 2010, the plaintiff was first assessed by Centrelink for a job capacity assessment report. He was assessed as having a current work capacity of between 23 - 29 hours per week having regard to his medical conditions, which included the condition of depression, as well as the physical problems reported by the plaintiff at that time: Exhibit "B", pages 120 - 126.
On either 14 or 19 January 2011, the plaintiff experienced an episode whereby his right knee gave way causing him to fall and in the process, lacerate his right index finger when it came into contact with some sheet metal on the roadway: Dr Barrett, 5 December 2011, p 2.
Dr Maniam described the plaintiff's fall on that occasion as having occurred when the right knee gave way causing him to fall outwardly: Exhibit "B", p 43; Dr Barrett, report 5 December 2011, p 2. There was no medical evidence directed at analysing what had caused the plaintiff's right knee to give way on that occasion.
On 19 January 2011, the plaintiff underwent an operation for the repair of the flexor tendon on his right index finger. This was carried out by Dr Leana Teston at Hurstville Private Hospital: Exhibit "B", pages 21 - 22.
On 18 January 2011, which was the day before surgical repair of the cut to the right index finger, the plaintiff presented to Ms Rebecca Farr, a hand physiotherapist, for planning of post-operative treatment: Exhibit "B", p 103.
On 12 February 2011, the plaintiff was involved in a further motor vehicle accident. Other than noting the plaintiff's vehicle collided with the rear of another vehicle, the details of that accident were not further explored in the evidence. According to Exhibit "A", which was the chronology tendered in the plaintiff's case, the plaintiff consulted an unnamed general practitioner complaining of neck, back, left shoulder, chest and right knee pains in relation to that accident. This was described as being a minor or temporary aggravation, presumably of all previously painful injured parts. No claim for compensation was made in respect of that accident.
Dr Maniam took a history from the plaintiff concerning the accident on 12 February 2011. He recorded a history that there were only minor injuries sustained in that accident, which involved pain in the neck, lumbar spine and left shoulder, which was treated conservatively: Exhibit "B", p 42. That description was not particularly informative on the question of whether those minor injuries influenced the plaintiff's ongoing disabilities.
The only evidence in favour of the plaintiff's claim of only temporary aggravation of the underlying condition in relation to that accident seems to have come from the plaintiff himself, as there were no contemporary medical reports or documents describing the effects of that accident.
On 6 April 2011, the plaintiff was re-examined by the physiotherapist, Mr Hijazi, to assess his progress with ambulation, which was noted to be limited by pain. It was noted he was undertaking strengthening exercises in preparation for surgery, planned for 12 April 2011. It was also noted that the plaintiff was in need of psychological intervention: Exhibit "B", p 105.
On 11 April 2011, the plaintiff underwent a 12 week post-operative physiotherapy, examination and review of his right index finger. At that time it was noted that he had made good progress: Exhibit "B", p 104. The plaintiff's progress was apparently complicated by the fact that he had prematurely removed his hand splint: Exhibit "B", p 103.
On 12 April 2011, following the approval given by the Transport Accident Commission, the plaintiff underwent surgical procedures performed by Dr Kirsh at the St George Private Hospital for right anterior cruciate ligament reconstruction and medial meniscal repair: Exhibit "B", pages 15 - 16. This was to be the plaintiff's first knee operation. Dr Kirsh had sought the insurer's approval for this procedure some 5 months earlier: Exhibit "B", p 14. The delay between the request and approval for that procedure was not explained in the evidence.
The procedure, which was also the subject of some photographic images reproduced in Dr Kirsh's report of the operation, was described as follows: "The middle third of the patellar tendon was harvested and a graft was fashioned. Joint inspection revealed a bucket handle tear of the medial meniscus and this was repaired with 3 sutures. There was concurrent damage to the medial femoral condyle secondary to the injury and this was treated with chondroplasty. Barring the anterior cruciate ligament tear, the rest of the knee was normal. Tunnels were fashioned and then the graft was passed without any trouble. This was fixed with two bio-absorbable screws. The knee was stable then. One would hope, with good rehabilitation, this will settle Salaah's right knee problems."
In the above description, Dr Kirsh did not address the issue of what had caused the described meniscal tear which he had repaired on 12 April 2011. Neither did Dr Kirsh express his reasons for his opinion on the cause of what he described as concurrent damage to the medial femoral epicondyle as being "secondary to the injury": Exhibit "B", p 15.
It seems that whilst the plaintiff was under the care of Dr Kirsh between 12 April 2011 and 15 July 2011 (Exhibit "B", pages 15 - 17), the plaintiff was also seeing Dr Maniam for his orthopaedic concerns: Exhibit "B", p 83.
The reason for the plaintiff seeing two orthopaedic surgeons concurrently was not clearly explained in the evidence. It is possible that Dr Kirsh was treating the plaintiff's right knee and left shoulder (Exhibit "B", pages 81 - 82) and Dr Maniam was concerned with the management of the plaintiff's cervical spine complaints at that time: Exhibit "B", p 83.
On 13 April 2011, the plaintiff was discharged from St George Private Hospital wearing a brace following the ACL reconstruction surgery that had been performed by Dr Kirsh on the previous day: Exhibit "B", p 109.
The medical evidence tendered did not reveal whether the plaintiff had any medical or allied treatment in the period April to June 2011. There is no reference in the medical evidence of any clinical contact between Dr Maniam and the plaintiff in the 6 months between 15 June 2011 (Exhibit "B", p 83) and 1 December 2011: Exhibit "B", p 87.
In the period between 27 June 2011 and 15 July 2012, Dr Alameddin issued the plaintiff with a series of successive certificates of unfitness for work in relation to the diagnosed conditions of discopathy at L5/S1, right knee ligamentous injury, and neck pain: Exhibit "B", pages 3 - 11. During the above periods covered by Dr Alameddin's certificates, and in his certificates issued after 27 June 2011, Dr Alameddin noted that the plaintiff was awaiting surgery: Exhibit "B", pages 3 - 11.
On 16 June 2011, at the referral of Dr Maniam, the plaintiff underwent an MRI study of the cervical spine which revealed mild spondylitic changes: Exhibit "B", p 83.
On 21 June 2011, at the referral of Dr Maniam, the plaintiff underwent a further MRI study, this time of the lumbar spine, which was reported as showing no evidence of a disc protrusion or neural compression, but showing mild desiccation of the L4/5 disc: Exhibit "B", p 84.
In June 2011, the plaintiff had a consultation with Mr Walid Ahmad, a clinical psychologist. The consultation was arranged at the referral of Dr Alameddin. At that consultation, the plaintiff reported experiencing low mood, loss of enjoyment of daily activities, difficulty sleeping or staying asleep, nightmares, flashbacks, agitation, anger outbursts and panic attacks. That consultation was the first in a series of 26 treatment sessions with Mr Ahmad: Exhibit "B", pages 59 - 65. Mr Ahmad's reports require a close analysis in connection with the issue of the cause of the plaintiff's psychological problems and the validity of his opinions in that regard in view of the limited history he had obtained from the plaintiff.
On 15 July 2011, Dr Kirsh reviewed the plaintiff and noted that at that time there was full movement of the right knee, with appropriate hamstring strength, but that the plaintiff's quadriceps was weak, and that physiotherapy was required for both his shoulder and his knee problems: Exhibit "B", p 17.
On 14 September 2011, Dr Kirsh reviewed the plaintiff again and noted the plaintiff had experienced an episode of pain and swelling to his right knee associated with a "pop" sensation. There was no explanation in the evidence as to the medical significance of that "pop" episode. It may have been a patellar dislocation subluxation but there was no medical evidence that explained or made such a connection, either directly, or by reasonable inference.
There was no historical description either in Dr Kirsh's report or from the plaintiff in oral evidence, of the surrounding circumstances for that occurrence. Dr Kirsh's examination revealed the plaintiff's anterior cruciate ligament reconstruction to be intact, but that there was evidence of a patellar dislocation/subluxation. Physiotherapy was recommended for the patellar instability that was identified at that examination: Exhibit "B", p 18.
On 5 October 2011, the plaintiff was again assessed by Centrelink for a job capacity assessment report in circumstances where the treating general practitioner had recommended exemption of the plaintiff from employment/job seeking in order to fulfil his treatment requirements: Exhibit "B", pages 114 - 119. The medical evidence describing the detail of those treatment requirements was sparsely defined.
On 11 October 2011, at the referral of Dr Alameddin, the plaintiff underwent an x-ray of his right knee which was reported as showing a moderate joint effusion without signs of arthritis: Exhibit "B", p 85. There was no medical evidence describing the circumstances that led to this referral.
On 2 November 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Ian Barrett, a consultant orthopaedic surgeon. Dr Barrett diagnosed the plaintiff as having non-specific cervical pain, non-specific mechanical lumbar pain, and what he referred to as "?" (which I interpret as queried) soft tissue subluxation injury of the left shoulder, an anterior cruciate ligament injury to the right knee, and a traumatic laceration of the flexor tendon of the right index finger.
Dr Barrett considered that on the basis of the history he had obtained, the plaintiff's claimed disabilities were attributable to the subject accident. At that time, Dr Barrett considered that the plaintiff's condition had not yet stabilised: Exhibit "1", p 6.
The history summarised by Dr Barrett in his report dated 5 December 2011 bears close examination.
Dr Barrett recorded an item of history as to how the plaintiff's right knee problems had originally occurred, namely a "popped" sensation when he jumped out of his truck, landed on the road and also "dislocated" his left shoulder: Dr Barrett, 5 December 2011, p 2.
Dr Barrett reviewed the plaintiff's history of surgical treatment up to the time of his examination which was stated as having taken place on 2 November 2011. It appears from the entry at the foot of page 2 of Dr Barrett's report dated 5 December 2011, that the date is a typographical error for what should be read as 23 November 2011.
Significantly, at page 3 of Dr Barrett's report dated 5 December 2011, he recorded that the plaintiff had denied any prior injury to his neck, his left shoulder, his back or his right knee, and it was recorded that the plaintiff had been in "excellent health prior to the motor vehicle accident" which is the subject of these proceedings.
Plainly, the history obtained by Dr Barrett as summarised in the preceding paragraph was incorrect to a material degree, having regard to the previously described events of 7 February 2004, 30 March 2004, 5 December 2007 and 11 August 2008.
At page 3 of Dr Barrett's report dated 5 December 2011, he recorded the plaintiff's continuing symptoms at that time being as follows: 1. Continuing pain and intermittent swelling in the right knee; 2. The right knee "pops out" when he is asleep; 3. The right knee feels unstable and he now wears an articulated brace at all times; 4. The left shoulder feels stable but weak; 5. Insomnia, depression, and constant tiredness.
Dr Barrett's report dated 5 December 2011 must be read in light of the fact that contrary to what he had assumed, the plaintiff had been involved in prior incidents which had included injuries to his neck, left shoulder, back and right knee, and that he had previous problems with insomnia and depression as identified and summarised at paragraph [61] above.
Dr Barrett's answers to questions concerning the plaintiff's history, where he defined the plaintiff's injuries, where he described as "unremarkable" the pre-injury medical history, and where he identified the diagnosis and the attributability of the plaintiff's problems to the subject accident (report 5 December 2011, pages 5 - 6), must be read in light of the incomplete and inaccurate detail of that recorded history. Dr Barrett recognised this by stating: "On the basis of the history obtained Mr Moussa's disabilities appear to be wholly attributable to the motor vehicle accident": report 5 December 2011, p 6.
This issue will be revisited in connection with my findings on the nature and extent of the plaintiff's injuries and disabilities that were caused by the subject accident: Issues 3 and 6.
On 24 November 2011, the plaintiff underwent an MRI scan of his right knee: Exhibit "B", p 86. That scan revealed an intact graft of the anterior cruciate ligament repair and a large bucket handle tear of the right medial meniscus, for which Dr Maniam recommended the plaintiff undergo further surgery comprising an arthroscopy and a partial medial menisectomy: Exhibit "B", p 26. The cause of that tear is not the subject of reasoned evidence. This is of some significance given the plaintiff had undergone a repair of his torn right medial meniscus on 12 April 2011 which was performed by Dr Kirsh as described at paragraph [158] above.
Dr Maniam's notes record a consultation with the plaintiff on 27 November 2011, at which time, according to the notes, the plaintiff appeared to complain of left shoulder pain and clicks, and it was recorded that the shoulder had not popped out and was improving, but the right knee was popping out and giving out. Minimal swelling to the right knee was noted at that time. It was then noted that the plaintiff was going to have an MRI of his right knee.
At that time various symbols were used by Dr Maniam to describe the results of his examination of the plaintiff's right knee. I am not prepared to attempt an interpretation of all of those symbols within that part of his notes as they may be ambiguous or idiosyncratic to Dr Maniam.
On 29 November 2011, Dr Kirsh reviewed the plaintiff after the further MRI had been carried out, and which revealed the existence of a re-tear of the bucket handle tear of the plaintiff's right medial meniscus. Dr Kirsh noted that this had not healed and he recommended to the plaintiff that he should have another arthroscopy and menisectomy: Exhibit "B", p 19.
There was no evidence as to the mechanism by which the re-tear of the plaintiff's right medial meniscus had occurred.
On 30 November 2011, at the referral of Dr Maniam, the plaintiff underwent an MRI study of his left shoulder which was reported as showing an extensive posterior labral tear associated with fraying and irregularity of the superior labrum suggestive of a minor tear in that region: Exhibit "B", p 87.
On 6 December 2011, Dr Maniam noted that there had been a new MRI scan performed on the plaintiff's right knee. His notes appear to indicate that the anterior cruciate ligament was intact, there was a tear of the medial meniscus and wearing in other parts (described as MFC and MTP). His notes also indicate that an operation was either indicated or planned. At that time, other observations were made concerning a post-labral tear in the left shoulder, which was also the subject of a plan for operation.
The next entry in Dr Maniam's notes appears on 8 March 2012. At that time Dr Maniam noted there was an episode of left shoulder subluxation 3 days earlier, and that the right knee "gives on + off". After making some notes about the plaintiff's cervical and lumbar spine, and noting the results of MRI scans of those latter areas, Dr Maniam noted "For op L Sh + R knee".
Dr Maniam's reasoning for the above MRI referral was not in evidence either in the form of a report or by way of evidence from the plaintiff.
On 8 May 2012, the plaintiff's general practitioner, Dr Alameddin, prepared a certificate to the effect that the plaintiff's complaints over the previous 3 years concerning left shoulder pain and right knee pain were as a result of the subject accident. That certificate was not accompanied by a summary of the relevant history or by reasons. He recommended orthopaedic intervention for these problems: Exhibit "B", p 1.
Dr Alameddin's opinion as cited in the preceding paragraph has to be assessed for its weight because the certificate in question did not refer to or adopt the expert witness code, and the opinion did not state the supporting reasons that underpinned his opinion.
On 10 May 2012, in response to a request for him to do so, Dr Maniam wrote to the plaintiff's solicitors to advise that the plaintiff's injuries had not stabilised, and that he was awaiting approval, apparently from the Transport Accident Commission, for the procedures of arthroscopy and partial medial menisectomy of the right knee, and left shoulder arthroscopy for a posterior labral repair: Exhibit "B", pages 28 - 29.
On 27 May 2012 Dr Maniam saw the plaintiff in consultation again. Dr Maniam's note of that consultation states: "C/O going for op - R Knee - Previous ACL repairs Now: R Knee gives MRI - R Knee b. handle tear not working."
On 7 June 2012, Dr Maniam wrote to the plaintiff's solicitor to confirm his view that in the motor vehicle accident of 13 May 2009, in addition to the left shoulder and right knee injuries, the plaintiff had sustained musculo ligamentous strain to the cervical spine aggravating underlying degenerative disease, and a musculo ligamentous strain of the lumbar spine. Dr Maniam stated that in arriving at that diagnosis, an MR arthrogram of the left shoulder and an MRI of the right knee had been obtained: Exhibit "B", pages 30 - 31.
On 3 July 2012, Dr Maniam performed arthroscopic surgery to the plaintiff's right knee for re-repair of the bucket handle meniscal tear. This was the second operation on the plaintiff's right knee. A period of rest for 4 weeks was followed by a strengthening programme: Exhibit "B", pages 32 - 33.
In Dr Maniam's 3 July 2012 operation note of that procedure, he noted that the pre-operative diagnosis was of a large bucket handle tear of the right medial meniscus, as was seen on an MRI dated 25 November 2011, as well as grade II to III chondral wear in the medial compartment. The lateral and patello femoral compartments were described as being intact: Exhibit "B", p 32.
On 3 July 2012, Dr Maniam's operative findings were of an intact anterior cruciate ligament, a grade IV 2cm chondral loss in the medial femoral compartment, and a bucket handle tear of the medial meniscus: Exhibit "B", p 32.
In that operation, Dr Maniam noted that the bucket handle tear, which involved the posterior horn and body of the meniscus, appeared to be a recurrent tear after previous partial menisectomy: Exhibit "B", p 33. The manner in which the recurrent tear had occurred was not the subject of evidence. In that operation, Dr Maniam reduced the meniscus in volume and sutured the bucket handle tear: Exhibit "B", p 33.
The compelling conclusion from the above sequence of operative events on 3 July 2012 was that Dr Maniam had repaired the plaintiff's torn right medial meniscus. There was no evidence of anything untoward occurring to that knee in the foreshadowed 4 week period of rest and subsequent strengthening programme.
Dr Maniam's clinical note of 3 July 2012 recorded that the bucket handle tear of the right medial meniscus had been repaired. On 6 July 2012 he saw the plaintiff for a dressing change. On 27 July 2012 the plaintiff did not attend for a follow-up examination. The circumstances were not explained. On 9 August 2012 Dr Maniam's notes of consultation read: "c/o. pain ↑ ↓ Swelling : + Not. giving - No abn. move- O/E Rt Knee no eff PF ++ R (indecipherable entries) jt lines ✓ Com ✓"
On 18 August 2012, which was 2 weeks after the expiry of the 4 week rest period suggested by Dr Maniam, the plaintiff attended the emergency department of Canterbury Hospital complaining of acute right knee pain after he had turned over in bed that morning. It was stated that he had twisted his knee laterally, apparently in an external rotation, at which time he felt his right knee pop, along with the experience of medial knee pain: Exhibit "B", pages 110 - 111. It was recorded that the plaintiff had attended Canterbury Hospital at the suggestion of his local medical officer, whom I infer to have been Dr Alameddin: Exhibit "E", p 6.
That circumstance had led to the plaintiff experiencing increasing medial knee pain and being initially unable to bend the knee. After the onset of that problem, on subsequent bending of the knee, it was noted that the plaintiff reported that he considered the knee had not felt right. The entry in the hospital notes also recorded a history of the knee clicking and giving way.
At the time of that admission, the plaintiff expressed his unhappiness with his current treating surgeons and he requested the hospital to provide him with another referral. On examination by a nurse practitioner at Canterbury Hospital, a small effusion was seen in the right knee, with the detection or report of significant pain in the anterior joint line. An x-ray was taken but no fracture was seen.
On 18 August 2012, the recorded clinical impression was of an "acute on chronic" meniscal tear. The term "acute on chronic" meniscal tear gave no indication as to the cause of that described condition. That description has to be viewed in the light of the fact that it was the observation of an examining nurse, and not a medical practitioner, and it was not made after a consideration of the entire history of the plaintiff's right knee problems, and it was not supported by detailed reasons.
At that time, the plaintiff was advised to restrict his movements and activities until medically reviewed by an orthopaedic surgeon. An MRI was also suggested. The plaintiff was referred to his general practitioner and to Dr Sam MacDessi : Exhibit "B", pages 110 - 111. There were no reports in evidence from either the plaintiff's general practitioner or from Dr MacDessi in relation to that incident and its aftermath.
At this point, it is relevant to review more of the detail of the history recorded at the plaintiff's Canterbury Hospital admission on 18 August 2012.
In that regard, it was recorded that when the plaintiff had turned over in bed that morning he had twisted his right knee laterally, and externally rotated it, at which time he felt a "pop" in his right knee, and medial knee pain: Exhibit "B", p 110. That document went on to include the following historical text: "… Increasingly pain to the medial knee and uwas (sic) able to bed (sic) the knee Eventually able to start bending but hasnt felt right since then and pain on extending close to full extension (160) Hx of clucking (sic for either clicking or clunking) and giving way Most recently started to see physio post surgery Unhappy with current surgerons (sic) as this keeps happening and he feels that the total extent of his knee injury isnt being considered He saw his LMO this am who referred him to ED He was requesting to consider seeing Dr Merv Cross - but he Is retiring in Septmber (sic) and not taking on any more cases Examination well (frustrated) Right kjnee (sic) No gross effusion - email effusion seen., Old keyhole ites (sic) noted anterior knee Pain anterior medial jointline ++ Valgus and varus nad Flexion 90 degrees (not further encouraged after that) Extension to 160 degrees- unable to to (sic) completely straighten Meniscus tests not perforemed (sic) as suspect injury and not wantlong (sic) to exacerbate problem Xray: no acte (sic for acute) bony injury seen, Small effusion noted. No fractures IMPRESSION: Acute on chronic menlscal tear PLAN Ref to Dr Sam MacDessi for opinion and review consider MRI with GP prior to seeing Dr MacDessi return If worse analgesia knee injury advice given ICE packs +++ Notm to bend > 45 degrees Limited weight bearing as tolerated (sic) continue with crutches use Midful (sic) of lateral movements Not to drive until RV by Orthopaedic Surgeon"
The bundle of evidence comprising the material for assessment of the plaintiff's claim for out-of-pocket expenses shows that the plaintiff had seen Dr Maniam on 9 and 23 August 2012: Dr Maniam's notes and Exhibit "E", p 34. Dr Maniam's reports are silent on the detail of the plaintiff's 18 August 2012 knee problems.
When Dr Maniam saw the plaintiff on 23 August 2012, which was 5 days after the Canterbury Hospital attendance on 18 August 2012, he made a sparse note as follows: "c/o Rt Knee - locked pain ++ was seen at hosp w"
At that time, Dr Maniam's treatment plan was for an MRI scan of the right knee and an operation. The significance of that note was not explored in the evidence.
On 25 September 2012, at the referral of Dr Maniam, the plaintiff underwent an MRI study of his right knee, which revealed evidence of a prior medial menisectomy without evidence of a re-tear: Exhibit "B", p 89.
The next consultation recorded with Dr Alameddin was on 29 October 2012: Exhibit "E", p 6. No reports or notes from Dr Alameddin were tendered by either party concerning the events of 18 August 2012.
On 30 October 2012, at the referral of Dr Maniam, the plaintiff underwent an ultrasound of his right knee with an injection of intra-articular gadolinium in preparation for an MRI scan: Exhibit "B", p 93. On that date, at the referral of Dr Maniam, the plaintiff underwent a further MRI study of his right knee, which was reported as showing a bucket handle tear of the medial meniscus with the torn fragment displaced towards the intercondylar notch. A 6-7mm grade III chondral defect was also demonstrated in the central zone of the medial femoral condyle. The anterior cruciate ligament graft was seen to be intact. A meniscal cyst was also noted to be present: Exhibit "B", p 91.
A question arises as to whether, between 25 September 2012 (when no re-tear of the plaintiff's medial meniscus was seen on MRI) and 31 October 2012 (when a further gadolinium MRI scan showed a bucket handle tear of the medial meniscus with a displaced fragment), there had been a fresh injury that accounted for the difference in those findings, or whether they could be explained by reference to the different types of scans involved in those investigations. This is a matter for expert medical evidence, of which there was none. It is not a matter upon which a court can speculate with regard to medical issues relating to causation of damage: Strinic v Singh [2009] NSWCA 15.
On 2 November 2012 Dr Maniam noted that a new MRI noted a bucket handle tear and a cyst in the intercondylar notch (of the right knee), amongst other findings. An arthroscopy (of the left shoulder) was then planned. The significance or otherwise of the meniscal cyst was not explained in the evidence.
On 11 December 2012, Dr Maniam performed arthroscopic surgery to the plaintiff's left shoulder for repair of a labral tear. This was the first operation on the plaintiff's left shoulder, and the fourth operation overall. At that time, instability of the left shoulder joint was noted as a surgical finding. A period of rest for 4 weeks was recommended, followed by treatment by way of passive mobilisation: Exhibit "B", pages 34 - 35.
On 11 December 2012, the next entry in Dr Maniam's notes referred to an arthroscopic repair of the post-labral tear of the left shoulder. There was no mention of any treatment of the right knee on that occasion. The next history of right knee problems, namely "R knee gives" was on 18 February 2013.
On 12 December 2012, the plaintiff was discharged from Minchinbury Hospital by Dr Maniam following the left shoulder arthroscopy procedure and the posterior labral repair that had been carried out the previous day: Exhibit "B", p 112.
The medical evidence for the period December 2012 to February 2013 provides very little if any information as to what assessment or treatment had been undertaken in relation to the plaintiff's right knee in that period. In that regard, the evidence of the plaintiff's out-of-pocket expenses provides little assistance to shedding light on that issue: Exhibit "E", pages 1 - 42.
On 8 February 2013, Dr Maniam wrote to the Transport Accident Commission to advise that the plaintiff needed further surgery for partial right medial menisectomy following earlier failed repairs.
The injury on 18 August 2012 was not mentioned in that correspondence and there was no discussion on what had caused the previous repairs to fail, or at what point and in what circumstances they had failed.
However, it appears that in May 2013, the plaintiff underwent an operation on his right knee at Minchinbury Hospital. This appears to be so because the records show that on 7 May 2013, the plaintiff was discharged from Minchinbury Hospital after a partial medial menisectomy that was performed by Dr Maniam on that day: Exhibit "B", p 113. At that time, a torn meniscal fragment was excised: Exhibit "B", pages 36 - 40. This was the plaintiff's third operation on his right knee. There was little in the way of evidence of follow-up assessments of the right knee in the subsequent 10 weeks.
On 24 May 2013, Dr Maniam referred the plaintiff for physiotherapy treatment comprising mobilisation and strengthening: Exhibit "B", p 38.
On 5 June 2013, at the referral of Dr Maniam, the plaintiff underwent an MRI arthrogram of his left shoulder which was reported as showing an intact repaired posterior to inferior labrum tear without substantial change to the previous MR study, but also showing a more irregular 11mm long SLAP defect now evident at the location of the superior labrum: Exhibit "B", p 94.
In the interim there was no information available as to what treatment or assessment was being undertaken in consultation with the plaintiff's right knee problems.
On 2 July 2013, at the referral of his solicitor, the plaintiff was assessed by Dr Peter Giblin, a consultant orthopaedic surgeon: Exhibit "B", pages 169 - 177.
Dr Giblin obtained a history from the plaintiff that was essentially along the lines given by the plaintiff in his evidence. Dr Giblin assumed a history that the plaintiff had jumped out of his truck after the accident and had landed awkwardly thereby affecting his right knee, following which he went home complaining of pain in his right knee, his neck, his back and his left shoulder: Exhibit "B", p 169.
Dr Giblin also took a history of the plaintiff having sustained other injuries in other motor vehicle accidents: Exhibit "B", p 170.
The first such history was of the plaintiff driving a truck into a pole on 11 August 2008, thereby injuring his neck, left shoulder and right knee. The second such history was of the plaintiff having been a passenger in a motor vehicle accident of described mechanism on 12 February 2011. In that incident, Dr Giblin recounted the plaintiff's history of having encountered "a temporary aggravation of the symptoms in his neck and back and left shoulder". Dr Giblin went on to state that the plaintiff saw his GP for this, "but no formal treatment for this incident was undertaken and he (the plaintiff) believes that the effects of that injury have fully resolved": Exhibit "B", p 170.
Exhibit "E", the bundle of material tendered by the plaintiff in relation to his claim for out-of-pocket expenses, shows the plaintiff had purchased Voltaren and Codapane Forte, the latter being a prescription drug, but this was in the context of purchasing similar medications in the past (Digesic and Voltaren): Exhibit "E", p 24. The plaintiff had seen Dr Maniam on 18 January 2011, which was 25 days before the accident on 12 February 2011: Exhibit "E", p 34. It is not clear who prescribed the Codapane Forte the plaintiff purchased on 12 February 2011, or when this was prescribed for him.
It is difficult to assess the likely correctness of the plaintiff's evidence as to the minor or temporary effect of the injuries sustained in the motor vehicle accident of 12 November 2011 as there were no contemporaneous records tendered which could shed light on that matter in circumstances where the plaintiff's belief, as recorded by Dr Giblin, was that his injuries from that accident had fully resolved. That conclusion by the plaintiff was difficult to evaluate as the plaintiff still continued to have symptoms, at least in his neck, back and left shoulder.
In that regard, Dr Giblin listed the plaintiff's description of his symptoms at the consultation on 2 July 2013, as being in the following order of severity: "1. Low back ache with intermittent sharp stabbing pains; 2. Neck pain and stiffness with sharp pains; 3. Constant ache with clicking and restricted movement and loss of strength in this (sic) right knee; 4. Pain, stiffness and clicking in his left shoulder; 5. Pain and locking in his right index finger."
Dr Giblin's opinions as to the cause and the significance of those matters must be assessed in light of the events of 11 August 2008, 13 May 2009, 12 February 2011 and 18 August 2012.
Dr Giblin's report dated 2 July 2013 refers to him having provided the plaintiff with the opportunity to indicate whether anything should be added to the history he had taken. There was no such additional material recorded: Exhibit "B", p 173.
Dr Giblin considered that as a result of the subject accident, the plaintiff's provisional diagnosis was of a soft tissue injury to the plaintiff's right knee, left shoulder, cervical spine, lumbar spine, and a subsequent injury to the left index finger which had resulted from a fall due to knee instability. Dr Giblin considered that the plaintiff's symptoms would persist in a recurrent fashion, which was anticipated would be in terms of exacerbations and remission, with lifelong physical restrictions: Exhibit "B", p 174.
Dr Giblin's report dated 2 July 2013 did not deal with the fact of the plaintiff having experienced a twisting and popping sensation in his right knee on 18 August 2012, resulting in his presentation to Canterbury Hospital: Exhibit "B", pages 110 - 111.
That said, the evidence adduced by affidavit on the application to re-open disclosed that Dr Giblin had been provided with the discharge letter relating to that event. The explanation for Dr Giblin not dealing with the significance of the events of 18 August 2012 in his report dated 2 July 2013 appears to be that he had not been asked a relevant question in relation to that matter. Dr Giblin's report is silent on the subject of the significance or otherwise of the incident on 18 August 2012 in which the plaintiff was recorded as having injured his right knee. Without specific supporting evidence to that effect, I do not accept the proposition that Dr Giblin (and the other specialists for that matter) did not make reference to the Canterbury Hospital notes of 18 August 2012 because they considered those records and the event recorded in them to be irrelevant. Specific evidence to that effect would be required in order to support such a conclusion.
On 23 July 2013, at the referral of Dr Alameddin, the plaintiff underwent an MRI study of his left knee, which was reported as showing an undisplaced degenerative horizontal tear of the body and posterior horn of the lateral meniscus: Exhibit "B", p 96.
There is no evidence to suggest what had caused that tear, or when it had occurred.
On 9 October 2013, the plaintiff underwent a psychiatric assessment carried out on behalf of the Medical Assessment Service of the Motor Accidents Authority by Dr Alex Apler, a psychiatrist, who considered the plaintiff's whole person impairment in relation to his post-traumatic depression to be no greater than 10 per cent: Exhibit "B", pages 127 - 137.
Dr Apler considered that the plaintiff suffered from post-traumatic stress disorder with depression. He also thought that side effects of the plaintiff's medication, including sedation, fatigue and forgetfulness, may be contributing to the plaintiff's impairment. Dr Apler thought the plaintiff's psychiatric condition was unlikely to change in the following 12 months: Exhibit "B", p 134. He attributed that condition to the subject accident: Exhibit "B", p 136.
Dr Apler did not appear to have been provided with details of the incident of 18 August 2012 involving the plaintiff's right knee: Exhibit "B", pages 110 - 111.
Dr Apler's report dated 9 October 2013 indicated that his opinion had been based on an incomplete and incorrect psychological history. At page 2 of his report (at Exhibit "B", p 128) Dr Apler recorded that the plaintiff had told him he did not have a psychiatric injury from "a motor vehicle accident in 2004 or 2005". Dr Apler also recorded that the assault suffered by the plaintiff (in 2004) in which he sustained a fracture to his left orbit, did not result in the plaintiff having counselling. Dr Apler then summed up the plaintiff's pre-accident history by stating: "He had no history of psychiatric disorder or treatment before the accident.": Exhibit "B", p 128.
That summarised history is not consistent with the plaintiff having had a pre-accident history of anxiety, depression, and sleep disorder in 2004, and his experience of palpitations and panic attacks in 2006, and pre-accident anxiety about going to hospitals (Exhibit "B", p 129) as summarised at paragraph [61] above in connection with the plaintiff's pre-accident situation.
On 14 October 2013, the plaintiff underwent an orthopaedic assessment carried out on behalf of the Medical Assessment Service by Dr David Johnson, who considered the plaintiff's whole person impairment in relation to physical injuries to be greater than 10 per cent. Those injuries comprised, the soft tissue neck injury, soft tissue left shoulder injury with posterior glenohumeral subluxation, a ligamentous and medial meniscus injury to the right knee, and a ruptured flexor tendon in the right index finger: Exhibit "B", pages 138 - 158.
The history obtained by Dr Johnson was essentially as was related by the evidence given by the plaintiff. However, Dr Johnson did not record any details of the history of the incident of 18 August 2012, in which the plaintiff's right knee became twisted whilst he was in bed, thereby leading to a hospital admission and the need for further medical assessment. Dr Johnson's opinion has to be read in the light of that omitted item of history.
The affidavit evidence adduced at the application to re-open the case disclosed that the Canterbury Hospital discharge letter of 18 August 2012 had been included in the materials provided to Dr Johnson for the purposes of his assessment. There is no explanation as to why Dr Johnson did not comment upon that matter. It is possible that he had overlooked it. It is also possible that he did not consider it to be significant. It is not possible on the evidence to resolve that question.
On 24 October 2013, the plaintiff underwent a second orthopaedic examination by Dr Barrett at the request of the defendant. At that time Dr Barrett reiterated his earlier views on the plaintiff's diagnosis, and he added the further opinion that the plaintiff also had a degenerative tear of the medial meniscus of the left knee (which was not injured in the subject accident), and pain behaviour, which he also attributed to the accident. At that time, Dr Barrett also considered that the plaintiff's condition had not yet stabilised: Dr Barrett's report 30 October 2013, p 1.
In his second report that followed his 24 October 2013 examination of the plaintiff, Dr Barrett, confirmed the history the plaintiff had provided to him in the first consultation on either 2 or 23 November 2011: Dr Barrett's report 30 October 2013, pages 2 - 3.
In that second consultation, Dr Barrett reviewed the plaintiff's history and treatment for the period 24 November 2011 to 24 October 2013. That history (recorded between pages 2 - 3 of Dr Barrett's second report) made no mention of the events leading to the plaintiff's attendance at Canterbury Hospital on 18 August 2012: Exhibit "B", pages 110 - 111.
In his second report, Dr Barrett recorded the plaintiff's symptoms at the time of his re-examination as follows: "PRESENT SYMPTOMS Mr Moussa stated that he has pain in many areas of his body. He experiences neck pain and stiffness associated with frequent generalised headaches. He has severe pain, restriction, and weakness of his left shoulder. He said that he feels as if his left shoulder is "jammed". He has constant tightness and soreness in his back. He has constant severe pain in his right knee with a grinding sensation behind the kneecap. In the last six to twelve months his left knee has also been painful. He stated that his wife now has to help him shower and dress. Prior to the motor vehicle accident he usually helped his wife with housework, particularly the vacuuming and washing. His wife now does all the housework as well as the cooking. He is no longer able to attend to his garden or mow the lawns. He now pays to have this work done. He is able to drive a car. He used to enjoy sports such as Oztag football, jogging, trail-bike riding, and working out in the gym. He has been unable to continue those sports."
Clearly, the brief description of relevant events in the plaintiff's history, as recorded above, was not complete, and therefore, not entirely accurate.
On the basis of the history Dr Barrett had obtained from the plaintiff (at pages 7 - 10 of his second report) Dr Barrett expressed a number of opinions in answer to questions the defendant's solicitor had asked him to address. In that regard, he stated "the accident described could have caused the particular injuries", Dr Barrett also stated that on the basis of the history obtained the plaintiff's disabilities "are wholly attributable to the alleged accident".
Those matters, and the acceptability of Dr Barrett's conclusion as cited in the preceding paragraph, will be revisited in connection with the findings regarding Issue 3 and Issue 6 concerning the plaintiff's accident-related injuries and disabilities.
By November 2013, the plaintiff completed his series of 26 sessions with his treating psychologist, Mr Ahmad: Exhibit "B", p 65. On 26 November 2013, Mr Ahmad prepared a report summarising his contact with the plaintiff: Exhibit "B", pages 64 - 72.
Mr Ahmad's first letter relating to the plaintiff was dated 3 November 2011. It was addressed to Centrelink: Exhibit "B", p 59. Mr Ahmad reported at the initial appointment, the plaintiff had reported experiencing low mood, loss of enjoyment in daily activities, loss of appetite, difficulty sleeping or staying asleep, nightmares, flashbacks, agitation, anger outbursts, and panic attacks: Exhibit "B", p 59.
In his report dated 26 November 2013, Mr Ahmad noted that in addition to the physical disabilities already recorded by Dr Maniam and Dr Kirsh, the plaintiff was also suffering from psychological trauma consisting of depression and post-traumatic stress disorder. He also listed the medications the plaintiff was currently taking: Exhibit "B", p 66.
Mr Ahmad noted that that the plaintiff's psychological symptoms consisted of disruption of his social relationships, feelings of agitation and frustration which could arise quickly and without apparent reason, pain management difficulties, depression, particularly in association with no longer being involved in sporting activities. The depression was described as comprising loss of self-esteem and feelings of pointlessness. Mr Ahmad described the plaintiff as reporting loss of interest and pleasure from daily activities, reduced social interaction and not liking to leave the house, flashbacks, feelings of nervousness, anxiety and tension: Exhibit "B", pages 66 - 68.
Mr Ahmad considered that the plaintiff had a major depressive disorder and a post-traumatic stress disorder that had not improved over the course of treatments during a period of 2 years: Exhibit "B", pages 69 - 71.
Mr Ahmad considered that the continuation of the plaintiff's symptoms may have impacted upon the plaintiff's cognitive functioning and suggested continuation of medical, psychological and psychiatric treatments: Exhibit "B", pages 71 - 72.
There is an unresolved curiosity arising out of Mr Ahmad's reports. At Exhibit "B", p 66, Mr Ahmad set out a table of the plaintiff's medications which include Antenex and Zoloft for the management of anxiety, depression, panic and post-traumatic stress. These are plainly prescription drugs. It is also plain that as a psychologist, Mr Ahmad has no legal permit to prescribe such drugs. Whilst it is possible that Dr Alameddin or some other general practitioner has prescribed such drugs for the plaintiff, I discount that possibility in view of Mr Ahmad's concluding remarks as to the ongoing management of the plaintiff's psychological condition: Exhibit "B", p 72.
There, he suggests the plaintiff continue to see his "medical health practitioner", which I take to mean his general practitioner, and to continue psychological intervention and to "continue with psychiatrist". No psychiatrist or psychiatric treatment has been identified, Exhibit "E" makes no reference to a psychiatrist treating the plaintiff, and I therefore infer that the clinical information concerning the plaintiff's treatment remains incomplete because there was no report from the psychiatrist who had been referred to in Mr Ahmad's report. It seems more likely that if the plaintiff was seeing a psychiatrist, the psychiatrist and not the general practitioner would be prescribing or at least overseeing the prescription of psychotropic drugs.
A difficulty evident within Mr Ahmad's report, and a difficulty in the path of accepting his analysis, is that nowhere within his reports does he record any details of the plaintiff's pre-accident history of having had some similar problems of a psychological nature: Exhibit "B", pages 59 - 72. In particular, there was no record of Mr Ahmad having considered a history of the plaintiff's pre-accident psychological problems of the kind as summarised at paragraph [61] above. This must necessarily have an impact on the validity and acceptability of his assessment and the opinions expressed in his reports.
On 27 November 2013, the plaintiff underwent an assessment carried out on behalf of the Medical Assessment Service by Dr Michael McGlynn, a plastic surgeon, who considered the plaintiff's whole person impairment in relation to his surgical scarring to his right index finger, right knee and left shoulder, to be 1 per cent: Exhibit "B", pages 159 - 165.
On 12 December 2013, Assessor Allison Wood of the Medical Assessment Service collated the respective MAS assessments and recorded the plaintiff's combined whole person impairment at 22 per cent: Exhibit "B", pages 166 - 168.
Those MAS assessments did not include any commentary or evaluation of the significance of the history of the plaintiff having sustained a twisting injury to his right knee on 18 August 2012: Exhibit "B", pages 110 - 111.
On 14 January 2014, Dr Maniam wrote a detailed report to the plaintiff's solicitor concerning the history, diagnosis and prognosis of the plaintiff's condition: Exhibit "B", pages 41 - 52. On that occasion Dr Maniam advised that in his opinion, the plaintiff's neck, back, right finger, left shoulder, right knee problems, and his scarring, amounted to a whole person impairment assessment of 33 per cent: Exhibit "B", p 50.
Although it has ultimately transpired that Dr Maniam had been provided with a copy of the Canterbury Hospital discharge letter, his opinions in his report dated 14 January 2014 did not mention or deal with the events of 18 August 2012 as recorded in the discharge letter from that hospital: Exhibit "B", pages 110 - 111.
On 21 October 2014, at the request of Dr Alameddin, the physiotherapist Mr Hijazi, prepared a compilation of the plaintiff's physical restrictions for the purpose of identifying the physiotherapist's recommendations concerning the plaintiff's work restrictions: Exhibit "B", pages 106 - 108. His summary was in the following terms: "Left shoulder (Currently suffering from a superior labral tear - MRI report 01/12/2011) I recommend that Mr Moussa does not undertake any activity that requires repetitive movement, or sustained movement, or reaching movements He is unable to lift any weight with his left arm He cannot push or pull any weight above his waist height that is not on frictionless rollers The maximum load that his labral tear can tolerate is minimal, with excess load over 2 kg's will greatly impact on this damaged structure Right Knee: (Meniscus removal and reconstructive surgery - MRI 22/09/2012) I recommend that Mr Moussa does not undertake any activity that requires repetitive loading on the knee. This will greatly impact on the longevity of his knee as more wear and tear and likelihood for total knee replacement becomes necessary. I also recommend that Mr Moussa does not go up and down stairs repetitively as this may also impact on the damaged articular surfaces. Lower Back: (broad based posterior disc bulging L4/5 - MRI 06/07/2010) I recommend that Mr Moussa does not lift anything that my further strain his lower back. He is also unable to bend repetitively as this results in further strain to the lower back and surrounding structures. Neck: (Left CI arthritic changes associated with whiplash associated stiffness - CT 5/7/2010) Neck stiffness and headaches have limited Mr Moussa's ability to concentrate and be reactive to his surroundings. Constant neck turning and constant static positions are not conducive to Mr Moussa's condition. These postures involve upper neck and shoulder muscles which will fatigue quickly with Mr Moussa. The excess load on the shoulder will impact his tolerance to perform work. Mr Moussa needs enough rest breaks to accommodate this load. I recommend he has frequent rest breaks of up to 5 minutes for every 1 hour of tasks performed. Recommendations: Based on the above restrictions, I recommend that Mr Moussa can perform tasks that are non physical, non repetitive, non loading, with adequate rest breaks up to 4 hours per day, 3 days a week."
It is plain from the above account that Mr Hijazi had not considered any history of the plaintiff's right knee symptoms that were recorded as having occurred on 18 August 2012: Exhibit "B", pages 110 - 111. Whether this was because he did not know of those matters or whether he considered them to be insignificant or irrelevant is impossible to discern on the evidence tendered.
On 12 January 2015, at the request of his solicitor, the plaintiff was assessed by Dr Peter Giblin for a second time: Exhibit "B", pages 178 - 181.
In updating the plaintiff's history on 12 January 2015, Dr Giblin noted that the plaintiff's left knee had become symptomatic owing to an altered gait by which he had been favouring his right knee. Dr Giblin also noted that the MRI scan taken on 23 July 2013, which was some 3 weeks after Dr Giblin had last seen the plaintiff, showed an undisplaced horizontal tear in the posterior horn of the (right) medial meniscus. He also noted both knees were now symptomatic, and that the neck and left shoulder symptoms continued with stiffness and catching in the neck, and pain, with locking and slipping out of place in relation to the left shoulder: Exhibit "B", p 178.
On 22 January 2015, at the request of the solicitor for the plaintiff, Dr Giblin reviewed and commented upon his earlier reports, and in doing so, he adhered to his earlier opinions: Exhibit "B", pages 182 - 183. Dr Giblin's letter dated 22 January 2015 was apparently in response to the plaintiff's solicitor's request to clarify the plaintiff's symptoms and his earlier expressed opinion.
Dr Giblin responded to that request by confirming the plaintiff had complained of persisting symptoms in the right knee, his low back comprising of sharp stabbing pains and a burning sensation, reduced flexion in his right index finger, and aching with intermittent stabbing pains and a grinding sensation in the right knee. Dr Giblin also stated that his opinions expressed in his report dated 14 January 2015 remained unaltered: Exhibit "B", p 182.
Dr Giblin's report in relation to that re-examination did not refer to the incident involving the plaintiff's right knee on 18 August 2012: Exhibit "B", pages 110 - 111.
On 2 February 2015, Dr Maniam wrote a further detailed report to the plaintiff's solicitor concerning the plaintiff's condition. That report traversed the injuries to the cervical spine, lumbar spine, right knee, left shoulder, right forefinger, and his scarring: Exhibit "B", pages 53 - 58. In that report, Dr Maniam reviewed and re-iterated his earlier diagnosis and prognostic opinions.
At that time, Dr Maniam noted that the plaintiff had some minimal restrictions of the cervical spine, some marginal restrictions in the movement of the lumbar spine, some restricted and painful movements of the left shoulder, and some end range restriction of movement of the right knee. In addition, he noted the plaintiff was exhibiting some overuse problems in the left knee, with some pain on extreme flexion movements.
In that report, Dr Maniam expressed the view that the plaintiff will continue to experience symptoms and that his range of impairment ratings were unlikely to substantially change. He suggested and formulated a range of conservative treatment recommendations.
The cited opinions of Dr Maniam did not refer to the fact of the plaintiff's knee incident that occurred on 18 August 2012: Exhibit "B", pages 110 - 111.
Dr Maniam's report dated 2 February 2015 recounted a history that the plaintiff's fall at work on 5 December 2007 in which he sustained an injury to his left shoulder was treated conservatively. The report also recorded that the plaintiff's motor vehicle accident on 11 August 2008 which resulted in injuries to the neck, left shoulder and right knee had been conservatively treated: Exhibit "B", p 53.
At Exhibit "B", p 54, Dr Maniam's report dated 2 February 2015 included a cryptic statement as follows: "It would be relevant to take note of the fact that he (the plaintiff) underwent multiple accidents following the incident dated 13 May 2009."
A non sequitur then appears in Dr Maniam's report in that it goes on to describe four operative procedures that the plaintiff underwent between 12 April 2011 and 7 May 2013 rather than to discuss the significance of the multiple accidents he had briefly referred to in his preceding paragraph. In those events, Dr Maniam made no mention of the plaintiff's attendance at Canterbury Hospital on 18 August 2012 despite the fact that, as it turned out, Dr Maniam had beforehand been provided with a copy of the relevant discharge letter from that hospital.
These matters indicate that Dr Maniam's opinions must be read subject to taking those identified deficiencies into account, and by reference to the extent to which his report may be considered to be satisfactory, according to the requirements of UCPR Sch 7, cl 5(c), and UCPR r 31.25(1)(c) concerning the provision of reasons for expert opinions.
On 30 March 2015, the plaintiff underwent a third orthopaedic examination by Dr Barrett at the request of the defendant. In the absence of exceptional circumstances being shown by the defendant, on the objection of the plaintiff, the tender of the report of that examination was rejected because of the defendant's non-compliance with the rules concerning the timing for service of such reports: UCPR, r 31.18.
In analysing the evidence I propose to draw upon the events identified in the above chronology to base the findings required concerning the issues of the plaintiff's accident-related injuries and disabilities. Before doing so, it is convenient to first deal with the issue of alleged contributory negligence.

Issue 1 - Alleged contributory negligence

The defendant relies on a pleaded defence of contributory negligence alleging the plaintiff had failed to activate his right hand indicator before making a right turn: paragraph 2 of the defence filed on 22 August 2014.
The evidence in support of that allegation was the oral evidence of the defendant in which he said he did not see any activated right turn indicator at the rear of the plaintiff's vehicle in the events leading up to the accident. This does not necessarily mean that the plaintiff had not activated his right turn indicator as was claimed by the defendant.
In my assessment the defendant's evidence was not a sufficiently reliable or persuasive basis for a finding of contributory negligence. This is because immediately beforehand, the defendant had been distracted, and was looking away to his left as the plaintiff's vehicle was slowing down in preparation for the right turn. By the time the defendant had looked ahead again he was compelled to engage in a heavy braking manoeuvre in an unsuccessful effort to try and avoid the ensuing collision between the front of his truck and the rear of the plaintiff's truck.
In those circumstances, I consider that the defendant only had a limited opportunity to adequately observe the scene ahead. I consider that in invoking a claim that the plaintiff did not activate his right turn indicator, the defendant has engaged in an unreliable reconstruction of the events in question.
I do not regard the defendant's evidence as analysed above to be a sufficient basis upon which to displace the plaintiff's clear evidence in which he stated his actual recollection of having engaged his right turn indicator. The plaintiff's evidence on that issue was credible, and it was not otherwise improbable on its face, and I accept that the plaintiff had activated his right turn indicator before the collision at a time the defendant should have seen it had he been keeping a proper lookout.
Lest it be found on appeal that the above analysis is wrong, it remains necessary to deal with a remaining causation question that arises.
If it is assumed for the purpose of analysis, that the plaintiff's right turn indicator had not been engaged or operating in the events leading to the collision, I consider it is plain that such a circumstance had no relevant causal relationship to the occurrence of the collision.
I consider this to be the case because the collision between the two trucks occurred squarely front on rear. At the time the plaintiff's vehicle was not yet in the process of turning, and it was just slowing down, if not already stopped.
In those circumstances, it was the duty of the defendant to take such steps as were prudently required by the exercise of reasonable care, including taking into account and anticipating the effect of what was happening on the roadway ahead of him, and to accordingly adjust his speed and steering, in order to avoid an end-on collision: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228.
In my view, the question of whether or not an indicator was operating on the plaintiff's vehicle was an irrelevant consideration as the plaintiff's vehicle was not yet in the process of turning when the collision occurred. The defendant had simply failed to sufficiently monitor and observe what was occurring on the roadway ahead of him, namely, that the plaintiff's vehicle had slowed down.
As a result, the defendant failed to keep a proper lookout. Had he kept a proper lookout, he would have observed the plaintiff's vehicle in his path and applied his brakes in a timely and effective manner to stop before a collision occurred. In those events, he failed to appreciate his own vehicle was increasingly coming too close to the plaintiff's vehicle because he had failed to maintain a proper lookout. In my view the defendant's failure to do so was the sole cause of the collision.
On either analysis, I consider that the defence of alleged contributory negligence should be rejected.

Issue 2 - Plaintiff's pre-accident health status

The identification of the plaintiff's pre-accident health status is a necessary baseline for making findings on the nature and the extent of the plaintiff's accident-related injuries and disabilities. In a case such as this, where there is a history of relevant prior injuries and a dispute as to causation of ongoing disability, difficulties for assessment arise. Those difficulties are compounded by the paucity of relevant medical evidence as to the plaintiff's pre-accident situation in circumstances where he had previously encountered similar injuries.
The guiding legal principle for assessment of the fact of, and the cause of the plaintiff's ongoing 2009 accident-related problems is that the defendant must take the plaintiff as he is found, including any underlying physical or psychological vulnerabilities to developing a fresh injury, or the exacerbation of any pre-existing conditions: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.
Questions of exacerbation, aggravation and causation must be determined by reference to the principles to be found in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 and the provisions of s 5D of the CL Act and questions concerning the onus of proof that arises in relation to those principles: Shoalhaven City Council v Humphries [2013] NSWCA 390, at [87] - [90].
Since the plaintiff's unusual belief as to what had in fact constituted an injury was influenced by his limited understanding of such matters, as was evident from his explanation which exposed that limited understanding (T56.8 - T57.19), I consider that in assessing his pre-accident health status, it would be more reliable to refer to the available medical evidence to shed light upon such matters, rather than to rely only on his evidence.
As already described at paragraphs [60] - [63] above, the clinical records show that the plaintiff had been involved in a number of pre-accident incidents which had resulted in a need for him to seek out medical attention. That material has been identified and described to the very limited degree permitted by the content of those records, at paragraphs [67] - [71] above.
That evidence establishes that, in 2004 the plaintiff had sustained a head injury in an assault in a car park, which resulted in a fracture of the left orbit bone in his face; a workplace injury in 2007 involving injuries to his chest and a dislocated left shoulder; and a motor vehicle accident in August 2008, in which he injured his cervical spine and his right knee.
In relation to the 7 February 2004 assault, from that time up until the subject accident, there is no evidence that the plaintiff had any lasting physical difficulties from the fractured left orbit. The plaintiff stated, without contradiction, that he did not receive any treatment from any psychiatrist or psychologist in respect of that injury: T8.40. That of course does not necessarily mean that he did not have psychological problems in that period.
In relation to the 5 December 2007 injury, the plaintiff described the injury as having been temporary, minor, and that it "just went away" after some investigations organised by Dr Youssef, his general practitioner at the time: T10.25 - T10.39.
In relation to the 11 August 2008 motor vehicle accident, the plaintiff said he thought he had injured his chest, left shoulder, and was uncertain as to whether he had injured his right knee. He also said that after seeing his general practitioner and having some scans, he had made a full recovery from that incident: T11.21 - T12.2.
The reports which interpreted the pre-accident x-rays of the plaintiff's cervical spine, left shoulder and right knee, did not reveal any abnormalities in those areas. This is consistent with the plaintiff's contention to the effect that he did not have any lasting physical problems from the pre-accident injuries in 2004, 2007 and 2008, as identified at paragraphs [60] - [70].
The tendered medical evidence also disclosed that the plaintiff had experienced some significant pre-accident psychological problems. These consisted of anxiety, depression, insomnia, palpitations, panic attacks and family problems which were not the subject of medical evidence.
The sparsity of contemporaneous pre-accident medical evidence on the plaintiff's 2004, 2007 and 2008 physical injuries, and the identified psychological problems, makes it difficult to assess the reliability of the plaintiff's own evidence to the effect he was problem-free at the time of the subject accident. That difficulty arises because the plaintiff's conception of what amounted to an injury and a disability was not entirely logical: T56.8 - T57.19. This raises doubt about the appropriateness or the validity of his own descriptions.
In terms of the plaintiff's pre-accident physical functioning immediately before the subject accident, given the absence of contradictory evidence on those matters, I am prepared to accept his evidence on that issue. The unchallenged evidence was that the plaintiff had been working and pursuing his exercise regime without impairment as at the time of the subject accident.
The plaintiff's brother, Mr Bilal Moussa, who was close to the plaintiff, gave evidence that before the subject accident, the plaintiff was "very fit, very active, hardworking and very muscular built": T97.16. His observations of the plaintiff since the subject accident were that the plaintiff can't work, he has lost his hair, he has been stressing, he was in pain, and was always complaining about his body: T97.21 - T97.33. Mr Bilal Moussa denied the suggestion put to him in cross-examination to the effect that he had deliberately exaggerated his observations about the plaintiff's disabilities: T100.36 - T100.41.
I formed the conclusion that the evidence of Mr Bilal Moussa was of very limited assistance to an evaluation of the plaintiff's pre-accident health because it did not include any discussion of his knowledge or observations of the effects of the 2004, 2007 and 2008 incidents on the plaintiff as referred to previously.
In the absence of pre-accident medical evidence of the nature and extent of the treatment of the plaintiff's pre-accident psychological problems, I view with some reservation the suggestion that the plaintiff's pre-accident psychological problems had resolved before the subject accident.
I do not regard the plaintiff's own evidence to be a reliable guide to the assessment of those latter problems. This is because his evidence (at T17.47) which identified post-accident problems of "discomfort in sleeping, not sleeping right, broken sleep, you know, pain" did not also include any differential discussion on his pre-accident experience of such matters. This created difficulty for a causation analysis.
When Mr Bilal Moussa gave evidence, there were no questions directed to him concerning a "before and after" description of the plaintiff's psychological state. Mr Bilal Moussa's evidence on the plaintiff's psychological state only related to the period after the subject accident: T101.
In the period between the assault on the plaintiff on 7 February 2004 and the fall at work on 5 December 2007, as summarised at paragraph [60] above, the plaintiff experienced recorded complaints of depression, anxiety, insomnia and family problems. He also had recorded complaints of palpitations and panic attacks.
When those circumstances are compared to the history recorded in Mr Ahmad's materials at Exhibit "B", pages 59 - 72, it becomes starkly striking that Mr Ahmad's opinions did not either include or refer to those relevant pre-injury matters at all.
Instead, it appears that Mr Ahmad had assumed that the chronic and longterm psychological symptoms the plaintiff had reported to him when first seen on or about 3 August 2011, and which comprised depression, anxiety, and post-traumatic stress disorder, comprising low mood, loss of enjoyment of daily activities, loss of appetite, difficulty sleeping or staying asleep, nightmares, flashbacks, agitation, anger outbursts and panic attacks (Exhibit "B", p 59) were "as a result of chronic and long term psychological symptoms resulting from the impact of a motor vehicle accident": Exhibit "B", p 60.
Mr Ahmad's report identified the relevant accident as being that of 13 May 2009: Exhibit "B", p 60. On reading the evidence as a whole, that was an oversimplistic view of the plaintiff's history as by the time Mr Ahmad first saw the plaintiff at the referral of Dr Alameddin on 29 June 2011, and by the time Mr Ahmad's treatment of the plaintiff had commenced 3 weeks later on 20 July 2011 (Exhibit "B", p 60) the plaintiff had already been involved in a further accident on 12 February 2011.
Mr Ahmad's report makes no reference to the plaintiff's pre-accident psychological problems or to the other historical incidents in which the plaintiff suffered injury. Whether those omissions were due to the plaintiff not disclosing such matters on account of a view he may have had as to relevance or oversight, or whether Mr Ahmad had not explored the potential for such matters to be brought to light, is a matter that cannot be satisfactorily resolved. This is because Mr Ahmad was not called to give oral evidence, and also because the plaintiff was not asked questions on such matters.
Whilst Mr Ahmad expressed the unchallenged view that the plaintiff's post-traumatic stress disorder with the experience of nightmares and flashbacks was due to his experience "in the accident" (Exhibit "B", p 66) which I take to mean the accident on 13 May 2009, I consider that opinion should carry little if any evidentiary weight because it is based on a significantly incomplete history and it should therefore be seen to be unreliable. This is so because the plaintiff has had a number of incidents from which psychological problems ensued, and it is therefore necessary to differentiate between them as to consequent psychological disabilities.
Not only has Mr Ahmad wrongly assumed that the plaintiff had no other relevant incidents, as explained at paragraph [321] above, but he also wrongly assumed the correctness of the history he recorded of the plaintiff not having worked since the day of the subject accident on 13 May 2009: Exhibit "B", p 60.
That history was plainly incorrect, as the plaintiff had resumed work after a week following the accident: T17.38 - T17.50. He then continued in that work until June 2010 (T30.12 - T30.13), later described in cross-examination as being on 27 July 2010: T71.26 - T71.27. Those matters of incorrect work history would have undoubtedly influenced Mr Ahmad's view of the severity of the plaintiff's reported problems, as a prolonged period off work would very likely influence psychological problems of the kind reported by the plaintiff.
A further omission in the histories recorded in Mr Ahmad's reports is the complete absence of any mention, for whatever reason, of the plaintiff's motor vehicle accident that occurred in August 2008 in which the plaintiff acknowledged he sustained injuries to his right knee, left shoulder, his neck and lower back, which were the same areas he claimed to have injured in the subject accident: T42.22 - T42.37.
A further omission from Mr Ahmad's history is any reference to the injury suffered by the plaintiff on 12 February 2011: T23.15 - T23.45. Although the plaintiff claimed that incident was "nothing", it was nevertheless a relevant item of history that needed to be considered by the psychologist, namely the occurrence of another collision where the vehicle in which the plaintiff was travelling as a passenger drove into the vehicle in front: T23.19 - T23.42.
Mr Ahmad's report dated 26 November 2013 relates to some 26 consultations he had with the plaintiff between June 2011 and November 2013. I consider it remarkable that the above matters, either individually or in combination, did not feature in the plaintiff's clinical discussions with Mr Ahmad. Whether this was because the plaintiff thought that nothing turned on them, or whether he was not asked about them, is impossible to satisfactorily resolve in this context as Mr Ahmad was not called to give evidence.
I consider the above matters, including the significant omission of matters of relevant history render Mr Ahmad's reports and opinions unreliable as they are necessarily incomplete and they do not address the known and relevant facts and events which had affected the plaintiff.
In the circumstances that I have outlined above, without cogent corroborative evidence, I am not prepared to accept the plaintiff's evidence that he was free of psychological problems before the subject accident.
In summary, although there is evidence that the plaintiff had previously sustained injuries to his neck, back, left shoulder and right knee, as a result of accidents that occurred in 2007 and 2008, these being the areas affected by the subject accident on 13 May 2009, there is no evidence that those injuries continued to have a lasting effect on him by the time he sustained injury in the accident on 13 May 2009.
Evidence in support of that proposition is the fact that despite those earlier injuries it appears the plaintiff was physically fit, active and working without physical impairment at the time of the subject accident. There is no evidence to the contrary: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
In those circumstances, the plaintiff has satisfied the requirements of a "but for" test of causation pursuant to s 5D of the CL Act concerning proof of such matters. For the defendant to establish a contrary position, acceptable evidence constituting proof of that position would be required.

Issue 3 - Findings concerning accident-related injuries

Against the background of the plaintiff's pre-accident situation, I turn to the issue of determining the nature of the injuries the plaintiff sustained in the subject accident.
I accept the evidence of the plaintiff to the effect that in the subject accident, he felt shocked: T15.39; T16.13. I also accept that the impact forced him to move forward in his seatbelt (T15.30), and that in the immediate aftermath of the accident, he felt the need to jump out of his damaged truck in order to get away from it (T16.12), which caused him to painfully jar his right knee.
I accept that in those events the plaintiff experienced a sharp pain to his right knee: T16.17. I also accept that in addition to the plaintiff experiencing pain in his right knee, in the immediate aftermath of the accident, the plaintiff experienced pain in his left shoulder, his back, his neck and his chest: T17.14.
I accept that those cited portions of the plaintiff's evidence satisfactorily indicate that he sustained injuries to those parts of his body, as he has described. Unfortunately, these were the same areas he had injured in a motor vehicle accident in which he was involved in August 2008: T42.22 - T42.37.
As the plaintiff had been functioning without physical restrictions in the immediate pre-accident period, and in the absence of evidence that his pre-existing physical injuries from the prior incidents described had any lasting effects, it is reasonable to assume that the physical injuries described by the plaintiff, and summarised at paragraphs [336] - [337] above, were due to the subject accident, and not due to assumed pre-accident conditions.
In making that finding I have not overlooked the evidence that the plaintiff had a previous injury to his right knee that required an x-ray on 19 August 2008: Exhibit "B", p 75. In the absence of evidence of a pre-accident progressive pathology, it would be unreasonable to relate the plaintiff's post-accident complaints of right knee problems to the pre-accident period: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
The evidence of the plaintiff was that he had a full recovery from his prior physical injuries: T24.25; T53 - T54.22; T59.43. That evidence was not contradicted, and in respect of his physical as distinct from his psychological injuries, that evidence was not inherently improbable.
Whether the plaintiff's subsequent disabilities were wholly caused by the subject accident or merely aggravated by it is of little significance absent explanatory evidence to the contrary. In such circumstances, the defendant must take the plaintiff as he is found to be: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383.

Issue 4 - Effect of further accident on 12 February 2011

The accident in which the plaintiff was involved on 12 February 2011 occurred when the vehicle in which he was a passenger struck a stationary vehicle from behind whilst travelling at a speed that the plaintiff described as being not fast: T23.26.
In his evidence in chief, at T23.28 - T23.48, the plaintiff described the effects of that accident in the following terms: "Q. Your vehicle ran into the front of the other vehicle? A. Ran into the back of him. Q. Do you remember what happened to you? A. I don't know, I just, I just thought bit of discomfort, you know, bit of, you know. Q. Discomfort to what parts of your body? A. To the injuries were, you know. It wasn't, it wasn't it was a minor accident but it's because I've been through a lot, I just felt I was concerned, you know so I went back to my GP and discussed it. Q. You went to see your GP? A. Yeah, I went back to the GP and he said to me, no, it's just concerned, you know, it's nothing. Q. Did you make any claim in respect of that vehicle? A. No. Q. For any injuries you received? A. No." [Emphasis added]
Although the plaintiff was not cross-examined on the evidence cited in the immediately preceding paragraph, it must nevertheless be considered and interpreted in relation to the issues that have emerged for determination in the case. When that evidence is examined, it is apparent that the cited evidence of the plaintiff has been left somewhat vague and unclear. The only matters on which the plaintiff was cross-examined in connection with the 12 February 2011 accident concerned emotional issues that prevailed before that accident.
The plaintiff's evidence was that he had a perception of having a "…bit of discomfort. You know, bit of, you know…" in relation to the 12 February 2011 accident. His evidence did not describe the area or areas of such discomfort. The plaintiff was sufficiently concerned about the "discomfort" from that "minor accident" that he consulted his general practitioner. His account of the ensuing discussion he had with his general practitioner regarding his concerns bordered on the unintelligible: T23.40 - T23.42. It appears that the plaintiff sought to convey the impression that the effects of the 12 February 2011 accident amounted to "nothing". That evidence was left in an unclear state, as is evident from the passage of the transcript cited at paragraph [344] above.
It was not clear whether the plaintiff was expressing his own view on the effects of the 12 February 2011 accident, or whether he was seeking to convey the effect of the opinion of his general practitioner on that issue. The last question and answer cited in the preceding paragraph left that matter in an ambiguous state. The cited question implied the plaintiff had been injured to an extent that was unidentified, and the last answer cited in the extract at paragraph [344] above seemed to relate the fact that the plaintiff had made no claim for compensation. That state of confusion in the evidence was unhelpful to the required analysis.
Significantly, there was no evidence from the general practitioner whom the plaintiff had consulted in respect of his concerns about the accident. There was no explanation as to why no such evidence was obtained.
In this case, that potential evidence from the general practitioner was significantly absent on the question of whether the plaintiff's suggestion in his evidence, concerning the "minor" effects the accident on 12 February 2011 had on him, should be accepted.
In ordinary circumstances, it would not be necessary to look for corroboration of testimony of the kind given by the plaintiff. However, in the present case the inherent vagueness of the plaintiff's description, and the plaintiff's unusual views on what he considered constituted injury, sickness, bodily damage, disability or deficiency following an accident, compels such a course: T46.44; T52.29 - T53.45; T56.45; T57.6 - T57.19; T58.30.
The only firsthand source of the events of the 12 February 2011 accident came from the plaintiff. I considered that evidence, brief as it was, as cited at paragraph [345] above, to be unreliable. The only other details describing that accident comprised summaries in the tendered medical reports, where those summaries were obviously based on the plaintiff's descriptions. This calls into question the reliability of those accounts insofar as they state that the effects of the 12 February 2011 accident were only temporary in nature.
The fact that the plaintiff made no claim for compensation for injuries received in that accident does not necessarily support his claim of not having sustained significant injuries, or injuries with lasting effects, from that accident.
The significance of the 12 February 2011 accident is twofold. First, that accident occurred after the 13 May 2009 accident. Secondly, in his evidence the plaintiff acknowledged that the accident of 12 February 2011 caused him a "bit of discomfort", a matter that was not further pursued either in his evidence in chief or in cross-examination.
Before the accident on 12 February 2011, the plaintiff had relevant symptoms. Those symptoms consisted of feeling his body had changed: T17.46. He was having physiotherapy to his left shoulder, his back and his neck: T18.34. He was experiencing problems with his right knee giving way and collapsing on more than one occasion: T19.16; T20.31.
Unlike the position which followed the plaintiff's injuries from his pre-13 May 2009 accident, where he had recovered from those injuries before that accident, evidenced by the fact that he returned to his pre-injury work and his exercise activity, the plaintiff continued to have relevant physical symptoms both before and after the further accident of 12 February 2011. This is a confounding factor.
The plaintiff's evidence of having experienced only minor discomfort from the 12 February 2011 accident therefore requires careful evaluation because of the obvious limits to the reliability and accuracy of his vague and imprecise evidence as an historian concerning the accident on 12 February 2011, as cited at paragraph [345] above, and because of his confused understanding of what constituted injury, sickness or disability, as previously identified.
In those circumstances, one would normally turn to an evaluation of the medical evidence concerning the accident of 12 February 2011 in order to obtain some useful insight into the nature, extent and likely duration of any aggravation occasioned by that accident.
As the plaintiff had relevant symptoms as summarised at paragraph [354] above, he carries the onus of showing that the effect on the plaintiff of the 12 February 2011 accident was only temporary, minor, or "nothing" as he claimed.
In my view, the plaintiff's evidence on that issue should be significantly discounted, and should carry little persuasive weight, because of the flimsy non-expert and unreasoned foundation for his evidence on that issue, which does not of itself constitute adequate proof that the effects of the 12 February 2011 accident amounted to "nothing" as he asserted: T23.42.
In the absence of evidence from a medical expert adequately explaining the minor or temporary nature or effect of the "bit of discomfort" from the 12 February 2011 accident, and in the presence of similar symptoms continuing before and after the subject accident, it is equally possible that the aggravation was either of a temporary nature as claimed by the plaintiff, or that the 12 February 2011 accident was having a continuing effect. The tendered medical evidence on that issue was not contemporaneous, and was based on the plaintiff's limited insight into the question, and was therefore of no assistance in determining the question.
In those circumstances, it is for the plaintiff to prove the effects of the 12 February accident were only "minor", temporary or "nothing": s 5D of the CL Act. In cases where the state of the evidence permits equally balanced inferences, as is the case here and as identified in the preceding paragraph, a preference in favour of one affirmative conclusion over another must be resolved by positive and reasoned findings, and not by means of conjecture: Hunt v Knight Frank (NSW) Pty Ltd & Ors [2005] NSWCA 139, at [42] - [43], citing Luxton v Vines [1952] HCA 19, at p 398; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, at pages 480 - 481; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, at pages 304 - 305; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155, at pages 161 - 162.
In the circumstances of the present case, where there is no contemporaneous medical evidence to assist the resolution of that inquiry, I do not accept the proposition that the effects of the plaintiff's 12 February 2011 accident were only "minor", temporary or "nothing" as was suggested by the plaintiff: T23.42. In the absence of medical evidence that both considers and differentiates the relative causes of the plaintiff's complaints between the respective accidents, I find that the accident of 12 February 2011 has not been excluded as a material contribution to the plaintiff's ongoing physical complaints of discomfort from the accident of 13 May 2009.
In that regard, it is necessary to also consider and to accurately differentiate the plaintiff's psychological state as it affected the plaintiff before the 12 February 2011 accident, and afterwards. The evidence of the plaintiff was that the accident of 13 May 2009 had "mentally and physically" destroyed him: T89.40. There was no discussion from the plaintiff, or from anyone treating him, as to the psychological effects, if any, of the 12 February 2011 accident. The evidence of Mr Ahmad on this issue is of no assistance in clarifying that question. This is a confounding factor with regard to the assessment of damages as the required differentiation has not been achieved in the evidence.
I find that the accident involving the plaintiff on 12 February 2011 was a relevant matter to consider for the purposes of assessing whether that accident had a materially contributing effect on the post-13 May 2009 accident-related problems. In that regard, the evidence has been left in an unsatisfactory state. The defendant carries no onus in that regard. In considering the chronology of events, it is for the plaintiff in this case to prove that the effects of the 13 May 2009 accident continued unaffected notwithstanding the 12 February 2011 accident.
The plaintiff's evidence that the 12 February 2011 accident was "minor" and amounted to "nothing", was by itself, unconvincing.
I find the plaintiff's evidence on that issue to be unreliable. I also find the medical evidence that refers to the effects of the 12 February 2011 accident to be unreliable because it is dependent upon the history of the plaintiff which I have found to be unreliable in that respect. The unreliability of the medical evidence on that issue is demonstrated by the fact that it does not differentially discuss the effects of the 12 February 2011 accident, and it does not provide adequate reasons to support the plaintiff's view that the effect of the 12 February 2011 accident was only minor, or temporary in nature.
The failure of the representatives of the plaintiff to adduce differentiating medical evidence along the above lines, where such evidence could be reasonably assumed to have been available from the plaintiff's general practitioner, Dr Alameddin, remains unexplained: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; s 5D of the CL Act.
Those conclusions must necessarily operate as discounting factors when assessing damages.

Issue 5 - Significance of plaintiff's right knee injury on 18 August 2012

The defendant submitted that the plaintiff's ongoing right knee problems were un-related to the plaintiff's accident of 13 May 2009, and that those problems pre-dated that accident.
In the course of evaluating that submission by reference to the medical evidence, as already explained, it became apparent that the plaintiff had encountered a knee-twisting incident whilst turning in his bed on 18 August 2012.
The incident on 18 August 2012 caused the plaintiff to consult his treating general practitioner who sent him to be assessed at Canterbury Hospital, where he was assessed by a nurse practitioner. That presentation, has already been cited, described and summarised in detail at paragraphs [204] - [210] above.
Questions therefore arise from that evidence as to the causative significance of the incident of 18 August 2012, and as to whether that incident has in any material way causally influenced or affected the plaintiff's ongoing complaints of right knee problems.
Those questions must be evaluated by reference to the evidence of the plaintiff, and the content of the medical evidence that deals with the plaintiff's right knee problems. When evaluating that medical evidence, attention must be given to the assumptions upon which it is based, namely, whether the knee twisting incident that occurred on 18 August 2012 was at all considered in the analysis. A review of the respective reports reveals that the incident in question was not considered. Those circumstances therefore significantly undermine the reliability of the orthopaedic opinion concerning the cause of the plaintiff's ongoing right knee problems after 18 August 2012.
For the reasons already outlined at paragraph [350] above, I consider that the plaintiff's own description of the cause, nature and extent of his problems is not an entirely reliable means by which to assess those questions because of the simplistic manner in which he has viewed matters of injury and disability. I therefore consider the evidence comprising the more objective chronology of medically elicited history and treatment to be a more reliable guide to the assessment of such matters.
The starting point of this part of the analysis is the plaintiff's oral evidence concerning his right knee problems, which is reviewed as follows.
As explained at paragraphs [332] - [333] above, I have accepted the plaintiff's evidence that whatever was the extent of his pre-13 May 2009 right knee problems sustained in prior incidents that pre-dated that accident, he had effectively recovered from those disabilities and was not experiencing any restrictions in his work or in his exercise regime.
I also accept that the plaintiff has experienced significant and debilitating right knee problems from the time of the 13 May 2009 accident until the present time, and that those problems have undergone acute phases at times of surgery and post-surgical recovery.
In evaluating the causative significance of the plaintiff's knee twisting incident of 18 February 2012, it is useful to review the chronology of events affecting the right knee up until that time, which is as follows: 1. There were progressive general practitioner and orthopaedic specialist consultations and radiological investigations that led to the plaintiff having surgery to his right knee; 2. The first operation to the right knee was performed by Dr Kirsh on 12 April 2011, and consisted of an anterior right cruciate ligament repair and a medial meniscal repair. The meniscal repair comprised suturing of a bucket handle tear of the right medial meniscus: Exhibit "B", pages 15 - 16; 3. Between July and September 2011, the plaintiff was assessed by Dr Kirsh to have full movement in his right knee with adequate hamstring strength, but with weak quadriceps muscles: Exhibit "B", p17; 4. On 19 September 2011, the plaintiff reported an episode of pain and swelling in the right knee associated with a "pop" sensation in that knee, the cause of which was not precisely identified, and for which physiotherapy was prescribed for patellar instability for what Dr Kirsh considered to be patellar dislocation / subluxation: Exhibit "B", p18; 5. On 11 October 2011, at the referral of Dr Alameddin, the plaintiff had an x-ray of his right knee which showed a moderate joint effusion: Exhibit "B", p 85. No cause was identified for the effusion; 6. On 2 November 2011, Dr Barrett recorded a history from the plaintiff to the effect that his right knee "pops out" when he is asleep: Dr Barrett's report, 5 December 2011, p 3; 7. On 27 November 2011, Dr Maniam saw the plaintiff and recorded in his handwritten notes a history of the plaintiff's right knee "popping out", which then led him to recommend and arrange further imaging of that knee; 8. On 29 November 2011, following review of a fresh MRI scan of the right knee, and without specifying any particular damaging mechanism or event, Dr Kirsh identified what was described as a "re-tear" of the previous bucket handle tear of the right medial meniscus which had been repaired by him some 7 months earlier, on 12 April 2011, and which he said now required a further menisectomy: Exhibit "B", p19; 9. That further operation contemplated by Dr Kirsh did not occur immediately, and in fact it took place some 8 months later on 3 July 2012, when it was carried out by Dr Maniam: Exhibit "B", pages 32 - 33; 10. In the meantime, the plaintiff had remained under the general care of Dr Alameddin (Exhibit "B", p 1) from whom no relevant explanatory reports were tendered; 11. On 8 March 2012, Dr Maniam saw the plaintiff and recorded in his notes that the plaintiff's right knee "gives on + off", which indicated that for some unspecified time, the plaintiff had been experiencing the symptom of his right knee giving way when weight bearing; 12. On 27 May 2012, Dr Maniam recorded in his clinical notes a history that the plaintiff's right knee gives way, and that an MRI scan had revealed a bucket handle tear in that knee; 13. On 3 July 2012, Dr Maniam surgically re-repaired the bucket tear to the plaintiff's right medial meniscus by suturing that tear: Exhibit "B", pages 32 - 33. The only matters recorded in the evidence concerning the tear and its re-repair were as follows: 1. The tear was described as a large bucket handle tear, with evidence of some wear in the medial compartment; 2. The tear was in the region of the anterior horn and body of the meniscus, and it appeared to Dr Maniam to be a recurrent tear after the previous partial menisectomy. No opinion was proffered on the cause of the re-tear. 1. Following the 3 July 2012 operation, a 4 week period of post-operative rest then ensued, and the remainder of the plan was for that period of rest to be followed by a programme of strengthening exercises; 2. On 9 August 2012, which was some 5 weeks after the repair, Dr Maniam's handwritten consultation notes contain entries which I interpret as stating that although the plaintiff was complaining of pain in his right knee at that time, and although there was some swelling evident on examination, the knee was not giving way, and there were no abnormal movements detected in that knee.
Two conclusions follow from the above outline. First, the initial damage to the plaintiff's right anterior cruciate ligament and to the right medial meniscus, and the consequent need for surgical repairs as outlined above, may be reasonably assumed to have been necessitated by the accident on 13 May 2009. Secondly, on 3 July 2012, at the operation for re-repair of the bucket handle tear of the plaintiff's right medial meniscus, that re-repair was carried out successfully with the result that the knee no longer gave way and there were no abnormal movements in that knee. This is evidenced by Dr Maniam's note of his examination of the plaintiff on 9 August 2012 which is to that effect, as cited at sub-paragraph (15) of paragraph [378] above.
It is against that background that the events of 18 August 2012 require consideration.
The evidence of the precipitating events of 18 August 2012 that led the plaintiff to consult his general practitioner and then attend the Canterbury Hospital have been set out at paragraphs [204] - [210] above, and need not be repeated here.
The impression gained by the examining nurse at the Canterbury Hospital was recorded as being an "acute on chronic" meniscal tear. That description seemed to be in accordance with the plaintiff's history of having twisted his knee in an abnormal position in bed, thereby producing significant pain, discomfort, and restriction of movement, including an inability to bend his knee properly.
In the further submissions on 19 May 2015, on behalf of the plaintiff, it was argued that the twisting incident on 18 August 2012 was just a continuation of the earlier knee problems involving instability that the plaintiff had been experiencing. In my view, that submission involved an interpretation of the event that cannot be accepted without supporting medical evidence. A court cannot speculate upon the cause of such matters without explanatory expert evidence to guide the findings: Strinic v Singh [2009] NSWCA 15.
The description recorded by the examining nurse at Canterbury Hospital is completely at odds with the last medical description of the examination of the plaintiff's right knee, which was when Dr Maniam saw the plaintiff at a 5 week post-operative review on 9 August 2012.
The compelling inference to be drawn from a comparison of the description of the plaintiff's right knee on 9 August 2012, and the later description of his presentation and examination at the Canterbury Hospital some 9 days later, on 18 August 2012, is that not only had the plaintiff twisted his right knee during external rotation, and in that occurrence, he had thereby injured that knee.
The described mechanism of twisting the knee with external rotation is entirely different to the plaintiff's prior history of his knee giving way or popping out, as was recorded in pre-operative histories as summarised at sub-paragraphs (4), (6) and (7) of paragraph [378] above.
Expert medical evidence is not required in order to differentiate between the mechanisms of the knee giving way (which on a logical analysis, must assume some weight-bearing to have preceded the knee giving way) or of the knee having "popped out" spontaneously (which implies some kind of dislocation, and a twisting injury causing the knee to "pop") as those different mechanisms can be plainly understood for present purposes from their factual descriptions without the need for expert explanation.
Accordingly, on that analysis, I consider that the compelling inference is that the plaintiff sustained a further injury to his right knee on 18 August 2012 when he twisted that knee, which in turn produced the symptoms and signs recorded in the Canterbury Hospital Discharge Summary of that date: Exhibit "B", pages 110 - 111.
I find that twisting injury had caused the plaintiff to be completely unable to straighten his right knee in extension, which was the observation of the examining nurse: Exhibit "B", pages 110 - 111. That condition apparently then continued for some significant time, because when Dr Maniam saw the plaintiff 5 days later on 23 August 2012, he recorded in his notes that the plaintiff's right knee was both locked and painful, implying that this had been the case for the preceding several days.
From 23 August 2012 onwards, the medical assessment and management of the plaintiff's right knee condition remained under the care and supervision of Dr Maniam: Exhibit "E", pages 8 - 9.
In the ensuing weeks, the plaintiff had 2 further MRI scans of his right knee. A scan of the plaintiff's right knee dated 25 September 2012 revealed no evidence of a re-tear having occurred in relation to the meniscus. A further scan of that knee dated 30 October 2012, which involved the introduction of gadolinium as a contrast medium, revealed a bucket handle tear of the medial meniscus with a torn fragment displaced towards the intercondylar notch, together with the presence of a meniscal cyst in that position: Exhibit "B", p 91. The cause of the tear or meniscal cyst was not identified in the evidence.
On 7 May 2013, Dr Maniam again operated upon the plaintiff's right knee: Exhibit "B", p 54. At that operation, he excised a torn meniscal fragment from the plaintiff's right knee: Exhibit "B", p 39.
The summary and sequence appearing between paragraphs [378] - [392] above exhausts the available clinical information concerning the knee twisting incident on 18 August 2012, and its sequelae.
In order to obtain an understanding of the cause for that incident it is necessary to seek an explanation from the relevant commentaries as provided by the treating doctors. Unfortunately, there are no such commentaries.
Dr Alameddin's views on this subject are unfortunately unavailable, as his only "report" was in the form of a "To Whom It May Concern" letter which was dated 8 May 2012. There were no subsequent reports from him despite the fact that he was consulted by the plaintiff on a total of 61 occasions, 33 of those occasions being after the knee twisting incident dated 18 August 2012: Exhibit "E", pages 5 - 6. I infer from those circumstances that whatever evidence Dr Alameddin could give in the matter would not have advanced the plaintiff's case on this issue: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
It is therefore necessary to turn to the opinions of Dr Maniam, the treating and operating orthopaedic surgeon, whose relevant reports are respectively dated 7 June 2012, 14 January 2014 and 2 February 2015.
Dr Maniam's report to the plaintiff's solicitor dated 7 June 2012 referred to the operation performed by Dr Kirsh on 12 April 2011 in the following terms: "He underwent a surgical operation to the right knee on 12/4/2011 at the Bankstown District Hospital. The ACL was repaired but the bucket handle tear was not addressed." [Exhibit "B", p 31]
Dr Maniam's statement was plainly incorrect in two respects. First, the operation did not take place at Bankstown Hospital. Secondly, and more importantly, Dr Maniam incorrectly stated the plaintiff's meniscal tear had not been previously addressed. The incorrectness of that latter statement is evident from Dr Kirsh's letter dated 13 April 2011 to Dr Alameddin, which clearly stated that at the operation on 12 April 2011, Dr Kirsh had inspected the plaintiff's right knee joint which "revealed a bucket handle tear of the medial meniscus and this was repaired with 3 sutures": Exhibit "B", p 15. Accordingly, Dr Maniam's report stating that the plaintiff's bucket handle meniscal tear had not been addressed must be seen to be wrong. I therefore consider Dr Maniam's comments in that regard to be unreliable as a baseline for analysis.
At page 6 of his subsequent report dated 14 January 2014, Dr Maniam noted the previous bucket handle medial meniscus tear repair (which was in fact carried out by Dr Kirsh) and he went on to briefly state that the plaintiff went on to an "excision of the medial meniscus right knee after the repair … [on 12/4/2011 by Dr Kirsh] had failed": Exhibit "B", p 46.
At that point, Dr Maniam did not seek to reconcile his earlier incorrect view to the effect that the bucket handle tear had not been addressed.
Nowhere in Dr Maniam's opinion dated 14 January 2014, was there any discussion on the reasons for the stated failure of the earlier repair of the bucket handle tear. Similarly, there was no mention or consideration in that report of the fact of the right knee twisting incident that the plaintiff incurred on 18 August 2012.
Dr Maniam's report dated 2 February 2015 was based on his most recent examination of the plaintiff, which occurred on 10 October 2014: Exhibit "B", p 53.
That report reviewed Dr Maniam's previous diagnosis of "ACL tear right knee with bucket handle tear of the medial meniscus": Exhibit "B", p 54. In that report Dr Maniam stated "Arthroscopic surgery right knee after failure of suture of medial meniscus for subtotal menisectomy - 7/5/2013": Exhibit "B", p 54. The only accidents identified in Dr Maniam's reports were those of 5 December 2007, 11 August 2008, and 12 February 2011. In relation to that latter accident, Dr Maniam stated that this "involved a motor vehicle accident but there were only minor injuries and this related to the cervical spine, lumbar spine and left shoulder": Exhibit "B", p 54.
I infer that Dr Maniam obtained that history either from the plaintiff or from the assumptions he was asked to make by the instructing solicitor. It is significant to observe that the cited statement of history recorded by Dr Maniam was not reflected in the plaintiff's oral evidence. The cited statement, if correct, suggests that the multiple sites of injury sustained by the plaintiff on 12 February 2011 were understated by the plaintiff in his evidence.
It is relevant to observe that the lastmentioned quote from Dr Maniam's report appeared in a paragraph in which it was stated that it was relevant to take note of the fact that the plaintiff "underwent multiple accidents following the incident dated 13/5/2009": Exhibit "B", p 54.
However, that report made no reference to the right knee twisting incident incurred by the plaintiff on 18 August 2012.
I therefore find that Dr Maniam's reports provide no assistance in analysing or understanding the cause or significance of the plaintiff's 18 August 2012 knee twisting incident. His stated view to the effect that the plaintiff's meniscal tear had not been addressed, as he originally thought was the case, was plainly wrong. His other stated view that the previous repair of the plaintiff's meniscal tear had failed (without ascribing or exploring a mechanism for such failure) appears to have been given without a full understanding of the facts, namely the factual detail of the occurrence of the 18 August 2012 knee twisting incident. Dr Maniam's "failure" mechanism should therefore be given little weight insofar as it is suggested the "failure" was a natural and probable consequence of the 13 May 2009 injury.
The opinions of Dr Giblin, Dr John and Dr Barrett are non-contributory on the issue of determining the cause of the plaintiff's ongoing right knee complaints. This is because those doctors did not discuss the relevant item of history concerning the plaintiff's 18 August 2012 knee twisting incident.
On reviewing the chronology of the plaintiff's right knee complaints, and the treatment he received for those problems, in the absence of medical evidence to the contrary, I find that the operation on the plaintiff's right knee performed by Dr Maniam on 3 July 2012 was successful in addressing the plaintiff's problems of his right knee "popping out" and giving way. This is evidenced by the fact that between 3 July 2012 and 9 August 2012, and until 18 August 2012 for that matter, there was no evidence in the form of recorded complaints by the plaintiff to the effect that those problems had recurred in the manner the plaintiff had experienced before he twisted his right knee on that latter date.
I find that the right knee twisting incident on 18 August 2012 represented a significant source of further injury to that knee, and that from 18 August 2012, the effects of such further injury continued as a significant source of the plaintiff's continuing right knee disabilities.
Those findings necessarily create difficulties for the assessment of damages because on the state of the evidence, the plaintiff has not proven which of his right knee complaints are due to the effects of the 13 May 2009 accident (as influenced by the effects of the re-repair surgery carried out by Dr Maniam on 3 July 2012), in contrast to which of his right knee complaints relate only to the 18 August 2012 knee twisting incident and its sequelae: s 5D of the CL Act; Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]. Without cogent evidence from the plaintiff on that subject, or without specific expert evidence differentially delineating those effects, a court cannot speculate on such matters: Strinic v Singh [2009] NSWCA 15.

Issue 6 - Findings on accident-related disabilities

The plaintiff stated that from the first week after the subject accident, he thought his body had changed" and that he was "uncomfortable in sleeping, [he was] not sleeping right, [with] broken sleep [and that he was in] pain": T17.47. He also stated that he felt the subject accident had "mentally and physically destroyed" him: T89.40.
The plaintiff stated that "because of my multiple injuries, I am confused to see what holds for me now": T27.48 - T27.49. There was significant confusion in his evidence concerning his ongoing disabilities. There was also a lack of clarity as to which of the various accidents and incidents he had incurred, were the material causes of his ongoing disabilities.
Where such lack of clarity arises from the evidence, adapting what was said on that subject in Larson v Commissioner of Police [2004] NSWCA 126, at [48], the question to be addressed is whether the plaintiff, who indisputably bears the onus of proof, has on the balance of probabilities discharged the onus of showing that his claimed ongoing disabilities were caused by the subject accident: see also, s 5D of the CL Act.
In such cases, a lack of clarity on such matters may at times be capable of resolution through the guidance of evidence from medical experts. Regrettably in this case, such assistance was not available. This has added a significant burden to the task of evaluating both the evidence of the plaintiff, and the evidence comprising the medical reports.
In such circumstances, a court is obliged to grapple with the problem in order to undertake an evaluation of the issues in light of the evidence as best can be achieved: Majkic v Bonnano [2008] NSWCA 253, at [26]; Cupac v Cannone [2015] NSWCA 114, at [17] - [18].
The required task is to engage with a reasoned analysis of the evidence in order to resolve contested issues of fact. Where the evidence does not permit a rational acceptance of one conflicting position over another, the party with the onus must fail: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48].
Ordinarily, where there are no issues concerning the credibility and the reliability of testimony, findings as to disability can be based on the historical record of complaints of disability as set out in medical reports: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
However, In this case, as has already been indicated in paragraphs [52] - [53] above, the plaintiff's historical account of his injuries and disabilities, as recounted in his evidence, has been shown to be of doubtful reliability. In those circumstances, there is no sound basis upon which to assume that the plaintiff's account, which was relied upon by the examining medical practitioners, was not similarly affected. I therefore consider it necessary in this case to take a more cautious approach to the plaintiff's evidence than that which was taken in Daw v Toyworld (NSW) Pty Ltd, as cited in paragraph [418] above.
In the paragraphs that now follow, under the respective sub-headings that appear below, I set out my findings on the plaintiff's claimed accident-related disabilities.

Right index finger

The plaintiff stated that after he had returned to work shortly after the subject accident his [right] knee collapsed: T19.31. This caused him to fall and lacerate his right index finger which required surgical repair and remedial physiotherapy. I accept that the plaintiff fell on that occasion due to the instability of his right knee as a result of the subject accident.
I accept the plaintiff's evidence to the effect that as a result of the subject accident, and as a result of the related subsequent fall when he injured his right index finger, he still has scarring, stiffness and restriction in his ability move and to oppose his right index finger in a pinching movement: T20.25. I accept that this problem continues to adversely affect the manual dexterity of the plaintiff's right hand.

Chest

Although the plaintiff injured his chest in the subject accident, he no longer appears to have any disability with regard to his chest. No questions were asked of him about any aftermath from his chest injury. I therefore find that any injury he sustained to his chest was of short-term effect only, and without lasting disabilities.

Neck

After the subject accident, the plaintiff complained of pain in his neck, for which he received physiotherapy treatment: T18.23 - T18.26. The medical and allied reports show that over time, the plaintiff continued to make complaints about neck pain and discomfort. The plaintiff summed up his current neck problems as being not normal, and consisting of stiffness in the neck on waking in the morning: T28.4 - T28.7.
That evidence appears to have been contradicted by some oral evidence given by the plaintiff in answer to questions asked of him in cross-examination, in which he stated that after a couple of days his neck was back to normal: T58.37 - T58.38.
In seeking to reconcile that apparent conflict in the evidence, I consider that the plaintiff's concession in cross-examination (at T58.37) as cited in the immediately preceding paragraph arose because of a misunderstanding on his part. In my view, on a fair reading of the plaintiff's evidence, he was seeking to convey that prior to the subject accident his neck had recovered from previous injury from earlier accidents, and that his neck was back to the normal state it was in before the subject accident.
A difficulty with some of the plaintiff's evidence and with his provision of history to examining medical practitioners concerning matters of disability is that it involved elements of unreliability.
For example, the plaintiff's evidence at T28.6 to the effect that he never had neck, back and left shoulder problems before the subject accident was factually and historically incorrect. That evidence was also in conflict with his evidence to the contrary (at T42.22 - T42.37) with regard to his prior experience of neck, back, left shoulder and right knee problems.
However, I accept the plaintiff's evidence (at T52.35; T53.41; T53.45 and T54.22) that the neck problems he experienced before the 13 May 2009 accident were temporary, and that he achieved a full recovery from those problems after experiencing a period of neck tightness. I consider that the plaintiff's evidence that he returned to his work and his exercise regime justifies that view. I consider that the confusion in the plaintiff's evidence on these matters arose because he is not an entirely reliable historian, and because he has difficulty in clearly expressing himself.
That said, the plaintiff's ongoing neck problems appear to be of a much lesser intensity and effect when compared to those he had experienced at an earlier stage in the immediate post-accident period after the 13 May 2009 accident.
That view is supported by Dr Maniam's findings stated in his report dated 2 February 2015, in which he noted the plaintiff currently had some minimal restrictions in his cervical spine. I accept Dr Maniam's view that those symptoms will continue without likelihood of substantial change. I accept Dr Maniam's view that the plaintiff's neck problems are unlikely to disappear because degenerative change was expected to occur: Exhibit "B", p 54.
The overall impression I gain from Dr Maniam's opinion in that respect is that the plaintiff's residual neck symptoms are low grade, and are only minimally disabling to him.
I am satisfied that were it not for the accident on 13 May 2009, the plaintiff's pre-accident neck problems, which had by then resolved, would not have been the cause of the plaintiff's current ongoing neck symptoms but for the 13 May 2009 accident: s 5D of the CL Act.
In coming to that conclusion, I have not overlooked the fact that post-accident x-rays have revealed that the plaintiff has degenerative changes in his cervical spine.
As a consequence of Dr Maniam not being called to explain the content of his reports, to a degree, his evidence has been left in an unsatisfactory state regarding the plaintiff's neck problems.
This is because there has been an unexplained shift in Dr Maniam's successive opinions on the significance of degenerative changes in the plaintiff's cervical spine, as is explained in the following paragraphs.
Dr Maniam's opinion dated 7 June 2012 stated that the plaintiff had suffered musculo ligamentous strain to his cervical spine with aggravation of underlying degenerative disease: Exhibit "B", p 30.
In contrast, in Dr Maniam's report dated 14 January 2014, without explanation, his above cited opinion shifted to the formulation that the postulated musculo ligamentous strain of the plaintiff's cervical spine had "precipitated" early degenerative disease: Exhibit "B", p 46. The latter formulation was repeated in Dr Maniam's later report dated 2 February 2015: Exhibit "B", p 54. The shift in formulation from "aggravation" to "precipitation" was left unexplained, and that difference remains irreconcilable without an explanatory medical opinion. Inferences cannot be drawn on such medical matters to resolve that conflict without the guidance of expert evidence: Strinic v Singh [2009] NSWCA 15.
That unfortunate hiatus in the medical evidence provided no assistance to the task of determining the issue of when the degenerative changes occurred in the plaintiff's cervical spine and when those changes became symptomatic. That issue is not capable of resolution on the state of the evidence as the exercise included the interpretation of x-rays. The two cited views of Dr Maniam cannot stand together and be accepted. The plaintiff bears the evidentiary onus on that matter. That onus has not been discharged: s 5D of the CL Act.
It is sufficient to record the finding that before the subject accident, the plaintiff had recovered from the effects of his earlier neck injuries that had preceded the subject accident, and that his neck was no longer symptomatic at the time the subject accident occurred.
For the defendant to sustain a submission that the plaintiff had pre-existing neck injuries which are the source of his ongoing neck symptoms, and that the 13 May 2009 accident was only a temporary aggravation, the defendant carried the burden of adducing evidence to that effect. In this case, that burden has not been discharged: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
Whilst there is no evidence to contradict Dr Maniam's opinion dated 7 June 2012 to the effect that the subject accident caused the plaintiff to suffer a musculo ligamentous strain to his cervical spine aggravating underlying degenerative disease (Exhibit "B", p 30) for the reasons already outlined and explained, that opinion cannot be fully accepted insofar as the aggravation of a degenerative change component of it is concerned because, without explanation or reconciliation, it conflicts with another of Dr Maniam's opinions that the injury in question precipitated the degenerative changes. The evidence does not provide a reasonable means by which to choose from those conflicting formulations. In this case, the burden of difficulty created by that circumstance falls on the plaintiff: Larson v Commissioner of Police [2004] NSWCA 126, at [48].
I therefore accept as reasonable Dr Maniam's opinion that in the subject accident, the plaintiff suffered a musculo ligamentous strain to his cervical spine although there is some confusion as to when the described underlying degenerative disease commenced: Exhibit "B", p 30. I find that this has led to the plaintiff incurring ongoing low grade symptoms of pain, discomfort, stiffness, and restriction of movement in his neck.
Having regard to the findings regarding Issue 6 concerning the aggravating effects of the 12 February 2011 accident which involved the plaintiff, as outlined in paragraphs [343] - [368] above, on the evidence, those findings can only apply without qualification up until the occurrence of the accident on 12 February 2011. After that date a qualification to that finding is required because of the aggravating effects of the accident.
Thereafter, I find that the plaintiff's neck symptoms continued in the form of an added level of "discomfort" due to the effects of the 12 February 2011 accident. Unfortunately, the evidence does not permit a more precise formulation of the extent of the aggravation other than to say that the 12 February 2011 accident appears to have made a material contribution to the plaintiff's ongoing neck symptoms.
The reasons standing in the path of achieving a more precise formulation to differentiate the extent to which the plaintiff's neck symptoms are due to the effects of the subject accident, and the extent to which they are due to the aggravating effects of the accident on 12 February 2011, have already been outlined in connection with the consideration of Issue 4, between paragraphs [343] - [368] above.
The burden of the difficulty that arises from these circumstances must fall on the plaintiff in this case: s 5D of the CL Act; Larson v Commissioner of Police [2004] NSWCA 126, at [48].

Back

As was the case with his neck, after the subject accident, the plaintiff also complained of pain in his back, for which he also received physiotherapy treatment: T17.14; T18.34; T28.30 - T28.32. He described the back injury as a strain which did not prevent him from working: T59.9 - T59.17.
The plaintiff summed up the current problems he was experiencing with his back as consisting of stiffness and tightness in the back on waking in the morning, which he never had before, and which provides him with a disincentive for getting up early, as he used to do: T28.9 - T28.14. It also causes him sleep difficulties: T28.13.
As was the case with the plaintiff's evidence concerning his neck problems, there was some confusion in his evidence as to whether his back had recovered from the strain it had sustained in the 13 May 2009 accident. On a fair reading of his evidence, I consider that what the plaintiff was intending to convey (at T58 - T60) was that he had recovered from the back problems he had experienced before the 13 May 2009 accident, namely from the 2007 and 2008 accidents, and that his ongoing back problems related to the subject accident. The ambiguity appears to have arisen because the plaintiff's answer on that subject was cut off by the cross-examiner: T59.43.
The medical and allied reports also show that over time, and when the plaintiff was medically examined, he continued to complain of back pains and discomfort. Dr Maniam's report dated 2 February 2015 noted that the plaintiff's lumbar spine symptoms were minimal, and that the plaintiff's lumbar spine movements were only marginally restricted: Exhibit "B", p 55.
Dr Maniam's earlier report dated 14 January 2014 identified his opinion on the causative mechanism for those problems as being due to a musculo ligamentous strain of the lumbar spine with the precipitation of degenerative disease at the level L4/5. He identified the long term prognosis for the plaintiff's lumbar spine problems as being permanent, and that those problems would be noticed during physical activity: Exhibit "B", p 55.
In my assessment, as was the case with the timeline of the plaintiff's experience of neck problems from the 13 May 2009 accident until the present time, the same causation difficulties arise with the plaintiff seeking to attribute all of his back problems to the subject accident. This is because of the occurrence of the 12 February 2011 accident and the aggravating effects of the "bit of discomfort" that the plaintiff described as having followed that accident.
This problem arises because, as was the case with the plaintiff's description of neck problems, the plaintiff gave similarly vague evidence about the effect of the 12 February 2011 accident upon his back symptoms.
Therefore, I consider that the same analysis appearing at paragraphs [433], [441] - [447] above regarding the plaintiff's ongoing neck problems should apply equally to the plaintiff's complaints concerning the cause of his ongoing back problems.
Dr Maniam's report of 2 February 2015 also described the plaintiff as having only sustained minor injuries to his cervical spine, lumbar spine and left shoulder in the 12 February 2011 accident.
Whilst that description was most probably a reflection of what the plaintiff had told him concerning the cause of the plaintiff's ongoing neck complaints, Dr Maniam's opinion should be seen as being based on the plaintiff's overly-simplistic view of the events, as earlier described in relation to the neck problem, but applying equally to the complaints of neck, back, and left shoulder problems.
For the reasons already outlined, without the existence of contemporaneous historical medical evidence, I consider that the plaintiff's uncorroborated account of the aggravating effects of the 12 February 2011 accident as being minor, temporary, or amounting to nothing, should be significantly discounted.
Instead, as was the case with the analysis of the plaintiff's ongoing neck symptoms, I consider that the 12 February 2011 accident caused an ongoing aggravating effect on the injuries the plaintiff sustained on 13 May 2009. Without evidence of corroboration from contemporaneous medical records, I do not accept the plaintiff's account that the 12 February 2011 accident was only minor in effect on him. Similarly, I do not accept the impression the plaintiff sought to convey that there were only minor effects from that accident on his disabilities arising from the 13 May 2009 accident.
In summary, I am satisfied that before the subject accident, the plaintiff had recovered from the effects of his earlier back injuries that had preceded the subject accident, and that his back was no longer symptomatic at the time the subject accident occurred. This is evidenced by the plaintiff's return to full work duties.
As with the plaintiff's pre-accident neck problems, I am also satisfied that were it not for the accident on 13 May 2009, the plaintiff's pre-accident back problems, which had by then resolved, would not have been the cause of the plaintiff's current ongoing neck symptoms: s 5D of the CL Act.
For the defendant to sustain a submission that the plaintiff's pre-existing back injuries are the source of the plaintiff's ongoing back symptoms, and that the 13 May 2009 accident was only a temporary aggravation, the defendant carried the burden of adducing evidence to that effect. That burden has not been discharged: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
There is no evidence to contradict Dr Maniam's opinion dated 7 June 2012 to the effect that the subject accident caused the plaintiff to suffer a musculo ligamentous strain to his lumbar spine: Exhibit "B", p 30. I therefore accept Dr Maniam's opinion that in the subject accident, the plaintiff suffered a musculo ligamentous strain to his lumbar spine thereby precipitating degenerative changes in the plaintiff's spine: Exhibit "B", p 54. I find that this has led to the plaintiff incurring ongoing low grade symptoms of pain, discomfort, stiffness, and restriction of movement in his back, and that position continued until the time of the plaintiff's accident on 12 February 2011.
As was the case with the plaintiff's ongoing neck symptoms, and having regard to the findings in respect of Issue 6 concerning the aggravating effects of the 12 February 2011 accident, which involved the plaintiff as outlined in paragraphs [343] - [367] above, those findings can only apply up until the occurrence of the accident on 12 February 2011. This is because of the aggravating effects of that accident.
Thereafter, I find that the plaintiff's back symptoms continued in the form of an added level of "discomfort" in his back due to the effects of the 12 February 2011 accident. The evidence does not permit a more precise formulation of the extent of aggravation than that which I have stated.
As already outlined in relation to the plaintiff's neck complaints, the plaintiff's evidence about the ongoing nature of his back complaints was unclear: T59.43. My interpretation of that evidence was that the plaintiff was seeking to convey that any back pain he had from the 2007 and 2008 accidents had gone away before the subject accident. I am not prepared to accept that view in the absence of corroborative medical evidence in this case. I am not persuaded that the aggravation in question was only temporary in its nature and effect: Exhibit "A", p 2.
The plaintiff's evidence concerning the effect of the accident in which he was involved on 12 February 2011 was left in a vague state. He said that he could not remember what had happened to him: "I don't know, I just, I thought bit of discomfort, bit of, you know": T23.31 - T23.33.
The areas in which the plaintiff felt that discomfort, were not identified in his evidence in chief. The plaintiff said he went to his GP and discussed "it" because he felt concerned. He said "Yeah, went back to the GP and he said to me, not its just concerned, you know, its nothing": T23.41 - T23.42. The plaintiff avoided answering the question as to which parts of his body had caused him discomfort in the 12 February 2011 accident: T23.35 - T23.38.
I am not persuaded that the plaintiff's level of understanding concerning the claimed temporary nature of the injuries sustained on 12 February 2011 is reliable. This is because he avoided the question asked at T23.35 as to which parts of his body were affected in that accident. Furthermore, the plaintiff's evidence in which the effects of that accident were "nothing" in his account of his conversation with his general practitioner, were not reflected in any evidence from Dr Alameddin on that subject. Given the plaintiff's vagueness and the limited reliability of his evidence as to what constituted injury or disability, I am not prepared to accept his evidence that the aggravation to his back caused by the 12 February 2011 accident was only temporary.
For the plaintiff's evidence to be accepted on that issue it would have to be assessed as being reliable, which it was not, or supported by reliable medical opinion, which it was not.
This is a matter on which the plaintiff bears the onus of proof: s 5D of the CL Act. That level of proof must be achieved before the defendant is required to deal with the task of seeking to untangle what is due to the pre-existing condition and what is due to the subsequent aggravation: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
The consequence of the above findings is that the plaintiff is entitled to compensation for non-economic loss for his back injury for the period between 13 May 2009 and 12 February 2011. Thereafter, such compensation should be on a reduced level as he cannot show that all of his ongoing complaints were due to the effects of the 13 May 2009 accident. Nor can the plaintiff show on the medical evidence that the 13 May 2009 accident in some way predisposed him to an aggravating injury to his back on 12 February 2011. Those matters require resolution by specifically focussed medical evidence, of which there was none. A court is not entitled to draw medical conclusions on those matters in the absence of guidance from such medical evidence: Strinic v Singh [2009] NSWCA 15.

Left shoulder

After the subject accident, the plaintiff also complained of pain in his left shoulder, for which he also received physiotherapy treatment: T18.32 - T18.50. The plaintiff also carried on working for a while despite his left shoulder difficulties, which felt to him like there was a loose socket in his shoulder when he was engaged in lifting activities: T19.22 - T19.23.
Until 11 December 2012, which was when Dr Maniam operated on the plaintiff's left shoulder, the plaintiff felt his shoulder was slipping out a lot, which was causing him to feel a lot of pain and discomfort. The phenomenon of the plaintiff's shoulder recurrently slipping out occurred at times when he was required to raise his left hand: T22.34. Relocating the position of the shoulder on those occasions involved him in experiencing excruciating pain: T22.46.
In his oral evidence the plaintiff was taken to the events of the operation on his left shoulder on 11 December 2012. At T22.30 - T23.2, the plaintiff described the problems he was having with his left shoulder at that time, as follows: "Q. Just before that surgery what problems were you having with your left shoulder? A. I was getting, I was it was slipping out a lot, you know, it was slipping out. To me it was slipping out of the socket. It was, you know, if I raised my hand like that it would slip out. You know what I mean, if I done a quick reaction, you know, you know, it would feel uncomfortable. It would feel like, you know, it would slip out. Q. When that happened how did you deal with it? A. What is it? Q. How did you deal with it slipping out? A. It was just a normal reaction to go back and you know do whatever had whatever you needed to do to try and get it back in and you know. Q. Was there a lot of pain involved in that? A. A lot of, you know, like excruciating pain. Q. Did that happen very often. A. You know, the worst pain, one of the worst. Q. Did that happen very often before the surgery? A. Yeah, yes, it did."
After the left shoulder operation on 11 December 2012, the plaintiff experienced what he described as being a very slow recovery. Following that surgery, he has been left with restricted movement and tightness in his left shoulder: T23.4 - T23.8.
In evidence at T23.4 - T23.13, the plaintiff described the present condition of his left shoulder in the following terms: "Q. After the surgery on 11 December 2012 how did the left shoulder problem go, did it get better or worse or what was the position? A. Very, very, very slow, very slow recovery but I've learnt, I've learnt to cope with it, you know, it's, you know, restricted, restricted, limited movement, tightness. Feels like a tight elastic, you know and still from time to time it slips out. I went back and got a further MRI scan from Dr Manion and he said to me it's still torn and he said do you want to do surgery, I said I've had too many surgery, I've had five surgeries. I can't, I can't have no more surgeries. You know, I can't take it no more. It's just become too much but the MRI came up and there was, you know, torn again, still to this day."
The above cited passage from the plaintiff's evidence showed that the plaintiff was confused about the sequence of events that involved the treatment of his left shoulder. The question that was asked concerned how his left shoulder had fared after the operation on 11 December 2012. However, his answer seemed to conflate the position of the left shoulder at the present time, yet in the interim period, he had undergone a further operative procedure comprising an MR arthrogram to his left shoulder, on what appears to be 7 June 2013 (Exhibit "B", p 46), which was the fifth surgery the plaintiff was speaking about in the above cited passage from his evidence.
On an initial consideration, the latter interpretation of Dr Maniam's report seemed doubtful as the MR arthrogram performed on 7 June 2013 was reported by Dr Maniam on 14 January 2014 to show a repaired postero-superior to inferior labrum tear to be intact: Exhibit "B", p 46. This implied that there was no surgical repair undertaken on that date.
However, Dr Maniam's next report, which was dated 2 February 2015, and which was based on an examination of the plaintiff on 10 October 2014, at page 4, reiterated the interpretation of the 7 June 2013 MR arthrogram of the plaintiff's left shoulder, in the terms cited in the immediately preceding paragraph, but in the 2 February 2015 report, without further explanation, Dr Maniam added the words "However, a new SLAP defect was noted in the superior labrum": Exhibit "B", p 56.
If the repair of that SLAP defect was in fact the 5th surgical procedure undertaken by the plaintiff, it was not the subject of a medical report. The content of the plaintiff's bundle was completely silent on that matter.
In this context, there was no evidence as to what may have caused the described SLAP defect to appear, or as to what activity or event to which this may have been related. This is a matter on which the plaintiff carried the onus of proof: s 5D of the CL Act. His evidence was silent on that question.
In cross-examination, when the plaintiff was taken to the result of the left shoulder operation performed by Dr Maniam on 11 December 2012, the plaintiff said that operation had not given him any improvement, and that he required further repairs to that shoulder: T90.35 - T90.43.
The plaintiff described the current problems he is having with his left shoulder as comprising limitation or restriction of movement, tightness, and a feeling that the shoulder is no longer the same, and that he tries not to use that shoulder, including at the gym, as he is afraid he might re-injure it: T25.27 - T25.37.
There is persuasive objective pre-accident radiological evidence that the plaintiff had left shoulder dislocation problems before the subject accident, namely in December 2007: Exhibit "B", p 73. Furthermore, there was a clinical indication for a left shoulder x-ray on 15 August 2008, following the motor vehicle accident which had occurred 4 days earlier: Exhibit "B", p 74.
Notwithstanding those matters, as was the case with the plaintiff's pre-accident neck and back problems, I am satisfied that his return to his normal duties before the subject accident provides a sound basis for finding that the pre-accident left shoulder problems had resolved, and that his pre-accident left shoulder problems were not causing him difficulty at the time of the subject accident. I accept the plaintiff's evidence in that regard as it was supported by his early return to work and physical training.
I am also satisfied from the plaintiff's description of having injured his left shoulder in the events of the subject accident, and the left shoulder problems he described in his evidence continued, at least up until 12 February 2011, which was the time he was involved in a further motor vehicle accident which caused him to suffer a "bit of discomfort", as he put it (T23.32), and which I take from the context and from Exhibit "A", p 2, to also include discomfort to the left shoulder.
The plaintiff's 13 May 2009 accident-related left shoulder disabilities must therefore be seen as having been complicated by the further injury to that shoulder on 12 February 2011: Exhibit "A", p 2.
On behalf of the plaintiff it was claimed that further accident only caused a temporary aggravation of his left shoulder problems. As is the case with the plaintiff's neck and back problems, in the absence of contemporaneous medical assessment to that effect, I consider the plaintiff's account, which implied only a temporary aggravation of the left shoulder condition, should be significantly discounted as being unqualified and unreliable for the reasons already identified in his evidence on his disabilities generally. The plaintiff bears the onus of proving the claimed aggravation was only temporary: s 5D of the CL Act. That proof is absent in this instance.
I consider that the plaintiff's own evidence, without corroboration from contemporaneous medical evidence, is an unreliable guide to determining that issue. This is particularly so where Dr Alameddin saw the plaintiff on 31 March 2011, which was some seven weeks after the accident on 12 February 2011, and on several occasions thereafter (Exhibit "E", p 5), and where no report is available from Dr Alameddin to support the suggestion of only a temporary aggravation to the left shoulder, as claimed on behalf of the plaintiff.
That view is reinforced by the fact that the plaintiff was seen by his physiotherapist at an unknown time on 12 February 2011 and thereafter (Exhibit "E", pages 12 onwards) and the reports of that physiotherapist (Exhibit "B", pages 98 - 108) make no mention of an aggravating injury occurring on 12 February 2011. The evidence also indicates that the plaintiff was seen by the physiotherapist on 8 April 2011, and in the physiotherapist's report of that consultation, there was no mention made of the accident on 12 February 2011, yet there were significant complaints recorded of left shoulder (and neck) problems. This suggests that in providing his opinions, the physiotherapist was also reliant on an incorrect, or at least an incomplete, history from the plaintiff.
I am therefore not persuaded the plaintiff's injury to his left shoulder on 12 February 2011 was only of a temporary nature.
That finding also leads to difficulties on a causation analysis in respect of the assessment of damages because the evidence does not permit a reasoned delineation of the effects of the subject accident on the plaintiff's left shoulder as distinct from the aggravating effects of the accident on 12 February 2011: s 5D of the CL Act; Larson v Commissioner of Police [2004] NSWCA 126, at [48].

Right knee

I accept that the plaintiff has continued to experience ongoing right knee pain after he jumped from the cabin of his truck to get away from the vehicle in the immediate aftermath of the accident. I accept the plaintiff continued to have right knee problems since that time.
The defendant argued that the plaintiff's pre-accident right knee injury was the relevant cause of the plaintiff's current right knee symptoms, and not the accident on 13 May 2009. The defendant pointed to the plaintiff having experienced right knee problems before the subject accident. This was evident from the fact that his right knee had been x-rayed following the plaintiff's motor vehicle accident on 11 August 2008: Exhibit "B", p 75.
Given that no abnormality was found on that pre-accident x-ray examination, and in the absence of contemporaneous contradictory medical evidence, or contradictory expert medical opinion analysing the factual evidence on that issue, I accept the plaintiff's evidence that any knee problems that followed the accident of 11 August 2008 were of only temporary duration, and were not affecting him in any relevant sense, at the time of the subject accident. That view is supported by the fact of the plaintiff's return to work and his exercise regime.
For a contrary conclusion to apply, as was urged by the defendant, supporting evidence to that effect would be required, and such evidence was absent: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Shoalhaven City Council v Humphries [2013] NSWCA 390, at [87] - [88].
Not long after the subject accident, the plaintiff's physiotherapist provided him with a knee brace for his right knee: T19.44. There was little in the way of oral evidence from the plaintiff concerning the progress and problems he experienced in connection with his right knee up until the time of the first operation on that knee on 12 April 2011.
The only evidence given by the plaintiff on that subject was that his right knee gave way from time to time: T20.31. The context of that evidence was that the problem of the plaintiff's right knee giving way related to the condition of his right knee before the plaintiff's first knee operation on 12 April 2011.
In giving that evidence, the plaintiff did not deal with the detail of the aggravating injury he sustained to his right knee in the further motor vehicle accident in which he was involved on 12 February 2011: Exhibit "A", p 2.
The plaintiff stated, without supporting detail, that the 12 April 2011 operation on his right knee was not a successful operation: T20.48. There was no reasoned medical opinion to support that view, although the plaintiff was certainly entitled to hold an opinion on the matter.
As the plaintiff was dissatisfied with the result of his 12 April 2011 knee surgery, he sought out a second opinion from Dr Maniam, who later performed a second knee operation on the plaintiff on 3 July 2012: T21.28 - T21.29. Dr Maniam's report dated 13 August 2012, which referred to the remedial procedure he performed on 3 July 2012, described the presence of "a recurrent tear after previous partial menisectomy": Exhibit "B". p 33. The cause of that "recurrent tear" was not identified in the evidence.
The plaintiff said that his knee never felt the same after that second operation. He said that it was unstable, and that it collapsed from time to time. His evidence on that subject was at T21.28 - T21.50, as follows: "Q. Did Dr Manion [sic] perform surgery to your right knee on 3 July 2012? A. Yes. Q. After that surgery how did your right knee progress if at all, in other words did it get better or worse or what happened? A. No, it's never felt it still never felt the same. It never felt, you know, it was still unstable. He explained to me that, you know, that there was a problem with your knee that you know big, you know, after the knee reconstruction you've torn the meniscus and prior Dr Kirsch, whatever, things weren't right. Q. Did you continue to have symptoms in your knee? A. Yes. Q. Pain and? A. Pain, a lot of pain, grinding pain, a sharp pain so again it collapsed. My knee gave in, third time. Q. We know the records show that you had a further surgery to your right knee? A. That's right. Q. On 7 May 2013 and the surgeon was Dr Manion [sic], is that right? A. Yeah."
It is relevant to note as was observed by Dr Giblin in his report dated 2 July 2013 (Exhibit "B", p 174), that an MRI scan of the plaintiff's right knee carried out on 31 October 2012, showed a bucket handle tear of the medial meniscus with a displaced fragment. No explanation was given for the cause of that tear. Dr Maniam's descriptions of the reason for the re-operation being due to "failure of suture of [the] medial meniscus" (Exhibit "B", p 54) or "failed repair" (Exhibit "B", p 36), are descriptions without relevant meaning as to the cause of that failure. This is a matter upon which the plaintiff carries the onus of proof: s 5D of the CL Act.
Following the identification of the further tear to the plaintiff's medial meniscus, on 7 May 2013, the plaintiff's right knee was operated upon for a third time. That operation was carried out by Dr Maniam: T21.50.
The evidence shows that a significant intervening event which occurred before that operation was not defined or apparently considered, namely the incident comprising the plaintiff's knee twisting injury which occurred on 18 August 2012: Exhibit "B", pages 110 - 111.
That event was not described either in the plaintiff's evidence, or in the medical opinions contained in the various medical reports.
Following that third right knee operation on 7 May 2013, the plaintiff described the condition of his right knee (at T22.1 - T22.23) as follows: "Q. Following that surgery how was your right knee? A. He said to me that my options are to remove the meniscus. Q. Forget about the options, I'm just asking you how was your knee following that surgery? A. Never the same. Still limitation. Q. What sort of limitations did you have following that surgery? A. Following the surgery? Q. Yes? A. Restrictions. Reverse, flex, you know, you know, lift, you know, can't bend you know all the way. Like you know as usual, you know I still get sharp pain, grinding. You know when I'm walking it grinds now, it's always grinding. Q. Where would you get the pain? A. Pardon? Q. Where would you get the pain? A. At the front of my knee, you know, front and side of my knee. Now I just, you know, I get sharp pains. Always, you know when I'm walking now I just I've learnt to cope with it. You know, it's not about pain anymore. Pain does vary from time to time."
The plaintiff stated that about a year after the subject accident (namely in about May 2010) he began to notice a problem with his left knee because he had been favouring his right knee and using his left knee to a greater degree: T26.19 - T27.4.
The plaintiff currently continues to experience grinding pain in his right knee on a daily basis: T27.11. It has been suggested that there might be a need for a right total knee replacement but this is not mandated at present. It was left on the basis that a knee replacement cannot be excluded in the future: Exhibit "B", p 175.
The plaintiff summed up his description of his current right knee problems as consisting of difficulty with bending, squatting, walking up and down stairs, and experiencing "hot pain" when walking for about 15 minutes, along with the experience of a pins and needles like sensation running down to his "feet" (sic): T25.39 - T25.47.
When analysed, the defendant's argument seeking to avoid liability for the plaintiff's right knee problems relied upon two elements: first, the plaintiff's action in jumping from his truck, and not the defendant's negligence, was the suggested cause of his knee problems, and secondly, having regard to the known chronology of events, the plaintiff has not proven that the events of 13 May 2009 were the cause of all of his knee problems: s 5D of the CL Act.
Dealing with the first element of that argument, I consider that when the plaintiff jumped from the cabin of his truck, thereby injuring his right knee, his reaction in doing so was a natural and probable consequence of the collision which had just occurred. I find that, but for that collision, he would not have had the need to get away from his vehicle in the manner he did, and he would therefore not have injured his right knee: s 5D of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, at [18]. The first element of the defendant's argument seeking to avoid responsibility for the plaintiff's right knee problems must therefore be rejected.
Turning then to the second element of that argument, I also consider that element of the defendant's argument, should not be accepted.
My reasons for that conclusion are the consequence of my earlier stated findings at paragraphs [362] and [411] above, to the effect that the plaintiff has not provided proof on the balance of probabilities, that the effects of the accident in which he was involved on 12 February 2011, and the knee twisting injury he incurred on 18 August 2012, did not materially contribute to his ongoing complaints of disability to his right knee: s 5D of the CL Act; Larson v Commissioner of Police [2004] NSWCA 126, at [48].
Put another way, the plaintiff has not proven that the current condition of his right knee is wholly due to the effects of the subject accident: s 5D of the CL Act.
Those findings add to the difficulties of assessing damages in this case, where the separate effects of the multiple accidents or incidents in which the plaintiff has been involved, have not been adequately addressed in the evidence to delineate the effects that those incidents have had on the cause and the continuation of the plaintiff's ongoing disabilities of his right knee from 13 May 2009 until the present time.

Left knee

The plaintiff stated that the effect of his right knee injury from the subject accident was that after about a year, he started to experience symptoms in his left knee: T26.19 - T27.4. The unchallenged medical evidence is that this problem was due to the plaintiff overusing and favouring his left knee: Exhibit "B", p 178. An MRI scan of the plaintiff's left knee on 23 July 2013 showed that the plaintiff had an undisplaced horizontal tear in the posterior horn of his left medial meniscus. I accept that evidence and infer that this was due to excessive and abnormal use as a result of the right knee problems. I therefore find that the plaintiff's left knee problems are as a consequence of the accident on 13 May 2009.

Surgical scarring

As a result of the various surgical procedures, the plaintiff has been left with multiple sites of 13 May 2009 accident-related surgical scarring to his left shoulder, right knee and the index finger of his right hand. Whilst these are not described as being particularly unsightly or disabling, they are nevertheless matters that must be taken into account in the assessment of damages for non-economic loss.

Psychological problems

The plaintiff claimed that the accident on 13 May 2009 had "mentally and physically destroyed" him: T89.40.
The plaintiff also stated that over the past 5 years, the subject accident has caused him a lot of stress, although he also indicated that he has learned to cope with his situation: T27.39 - T27.44. However, (at T27.46 - T27.49) he also gave other evidence which was confusing about the effect that stress had upon him, as follows: "Q. It caused you a lot of stress because of the opportunities you say you've lost is that right? A. Exactly right, exactly right, you know and because of my multiple injuries, I am confused to see what holds for me now."
There was no attempt to clarify the plaintiff's evidence on this issue in order to seek to differentiate the nature of the various stresses he had experienced from his "multiple injuries", as described in the above extract from his evidence, and as identified in the medical reports: Exhibit "B", page 54.
In his evidence in chief, the plaintiff described having attended upon Mr Walid Ahmad for 26 psychological consultations between June 2011 and November 2013: Exhibit "B", p 65. This included 10 further consultations with Mr Ahmad between 5 August 2013 and 26 November 2013: Exhibit "E", p 7. The context of the consultations with Mr Ahmad was described by the plaintiff, at T24.50 - T25.19, as follows: "Q. Did those sessions with that psychologist assist you to get on with things? A. Yeah, they were hard, they were hard, you know, you know it was a very there was emotional times. Yeah, difficult times, time to time I would break down and think to myself you know why me. You know, I couldn't, there was, you know, I had you know I had insomnia, you know, my insomnia had got, you know, it came, I don't know. I couldn't sleep. You know, just a lot of uncomfortable and just I just, I just needed someone to talk. You know, I was advised to speak to a psychologist and. Q. Did those problems you're talking about, did they get better or what happened with the assistance you received? A. Yeah, yeah, I think, I think they did. I think they did. It still, it still, you know, the memories are still there. You know, the scars are still there, you know, in the back of your head. You know, it's, it was tough, you know, it's tough to, you know I put my finger through kids, you know, during that time you know I got two kids, back then they were two or three when they wanted me to pick them up and hold them I had to pick them up one by one, you know and I'd put one down and other one would be held and to me it was, it was emotional. You know, it was very stressful and emotional, you know. You know."
The fact that the plaintiff had understandably experienced psychological symptoms before the 13 May 2009 accident, together with the fact that the plaintiff did not provide clear and cogent evidence of his psychological well-being at the time of the subject accident, taken together with the fact that he has been involved in other accidents or incidents, including after 13 May 2009, creates doubts about the appropriateness of the plaintiff's claim that the subject accident had "mentally destroyed" him. The evidence of Mr Bilal Moussa was of limited assistance on this issue. Those circumstances have created a difficulty for the assessment of damages in this case.
Added to that difficulty, from the perspective of assessing damages in this case, is the fact that the only evidence tendered from an expert psychologist, Mr Ahmad, has been shown to be historically unreliable because Mr Ahmad's reports have been prepared without taking into account the full extent of the plaintiff's past history of psychological problems that arose from his pre-accident life's experiences, as has been earlier explained in paragraphs [258] - [266] and [363] above.
These problems of history and the differentiation of the sequelae of the various relevant events, are matters upon which the plaintiff carries the onus of proof: s 5D of the CL Act; Larson v Commissioner of Police [2004] NSWCA 126, at [48].

Continuing medical and allied treatment

The plaintiff still continues to see Dr Alameddin: T28.16. The absence from the evidence of any comprehensive report from that doctor, whether contemporaneous to treatment, or an overview, remains unexplained.
The plaintiff also continues to see Dr Maniam from time to time: T28.19. The plaintiff continues to obtain physiotherapy from Lakemba Physiotherapy on a weekly basis: T28.28. The evidence did not elaborate upon the areas of his body for which he was receiving that current physiotherapy treatment, which was described as Hydro-active physiotherapy: T29.33. He continues to obtain medications from Radwan's Pharmacy: T29.14 - T29.26. Those medications were not specified in the evidence.
These matters will be taken up in connection with the consideration of the assessment of the plaintiff's reasonable need for damages for future treatment expenses.

Issue 7 - Assessment of damages

In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span

In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 32 years, the plaintiff has a rounded down probable median statistical life span of a remaining 53 years.

Mitigation

The plaintiff has sought out and promptly obtained treatment for his injuries. Notwithstanding the sparsity of the evidence concerning those matters, I find that he has taken reasonable steps to mitigate the effects of the subject accident, including by seeing his general practitioner, undertaking surgery, physiotherapy and psychological treatment, as well as taking medication.
The defendant has not demonstrated any relevant failure on the plaintiff's part to take reasonable steps to mitigate his damages. Any delays encountered by the plaintiff in obtaining surgical treatment to his left shoulder and right knee appear to be due to the third party insurer delaying the approval of funds for such treatment. Those circumstances should not be seen as being due to the fault of the plaintiff.
The plaintiff has expressed an understandable reluctance to have further surgery, having already had 5 operations: T23.11. On the state of the medical evidence concerning future treatment I do not consider the plaintiff's present reluctance to be a discounting factor for the assessment of damages.

Non-economic loss

On behalf of the plaintiff, it was submitted that $300,000 would be the appropriate sum to be awarded for non-economic loss. On the evidence, I consider that sum to be excessive.
In contrast on behalf of the defendant it was submitted that the appropriate sum for this head of damage should be $200,000. That submission was predicated on an acceptance of a relevant causal relationship between the plaintiff's accident and all of his claimed ongoing disabilities. The defendant also made the alternative submission that damages for non-economic loss should be assessed at $50,000 in the event that the cause of the majority of the plaintiff's ongoing disabilities was found to be unrelated to the accident.
In view of the plaintiff's complicated history of injury as already outlined, I consider that the issue of resolving the level at which damages for non-economic loss should be assessed lies somewhere between the defendant's two alternative positions. My reasons for that view are as follows.
The assessment of the level of damages for non-economic loss is necessarily dependent upon the findings as to the extent of the plaintiff's accident-related injuries and the nature, extent and duration of the plaintiff's ongoing accident-caused disabilities.
Until the advent of the aggravating effects of the 12 February 2011 accident, the plaintiff had endured 18 months of pain and suffering uncomplicated by the aggravating effects of that accident. Those problems were of a physical and psychological nature.
Thereafter, and for the ensuing 18 months until the occurrence of the twisting injury to the right knee on 18 August 2012, the plaintiff's disabilities comprised an inseparable admixture of the effects of the subject accident and the effects of the supervening aggravation of his neck, back, left shoulder, right knee and psychological disabilities.
Those problems have continued, but with the further added problem of the aggravating effects of the right knee problems due to the twisting injury incurred on 18 August 2012. The state of the evidence does not permit a rational apportionment of the respective degrees of disabilities from those aggravating events.
As already outlined, not all of the plaintiff's disabilities can be reasonably sheeted home to the defendant as arising from the subject accident: Issues 4, 5 and 6 above.
Despite that evidentiary difficulty, the plaintiff is entitled to substantial compensation for the accident-related disabilities he has endured, and for the impact those problems have had on the amenity and enjoyment of his life, including the need for knee and shoulder surgery and the sequelae of those operations.
Other matters to be taken into account are the plaintiff's relatively young age, the fact that some aspects of the subject accident continue to have a significant impact upon his physical and psychological wellbeing, and his need for ongoing medical review and possible further surgical treatment. I have also taken into account the fact of the plaintiff's surgical scarring that relates to the subject accident.
Doing the best I can to be fair to the plaintiff whilst not being unfair to the defendant, in addressing the question of assessment of damages for non-economic loss in the face of the difficulties that have been identified in ascribing the plaintiff's problem to the effects of the accident of 13 May 2009 as distinct from the aggravating effects of the events of 12 February 2011 and 18 August 2012 which are not compensable, I consider that an amount of $150,000 represents a fair sum to compensate the plaintiff for his non-economic loss: s 134 of the MAC Act.
I therefore assess the plaintiff's damages for non-economic loss in the amount of $150,000.

Past loss of earning capacity

In a revised submission dated 8 May 2015, forwarded by leave, the plaintiff's claim for past economic loss was identified as being in the submitted sum of $235,360, which comprised three components, namely:

2 June 2010 to 3 November 2014, a period of 230 weeks claimed at an average of $960 per week net, which was calculated at $220,800;
3 November 2014 to 4 May 2015, a period of 26 weeks at an average of $960 per week net, less actual mitigatory earnings of $400 per week net, which was calculated at $14,560.

In respect of the first submitted component of economic loss, the calculation of the sum of $220,000 commenced on 2 June 2010 when the plaintiff ceased his employment with Bonds, some 13 months after the accident. The plaintiff claimed that until 2 June 2010, he had managed to carry on with his work, albeit with difficulty, until he could no longer cope with the demands of that work. At the time he ceased his employment with Bonds, this marked the commencement of his accident-related unemployment and therefore, his loss of income.
In respect of the second submitted component of economic loss, the sum of $14,560 represented the difference between the submitted pre-accident rate of earnings and the mitigatory earnings the plaintiff received from 3 November 2014 onwards whilst he has been employed by his brother.
That second submitted component was based on the assumption that the plaintiff's mitigatory earnings of $400 per week were gross, and not net, as it in fact represented a payment of $20 per hour gross for 20 hours per week for working as a cashier, answering the telephone and attending to customer service in his brother's business: T98.25 - T98.41. After applying the current tax scale, the net equivalent of that amount is not greatly different, at $398.16 per week. Over 26 weeks between November 2014 and the commencement of the hearing, the offset amount for mitigatory earnings should therefore be $10,352.16.
In contrast, the defendant submitted that the plaintiff's entitlement to damages for past economic loss should be assessed in the rounded sum of $100,000, which is based on the notion that the plaintiff's past loss of earnings only accrued between July 2010 to April 2015, at $400 per week after taking into account the plaintiff's proven residual earning capacity of $400 per week gross.
Quite apart from the rate of $960 per week net nominated on behalf of the plaintiff, for which there was no evidence, there are some difficulties in each of the arguments put forward in support of the plaintiff's claim for past loss of earning capacity.
Foremost amongst those difficulties is the consequence of the causation finding that the plaintiff's disabilities were aggravated by the 12 February 2011 accident and then by the 18 August 2012 knee twisting incident. Those matters must be taken into account as it has not been satisfactorily shown that those problems were caused by the subject accident and it's natural and probable consequences, as earlier explained.
It is incumbent on the plaintiff to prove his loss of earnings: s 5D of the CL Act. For the reasons already outlined, I am not satisfied on the evidence that the plaintiff's accident-related right knee injury continued to produce significant symptoms beyond 9 August 2012, which was the date when Dr Maniam assessed the plaintiff's knee after the operation he had successfully performed on the plaintiff on 3 July 2012. At that time, no lasting restrictions were identified.
Although the plaintiff still had left shoulder problems in August 2012, these must also be seen as being at least in part due to the aggravating effects of the 12 February 2011 accident, as earlier explained.
This gives rise to a question as to whether the plaintiff's claim for past loss of earnings was in any way diminished by the effects of the accident on 12 February 2011. The state of the evidence does not permit a non-conjectural and reasoned answer to that question. In those circumstances, I consider the plaintiff's claim for past loss of earnings should be calculated without discount until the time of the knee twisting injury on 18 August 2012.
That component of the plaintiff's claim, which is for a period of 115.28 weeks between 2 June 2010 and 18 August 2012, at the assessed rate of $850 per week net, amounts to $97,988 net.
I consider that after the right knee twisting incident on 18 August 2012, and continuing until the present time, the plaintiff's claim for past loss of income should be materially discounted to reflect the fact that the knee twisting injury on that date materially changed the state of the plaintiff's right knee which had beforehand been successfully repaired by Dr Maniam, on 3 July 2012.
Allowing for a reasonable period for post-operative recovery from that repair procedure, I consider that the undiscounted portion of the calculation of past economic loss should continue for a period of 3 months after 18 August 2012, namely to 10 November 2012. The calculation of that loss of $850 per week net over 12 weeks amounts to $10,200.
After that date, I consider that the ongoing component of past loss of income should be discounted to reflect the effect of the 18 August 2012 knee injury, which required surgery, and which has left the plaintiff with significant and ongoing right leg disability.
The difficulty with identifying the extent of such a discount is that the evidence does not permit a precise apportionment of loss of earnings between the effects of the 13 May 2009 accident, which after mid-2010 also included left knee over-use problems, and the effects of the 18 August 2012 injury.
Notwithstanding that state of the evidence, and the difficulty involved in making such an apportionment, it is nevertheless necessary to grapple with that issue and to apply such a discount, although to do so may seem to be arbitrary. I consider that the appropriate discount to be applied in the circumstances should be 25 per cent, which, when applied, renders the plaintiff's ongoing loss of income from 10 November 2012 to be in the amount of $637.50 per week net.
The calculation of $637.50 per week net over the period of 128.85 weeks between 11 November 2012 and 4 May 2015 amounts to $82,141 net.
The aggregate of the above three calculations, namely $97,988, $10,200 and $82,141, amounts to $190,329 net.
There must be an offset applied in that sum in respect of the plaintiff's actual net earnings of $398.16 net per week over the 26 weeks from 3 November 2014 to 4 May 2015, namely $10,352. This yields a calculation of the plaintiff's past loss of earnings in the net sum of $179,977.
I therefore assess the plaintiff's damages for past loss of earning capacity in the net sum of $179,977.

Future loss of earning capacity

The plaintiff's claim for future loss of earning capacity was set out in a revised submission dated 8 May 2015 in the amount of $620,121.30, which amount comprised two identifiable components, namely:

The projection of a submitted loss of $1100 per week net less a residual earning capacity of $174 per week net ($926 per week) at 5 per cent over 35 years to age 67 years (x 796.6) less 20 per cent for vicissitudes, which calculated at $590,121.28;
A discounted agreed lump sum of $30,000 to reflect a total loss of earnings between the ages of 60 and 67 years, as suggested by Dr Giblin in his report dated 14 January 2015.

In contrast, the defendant submitted it would be appropriate to award the plaintiff an amount of $140,352 for future economic loss which comprised the projection of $200 per week net at 5 per cent over 35 years until retirement at age 67 years, plus the agreed sum of $30,000 identified in the preceding paragraph, totalling $170,352.
In my view, both of those submissions involve problematic elements.
The agreed amount of $30,000 to be added to the plaintiff's damages for future loss of earning capacity represents a pragmatic position adopted by the defendant to agree to have that sum incorporated into the plaintiff's damages in order to obviate the need for adjournment which arose in the course of final submissions due to an application by the plaintiff to amend the particulars of economic loss in final submissions so as to include an amount of $30,000 if it was found that the plaintiff would be totally unable to work after the age of 60 years if it was found that such incapacity was caused by the subject accident: T145.14 - T146.22.
The basis for the assessment of the amount of $30,000, which takes into account "all the vicissitudes" (T146.28), is found in Dr Maniam's opinion that the plaintiff's working life would be curtailed by 25 per cent of normal: Exhibit "B", p 55, and the opinion of Dr Giblin to the effect that future deterioration of the right knee will prevent the plaintiff from light duties employment by the age of 60 years: Exhibit "B", p 180.
Those opinions relied upon by the plaintiff for this component of loss appears to be flawed to a degree. This is because it seeks to attribute that element of work incapacity to the accident of 13 May 2009, without a consideration of the effects of the incident on 18 August 2012, if not the aggravation injury on 12 February 2011. However, as the parties have reached a compromise position on that issue, including on account of the vicissitudes, it is appropriate for that sum of $30,000 to be incorporated into the assessment because the 18 August 2012 knee twisting injury and the 12 February 2011 accident were aggravating factors that were in the nature of crystallised vicissitudes.
The baseline for assessment of damages for future economic loss until the age of 60 is the plaintiff's most likely circumstances that would have prevailed but for the subject accident. My findings in that regard appear between paragraphs [81] - [111] above. The effect of those findings is that at the present time, uninjured the plaintiff would most likely have been deriving earnings of $900 per week net.
The baseline for projection of future losses must also take into account the aggravating effects of the plaintiff's knee twisting injury on 18 August 2012, and the earlier accident of 12 February 2012, which requires that the future projection be discounted by a suitable percentage to reflect that added layer of impairment of earning capacity that is unrelated to the accident of 13 May 2009.
In my view, as already indicated, that unrelated additional layer of impairment due to aggravation of the injuries sustained on 13 May 2009, should be treated as an adverse vicissitude that has already been crystallised. That factor should be allowed by applying an overall discount of 25 per cent. When that percentage is applied to the sum of $900 per week, this yields the amount of $675 per week net.
Before projection of that amount, an offset must be allowed for the plaintiff's proven mitigatory earning capacity of $398 per week net. This yields the weekly loss for projection to be the sum of $277 per week net.
That amount requires projection to the plaintiff's age of 60 years as the damages to be awarded for the plaintiff's loss of earning capacity between ages 60 and 67 years has already been agreed at $30,000.
The projection of $277 per week net at 5 per cent for 28 years to age 60 (x 796.6) yields the sum of $220,658. A discount for vicissitudes has already been applied. When the agreed sum of $30,000 is added, this yields the amount of $250,658.
I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $250,658.

Past domestic assistance

The plaintiff makes a claim for past paid domestic assistance in the submitted amount of $5460. That amount represents the cost of the plaintiff having paid someone to maintain his lawns and garden from the time of the accident at the rate of $70 per month, or $17.50 per week, over 312 weeks or 78 months from 13 May 2009 to 4 May 2015.
In contrast the defendant submitted that the rounded down sum of $4200 would represent sufficient compensation for this head of damage. The discounted basis of that submission was not explained.
The plaintiff's actual expenditure on this item has been at the rate of $70 per month over the past 78 months. On that basis, I consider that the proper sum to be awarded is the amount actually paid by the plaintiff for those services, namely, $5460.
I therefore assess the plaintiff's damages for past domestic assistance in the amount of $5460.

Future domestic assistance

The plaintiff makes a claim for future paid domestic assistance in the submitted amount of $96,418, which comprises two components:

The first component is the projection of 2 hours of commercially provided care per week for 53 years to age 80 years (x 988.9) at $40 per hour, undiscounted, which calculates at $79,112;
The second component is the projection of $17.50 per week for gardening and lawn maintenance for 53 years to age 80 years (x 988.9), which, undiscounted, calculates at $17,306.

In contrast, the defendant submits that it would be appropriate to award the plaintiff the sum of $15,472 for future lawnmowing to age 80 years, at the rate of $70 per month. That was said to equate to $17.50 per week. This actually equates to $16.15 per week ($70 x 12 ÷ 52).
In my view both submitted approaches are problematic. In order to determine whether damages for future paid domestic assistance is justified, it is necessary to refer to the evidence.
The plaintiff gave only limited evidence on the question of his likely need for future domestic assistance. One of his concerns about his residual physical restrictions was that he might re-injure himself: T25.34; T36.18. His evidence in chief on the specific issue of ongoing domestic assistance was limited to the following extract which appears at T35.40 - T36.24: "Q. Just a couple of other questions. At the moment you live in rented accommodation with your family, is that right? A. That's correct, that's right. Q. Was it your intention to purchase a home in due course? A. Yes, of course. Q. Had you been able to continue in your practice in the trade that you were in previously. A. Yeah. Q. Would you have expected to have a home by now? A. Yeah, yes. Q. Were you handy in terms of handyman activities? A. Yeah, like you know, like I said I was a fitter and you know all round the carpenter. I used to service my vehicles, wash my vehicles. It's just something that I loved doing. I was an outdoor person. Yeah. Q. If you had a home, what about lawn mowing and gardening, would you be able to undertake those sorts of things? A. Yeah, yeah, I used to. It's normal, you know. It was normal you know do what I have to do, you look after. Q. What about now, are you able to do those now? A. Now I get someone to come out and cut the grass and do all that. Q. Why do you do that? A. Because l'm afraid of reinjuring. I know it's going to be a bit difficult. You know what I mean, I probably can do it but I I can guarantee that I'm going to pay the price, I'm going to, you know, at night I'm going to feel the pain. Q. Have you tried to mow the lawn since the accident? A. No. I've been through a lot so I just, I just very fragile and more concerned about reinjuring."
On a more general level, when speaking about his physical capacity for carrying out truck maintenance, driving and deliveries, the plaintiff said "Everything became uncomfortable. Everything became a lot harder": T73.49. It could be inferred from that evidence that the plaintiff would find it harder to carry out domestic maintenance and cleaning tasks. However, those tasks were not described in detail and there was inadequate discussion in the evidence of the plaintiff as to the likely provision for time that would be required to address an accident-related need for domestic assistance.
Furthermore, apart from identifying a fear of re-injury, there was nothing in the plaintiff's evidence that assisted with an analysis of what, if any, effect the injuries he sustained on 12 February 2011 and 18 August 2012 influenced his decision to continue to pay someone for lawnmowing. This was a significant omission from the evidence in circumstances where the burden of proving the need for such assistance lay with the plaintiff: s 5D of the CL Act.
It is therefore necessary to turn to a survey of the medical evidence in order to ascertain whether that evidence provides proof or support for a relevant need for domestic assistance.
The issue is addressed only indirectly in the report of Dr Maniam dated 2 February 2015, which was based on an examination of the plaintiff on 10 October 2014: Exhibit "B", p 53. There, Dr Maniam identified the plaintiff's current situation as stable due to his sedentary lifestyle, the current complaints being minimal symptoms in the cervical and lumbar spines, a constant ache in the left shoulder and a constant ache in the right knee.
In his report dated 2 July 2013, Dr Giblin made the following general prognostic comments: "His condition is stable. Some symptoms are going to persist in a recurrent fashion being present in terms of exacerbations and remission but will be associated with life long physical restrictions. In relation to his spine, he is permanently unfit for heavy repetitive, bending, lifting and twisting, or associated labouring duties. In relation to his left upper extremity, he is permanent unfit for heavy repetitious pushing, pulling, lifting and twisting, repetitive impact work, load bearing, or recurrent activities above shoulder height. In relation to his right lower extremity, he is unfit for kneeling and squatting, pivoting and twisting, stair or ladder climbing, working at heights, repetitious impact activities or labouring duties. Whilst he might be fit for a sedentary job, avoiding the aforementioned physical restrictions, and preceded by the appropriate vocational rehabilitation, his injuries may be susceptible to aggravation as well as long term deterioration." [Exhibit "B", pages 174 - 175]
Dr Giblin's final report dated 14 January 2015 noted the plaintiff's physical activities, including his household activities were restricted, with sitting and standing limited to 10 mins, and walking limited to 15 mins. He considered the plaintiff's condition to be stable, with persisting symptoms in the foreseeable future, marked by exacerbations and remissions, but with permanent physical restrictions: Exhibit "B", p 179.
Dr Giblin's report dated 14 January 2015 then went on to state: "Specifically, he is permanently unfit to use his left upper extremity for repetitious pushing, pulling, lifting and twisting, load bearing, operating vibrating machinery or recurrent activities above shoulder height. He is unfit to use either lower extremity for constant kneeling and squatting, pivoting and twisting, stair or ladder climbing, impact activities or working at heights. He is unfit for any labouring duties including prolonged periods of walking or standing. I view his injuries as having the propensity for further material aggravation as well as ongoing deterioration. … In terms of his domestic environment he will need some degree of recurrent physical support in terms of domestic responsibilities but this will increase as his injuries deteriorate. Eventually, he will need a wheelchair friendly domestic environment." [Exhibit "B", p 180]
The evidence of the plaintiff did not assist in dealing with the specific tasks of domestic activity that required him to have the claimed assistance. Nord did it assist with estimating the time required for the tasks for which he required assistance.
The report of Dr Barrett dated 30 October 2013, was provided at a time the plaintiff's condition was not stable and when the plaintiff was affected by pain behaviour: (p 8). He found it difficult to address the question of whether, or to what extent, the plaintiff required domestic assistance: (p 9).
The compelling conclusion to be drawn from the foregoing survey of the evidence on this issue is that the evidence did not demonstrate much in the way of a specific injury-based need for domestic assistance. Recent authority indicates the need for specific evidence to justify such a claim: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at sub-paragraph (b) of [92]; and paragraphs[104] - [105]; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [97] - [100].
There was no evidence as to the claimed market rate of $40 per hour for paid domestic assistance. Apart from the evidence of the relatively modest cost of lawnmowing services at $70 per month, in this case the only reliable basis for identifying an hourly rate for domestic assistance is the statutory rate provided by s 141B(4)(a) of the MAC Act. However, no specific hours are identifiable.
As the state of the evidence does not permit an identified amount for projection as a future source of likely expenditure for domestic assistance, and as there are some tasks identified in the cited medical evidence which suggest the plaintiff would have difficulty, and might therefore need occasional external assistance if those tasks were not continued to be carried out by his wife or family members (for which there was no evidence), I consider that the appropriate method by which to compensate the plaintiff for this head of damage is by way of a modest buffer amount of $20,000 to reflect the value of the chance the plaintiff may need such assistance: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71] and [87]; Penrith City Council v Parks [2004] NSWCA 201, at [58]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7].
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $20,000.

Future treatment expenses

The plaintiff made a claim for future treatment expenses involving two components.
The first submitted component was a claim for $50,000, not as a projected amount, but a global sum representing an allowance for future general and specialist medical reviews, pain management, investigation, medications, hospitalisation, physiotherapy, hydrotherapy and psychotherapy.
The second submitted component was for possible operative procedures based upon the report of Dr Giblin dated 14 January 2015. The sum claimed was $166,000, without dissection of its component costs. It was said to be on account of reconstructive surgery to the left shoulder, bilateral knee arthroscopies, bilateral knee replacements and future revision of bilateral knee replacements. In my view that claim was extravagant and exaggerated, and without adequate foundation in the evidence. Dr Giblin's report dated 14 January 2015 did not support such an approach: Exhibit "B", p 180.
In contrast, the defendant submitted that the plaintiff should be awarded a lump sum buffer amount of $25,000 on account of possible future treatment expenses.
An evaluation of Dr Giblin's views on the need for future surgical treatment was that it was not mandatory at this stage, but it could not be excluded. He estimated the total medical costs of a total knee replacement to be in the order of $25,000: Exhibit "B", p 175. That evidence did not suggest that it was more probable than not that the plaintiff would require such surgery, either in the short or longterm. At best, there is a chance that future surgery may be required.
The plaintiff said he has had enough surgeries: T23.4 - T23.13. It therefore seems from that evidence that it is unlikely he will agree to further surgical procedures on his right knee unless it was absolutely indicated. The evidence does not suggest such an indication. Therefore, rather than identifying individual lump sum costings of future treatment for discounting for deferral of cost, or identifying a weekly sum representing recurring treatment costs for projection, I consider that the most appropriate method by which to compensate the plaintiff for the prospect that he will require accident-related future treatment is by an award of a buffer sum of $25,000: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71] and [87]; Penrith City Council v Parks [2004] NSWCA 201, at [58]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7].
I therefore assess the plaintiff's damages for future treatment expenses in the buffer amount of $25,000.

Past out-of-pocket expenses

The plaintiff claimed out-of-pocket expenses for treatment and allied expenditure in the sum of $109,383.30. The defendant conceded the mathematical correctness of that amount, which comprised the total of the amounts listed in Exhibit "E", but contended the whole of that amount should not be awarded having regard to the defendant's contentions concerning the cause of the plaintiff's right knee problems.
It is difficult to determine how much of the expenditure for treatment as identified in Exhibit "E" specifically refers to the aggravations due to the further injuries sustained by the plaintiff on 12 February 2011 and 18 August 2012.
Whilst it is possible to identify some specific treatment costs on those dates (at pages 6 and 24 of Exhibit "E"), it is difficult to discern which treatment costs incurred after those dates are wholly due to the subject accident, and which amounts may be due to treatment needs caused by non-compensible aggravation injuries for which the defendant is not responsible. Both parties carry an onus of proof in respect of the contentions and counter-contentions in that regard: s 5D of the CL Act: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
On the evidence, doing the best I can to achieve a fair balance between the parties on those matters, I consider the most appropriate way of acknowledging the defendant's position on those matters is to apply a general buffer discount to the total amount identified in Exhibit "E". I therefore consider that the amount claimed for past out-of-pocket expenses should be rounded down to $100,000.
I therefore assess the plaintiff's damages for out-of-pocket expenses in the amount of $100,000.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $150,000 (b) Past loss of earning capacity $179,977 (c) Future loss of earning capacity $250,658 (d) Past domestic assistance $5,460 (e) Future domestic assistance $20,000 (f) Future treatment expenses $25,000 (g) Past out-of-pocket expenses $100,000 Total $731,095

Disposition

The plaintiff is entitled to a verdict and judgment in his favour in the amount of $731,095 without discount for alleged contributory negligence.
The defendant has asked that it be noted that the defendant is entitled to some credits to be offset against the amount of the judgment when satisfying that judgment. Those credits total $99,142.95. In that regard, the defendant has made payments pursuant to s 83 of the MAC Act in the amount of $69,142.95 and an advance made in the sum of $30,000 on account of damages: T148.

Costs

The plaintiff is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $731,095; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2015

At a glance

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Judgment (46 paragraphs)

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Cases Cited (39)