Murphy v Madill [2025] QSC 103

• [1] The plaintiff seeks damages for personal injuries which arose out of two motor vehicle accidents. The first motor vehicle accident occurred on 10 January 2017. The plaintiff was not a party to the accident but came upon it on his way home from a medical appointment. He found a man lying on the road surface near a prime mover truck and sought to render aid. That man had earlier been struck by a motor vehicle driven by the first defendant, causing him to sustain serious injuries from which he passed away. The plaintiff says that he suffered a psychiatric injury as a result of his experience of the trauma of that accident.
• [2] The second motor vehicle accident occurred on 28 August 2019. The plaintiff was driving his motor vehicle in a southern direction on the Pacific Motorway near Upper Mount Gravatt. The plaintiff's motor vehicle was hit from behind by the second defendant's vehicle. The plaintiff alleges that he suffered an exacerbation of his psychiatric injury, in addition to suffering physical injuries.
• [3] The third defendant is the insurer for both the first and second defendants.
• [4] Liability is not in issue in this case. It is accepted that both the first and second defendants had been negligent in their actions which had caused the two motor vehicle accidents. It is not in dispute that a duty of care was owed in each instance by the respective defendants to the plaintiff to use reasonable care in the operation of their vehicle so as to avoid causing him injury, including psychiatric injury.
• [5] No contributory negligence issues arise in this case.
• [6] The real issues in this case concern:
  • what injuries were suffered by reason of each accident; and
  • what damages follow from each injury.
• [7] Within these two real issues there are a number of sub-issues. This case is complex because the plaintiff has longstanding psychiatric conditions derived from childhood trauma. The plaintiff also has been diagnosed with Autism Spectrum Disorder ("ASD"), which further adds to the complex pre-accident psychiatric makeup of the plaintiff. Despite these past issues, the plaintiff had been gainfully employed or engaged in various types of study for a large part of his life.
• [8] In these reasons, I will:

(a) seek to deal with and make findings in respect of the background facts and the psychiatric state of the plaintiff prior to the events the subject of this proceeding;

(b) make findings in relation to the two motor vehicle accident events;

(c) make findings in relation to the injuries suffered by the plaintiff from each of the events;

(d) make findings in relation to how the injuries suffered in each of those events have affected the ability of the plaintiff to continue to seek gainful employment; and

(e) make findings in relation to the various other heads of damages which are sought in terms of quantum.

• [9] I should note at an early stage that there was a significant attack on the credit of the plaintiff, both in cross-examination and in final submissions. As with most cases, credit is rarely black and white. The evidentiary analysis process requires that the court examines the totality of the evidence, including objectively provable facts and reasonable inferences which can be drawn from those objective facts on the balance of probability. In the case of the plaintiff, it is important to bear in mind that he has suffered psychiatric injuries as a result of both accidents, has pre-existing psychiatric conditions associated with his childhood trauma, and has ASD.
• [10] As I recognised in the decision of Kemp v Gold Coast Hospital and Health Service [2024] QSC 259, the hallmark of cases similar to the present kind is that evidence given by a party with a psychiatric injury may well be affected by their condition. I, again, cite with approval the observations of the Victorian Court of Appeal[1] in Stevens v DP World Melbourne Ltd [2022] VSCA 285 as follows:

"Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment. In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff's evidence, might have been the product of the mental injury that arose in the course of the plaintiff's employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness's evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness's evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff's mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff's evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence."[2] (footnotes omitted)

• [11] I will bear in mind these observations when considering issues of the credit in respect of the plaintiff.

Background facts prior to the two motor vehicle accidents

• [12] The plaintiff was born on 24 April 1974 and, accordingly, is 51 years of age.
• [13] It is uncontroversial that during the plaintiff's childhood he had a number of traumatic experiences which I will refer to as his "Childhood Trauma".
• [14] It is unnecessary to go further in describing the Childhood Trauma as the circumstances are adequately identified in the relevant psychiatric reports of Dr Lockwood and Dr Duke (being the psychiatric experts who were called in this case), and the notes of Dr Kerr, who has been the plaintiff's treating psychologist for some time.[3]
• [15] Dr Lockwood was a psychiatrist called by the plaintiff. She proffered the opinion that since early in the plaintiff's life, he has experienced chronic symptoms of mood problems, hyper-vigilance, avoidance, relationship difficulties and detachment, loss of trust, some intrusive re-experiencing symptoms, and a compensatory focus on achievement, independence and safety. Dr Lockwood noted that the plaintiff's medical records identified that the plaintiff had been diagnosed with a pre-existing chronic ICD-11[4] diagnosis of Complex Post-Traumatic Stress Disorder, a diagnosis which incorporated, in her view, many developmental effects consequent on the plaintiff's Childhood Trauma. Dr Lockwood identified that this diagnosis was consistent with a DSM-V[5] diagnosis of Chronic Post-Traumatic Stress Disorder, and throughout the plaintiff's life, he had a number of chronic symptoms of this disorder, with variations in symptom severity and impact over time. Dr Lockwood recorded that the plaintiff had previously been diagnosed as having a Major Depressive Disorder by Dr Adem Can, a consultant psychiatrist who he started seeing in June 2015, and was then additionally diagnosed by Dr Can as having a General Anxiety Disorder in August 2016.
• [16] I accept the opinion of Dr Lockwood in respect of the plaintiff's pre-existing symptoms and the evidence that he had historically suffered from the other identified disorders.
• [17] At one time, the plaintiff had been mentored and counselled by a Mr John Guy. It is evident on the material that this had been beneficial to the plaintiff. In 2012, Mr Guy had referred the plaintiff to Dr Katelyn Kerr. Dr Kerr has been treating the plaintiff since 2012. Again, on the material it is evident that this has been beneficial to the plaintiff. A large portion of Dr Kerr's notes were tendered in the proceeding.

(a) the plaintiff's black and white thinking;

(b) the plaintiff being rules driven and having cognitive rigidity; and

(c) the plaintiff having a lot of difficulties being flexible in his thinking at times.

• [20] Dr Kerr identified that she was not qualified to give a diagnosis in the area of Asperger's Syndrome. In consequence of this, she decided that it was appropriate for somebody with more experience and expertise than herself in the specific area of Autism Spectrum Disorder ("ASD") to see the plaintiff.
• [21] Ultimately, the plaintiff went to see a specialist in this area, being a Dr Zimmerman.
• [22] Dr Zimmerman gave short evidence at the trial, and at least some of his treating records were also put into evidence.
• [23] After Dr Zimmerman had seen the plaintiff, he participated in a telephone call with Dr Kerr. Dr Kerr's recollection of the telephone conversation with Dr Zimmerman on 13 June 2018 was consistent with her file note of that conversation. Namely, that Dr Zimmerman said the plaintiff may meet ASD criteria, as well as traits of a personality disorder, but that was complicated by PTSD[7] and the Childhood Trauma history.
• [24] Dr Zimmerman, in his evidence-in-chief, was more emphatic in respect of his diagnosis. He said that he had confirmed the diagnosis of ASD for the plaintiff. I note that his records of the conversation with Dr Kerr are to the effect, "Confirm Dx of ASD...". Dr Zimmerman had seen the plaintiff on three occasions prior to this telephone call.
• [25] In oral evidence, Dr Zimmerman went through and explained some of his notes which related to his diagnosis of ASD. That explanation included that the plaintiff had poor communication skills and had a poor theories of mind, otherwise known as perspective taking. Within the notes of Dr Zimmerman, there was a documented series of answers to questions which were used in aide of a diagnosis of ASD using the DSM-V[8] criteria. Dr Zimmerman identified that the plaintiff's answers to those questions were consistent with a diagnosis of ASD.
• [26] Dr Zimmerman, in his cross-examination evidence, accepted that it was difficult to diagnose ASD in someone who suffers from PTSD. He accepted that in his notes from his third and last session with the plaintiff that he recorded:

"Impression is ASD. Explore Depression in next session. Complex PTSD history with Detached personality features likely associated with [Childhood Trauma] & ASD characteristics."

• [27] I find that the plaintiff did have ASD prior to the first accident, albeit it was co-existent with a complex PTSD, as well as detached personality features.
• [28] In doing so, I accept the evidence of Dr Zimmerman, who is an expert in the field of ASD. His ultimate evidence was that he had actually made the diagnosis of ASD. Dr Zimmerman did not depart from his view of this diagnosis at trial.
• [29] Dr Zimmerman went on to accept under cross-examination that a mere diagnosis of ASD does not, in and of itself, mean that a person cannot pursue any particular career.
• [30] Dr Duke was a consultant psychiatrist called by the defendants. By reference to medical records from the Life Promotion Clinic pertaining to the plaintiff which were put into evidence, Dr Duke recorded a pre-existing diagnosis of PTSD and Major Depressive Disorder, both relating to the plaintiff's Childhood Trauma. Dr Duke also proffered a diagnosis in terms of the DSM-IV[9] Axis I to the effect that the plaintiff suffered from a pre-existing PTSD, with an associated Major Depressive Disorder related to the Childhood Trauma.
• [31] I accept the diagnosis of Dr Duke. It was broadly consistent with Dr Lockwood's opinion.
• [32] These diagnoses and opinions were also consistent with the historical diagnosis recorded in the medical records of the plaintiff.
• [33] As will be seen later in these reasons, the plaintiff had a level of insight into his psychiatric difficulties and actively sought treatment from a variety of practitioners. This included Dr Kerr.
• [34] I will explore later in these reasons the effect the ASD, together with the associated pre-existing PTSD and Major Depressive Disorder, had on the plaintiff's ability to perform functions within various work environments.
• [35] Before leaving this issue, it is relevant to note Dr Kerr explained that in relation to ASD that it is, in effect, a neurodiverse condition. She explained that a person is born this way, and it is not something that is going to develop over time. Dr Kerr explained that the relevance of obtaining the diagnosis was so that she could better understand the plaintiff's thought processes in order to enable her to explain things in a different way to the plaintiff. However, from a clinical point of view, Dr Kerr explained that there is not actually a treatment, as such, for ASD. Dr Kerr explained that as a clinician, what she would target would be interventions only in areas that a person finds distressing for themselves. If a person did not find having ASD distressing to them in any way, there is nothing which she, as a practitioner, would try to do to intervene, for example, to teach them social skills. Dr Kerr re-emphasised that it is only if the person was distressed that she would seek to intervene in this way. I accept this evidence by Dr Kerr.

Education and employment history of the plaintiff prior to the two motor vehicle accidents

• [36] In the period prior to the two motor vehicle accidents the subject of this proceeding, the plaintiff was able to obtain gainful employment and undertake a variety of vocational and academic courses. This was so, despite his psychiatric conditions summarised above and his ASD.
• [37] The plaintiff had completed secondary school up to Year 10, at which stage he then attended the Dalby Agricultural College. On 13 December 1991, he received an advanced certificate in agricultural production achieved over a two year period.
• [38] In 1992, the plaintiff commenced a Bachelor of Business Management with a major in marketing at the Queensland University of Technology. He did not complete the degree, and the plaintiff reported to Dr Lockwood that he had been academically excluded after two years.
• [39] Commencing in 1993 and at various times up to at least February 2001, the plaintiff worked at a paper converting company. His job at this place of work between 1993 and 1997 had included wrapping rolls of recycled toilet paper and indexing them in terms of stock control and then physically storing them with a forklift into the warehouse consistent to the index. A reference from the state manager of that business spoke in a positive way as to the plaintiff having improved processes within the business and within the business of a related company.
• [40] There was tendered into evidence a record of the plaintiff having completed a franchise management course between September to December 1995 with the University of New South Wales. Another certificate issued 17 May 1996 from an organisation called "The Franchise Association of Australia and New Zealand Ltd" indicated that by that date, the plaintiff had achieved an attainment in franchise administration. The evidence did not allow for any understanding of what study was involved in this certificate.
• [41] On 20 July 1997, the plaintiff enlisted in the Australian Army Reserve.
• [42] Within the Army Reserve, the plaintiff was operating as a field engineer and later as a combat engineer. He remained in the Army Reserve for about three and a-half years. When asked in evidence-in-chief why he left, the plaintiff stated, "Ultimately, I got bored."[10] The plaintiff identified that he had unsuccessfully applied to be an officer cadet. He attributed this unsuccessful application as being primarily due to his lack of education in not having finished Grade 12 at school and in not having a degree.

(a) Granite Traders;

(b) Alert Coffee;

(c) a caravan rental business, which later became a caravan buy and sell business; and

(d) Safe and Sound Building Society.

• [49] In relation to Granite Traders, the plaintiff gave evidence that in perhaps 2000 he was a 50 per cent shareholder of the company, with a family friend from Zimbabwe holding the other 50 per cent. The company's business was said to involve the importation of granite from Zimbabwe to Australia. No financial records for the business were provided. The highest the evidence rose was that the plaintiff said there was an actual turnover of $1.5 million, or the business had a credible projection of a turnover of $1.5 million, such that the Australian Government let the family friend immigrate from Zimbabwe. The plaintiff indicated that after the family friend immigrated, he sold his shares to the family friend. The value of that sale was not identified, and the profitability or otherwise of the company was not established.

• [50] In relation to Alert Coffee, the plaintiff indicated that when transporting the granite, coffee was also transported with the granite. It is not clear how this business was constituted.
• [51] Again, no financial records for the Alert Coffee business were provided. The plaintiff, at some stage, decided not to continue the coffee business because he said there were other projects which were a more economical use of his time. The profitability or otherwise of this business was not established.

(c) Caravan rental business and caravan buy and sell business

• [52] In relation to the caravan rental business and the caravan buy and sell business, the plaintiff gave evidence that, at some unknown time, he bought 13 caravans and rented them out for a total rental income of approximately $1,000 per week. He identified that he operated this business with a neighbour at Loganholme. The plaintiff identified in relation to the selling portion of the caravan business that at one stage he formed the view that he may be able to make more money by buying and selling caravans, instead of renting them. The buying and the selling of caravans portion of the business was said to have been solely carried out by the plaintiff.
• [53] Again, no financial records for these businesses were provided. The profitability or otherwise of these businesses was not established.
• [54] The plaintiff gave evidence that he ceased this business because he had a better economic opportunity.

• [55] In relation to the Safe and Sound Building Society, the plaintiff gave evidence that he first started thinking about a business which could raise capital cheaply, in about 2001, when he was working at the paper recycling business.
• [56] The plaintiff identified that sometime later when the Aalert Training business was in operation, a Mr Waters was an employee within that business. Mr Waters had been an officer in the Australian Airforce and, whilst in that role, had been involved in setting up a building society for air force personnel.
• [57] Mr Waters was identified by the plaintiff to now be deceased.
• [58] The plaintiff's evidence was that with the assistance of Mr Waters and a Mr Clive Kay, he was able to establish a business that he described as a corporate building society.
• [59] The plaintiff gave evidence that an application to start the building society had been lodged in or about April 2008. This application was identified as having been lodged in New Zealand and not Australia.
• [60] The plaintiff gave further evidence as to how the building society business was conceived. The plaintiff gave evidence that between 2001 and 2008 he had done a lot of research. He said that he had systematically tabulated the global requirements for bank licences, with a focus on English-speaking jurisdictions. The plaintiff said that he (and the other two men) had the money, had no criminal history and had the know-how. When asked about what he meant by 'know-how' within this group of people, the plaintiff identified that Mr Kay had a Masters of International Finance and that the plaintiff had an uncle in New Zealand who had extensive commercial experience. The plaintiff had previously identified that Mr Waters had the experience of being involved in the establishing of a building society for the air force.
• [61] The plaintiff said the reason New Zealand was attractive as the location for the business was because it only had a $200,000 capital requirement at the time for such a business, as opposed to a $20 million capital requirement which was said to exist in Australia.
• [62] The plaintiff gave evidence that he and Mr Kay were involved in the operation of the Safe and Sound Building Society, which was set up via a corporation. However, the plaintiff then gave evidence that he never personally moved to New Zealand and that the operation of that business occurred whilst he was still running the Aalert Training business. The plaintiff said that whilst he received a director's salary from Aalert Training, he did not receive any wage from the Safe and Sound Building Society.

Further academic and vocational activities up to the first motor vehicle accident - 10 January 2017

• [69] I turn then to the evidence of further academic and vocational activities.
• [70] A March 2004 Statement of Attendance for Website Development was tendered. That certificate referred to a 12 hour course.
• [71] A 10 June 2005 certificate described as "Developer of Enterprise" from an organisation known as "achaeus" was tendered. This certificate did not identify how long the course was for.
• [72] A 20 March 2009 commercial property agent's licence was tendered.
• [73] A 21 July 2010 Graduate Certificate in Business from the University of Southern Queensland was tendered. The certificate did not identify how long the course was for.
• [74] A 19 July 2012 Certificate IV in Training and Assessment was tendered. The evidence was not clear as to exactly who issued the certificate and how much training was involved in it.
• [75] By August 2015, the Aalert Training Assessment business was closed down.
• [76] From 30 November 2015 to 12 February 2016, the plaintiff was a summer intern with Macquarie Bank Limited in its Wealth Management Division, but was not offered a position after his internship finished.
• [77] On 26 August 2016, the plaintiff obtained a Bachelor of Laws from the University of Southern Queensland. No transcript of the plaintiff's results in this bachelor degree was tendered into evidence.
• [78] On 10 November 2016, the plaintiff obtained a Graduate Diploma of Legal Practice from the College of Law.
• [79] By December 2016, the plaintiff had applied to be admitted to practise as a solicitor. On or about 12 December 2016, the Legal Practitioners Admissions Board ("LPAB") had reported that the plaintiff's application would be held up due to the need to investigate complaints which had been made by third parties against the plaintiff.[11]

The first motor vehicle accident - 10 January 2017

• [80] As identified previously, there is no dispute about liability arising from the first motor vehicle accident. Nor is there any dispute amongst the plaintiff's and defendants' expert psychiatrists that a level of psychiatric injury was suffered as a result of the first accident.
• [81] The details of what occurred at the first accident are relevant solely as general background explaining why the psychiatric injury was suffered, and also due to there being a credit attack against the plaintiff in relation to aspects of his version of the accident and its immediate consequences.
• [82] In short, at about 12.25 pm on 10 January 2017, when driving in a southerly direction on the Gateway Motorway at Stretton, the plaintiff came across a man (a Mr Holland) lying on the road surface near a Kenworth prime mover.
• [83] Mr Holland had been in charge of the prime mover, and had pulled over to the left-hand side of the Gateway Motorway at Stretton and alighted from the vehicle. At a point in time after Mr Holland had alighted from the prime mover, the first defendant struck Mr Holland, causing injuries from which Mr Holland ultimately passed away from.
• [84] Having come across the scene, the plaintiff stopped his vehicle to investigate. His initial action was to go to Mr Holland to seek to render aid. The plaintiff's evidence was that, at that time at least, he thought Mr Holland was still alive.
• [85] The plaintiff's evidence was that, having surveilled the scene, he was concerned about the prime mover losing its load onto the Gateway Motorway, and this caused him to be concerned about the potential for further accidents to occur. He said he made the decision to move away from Mr Holland in order to seek to secure as best he could the prime mover's load.
• [86] The plaintiff identified that at some stage another motorist stopped. That motorist was a nurse. After the nurse had examined Mr Holland in some way, she identified to the plaintiff that Mr Holland was not alive.
• [87] A recording of a Triple-0 call made by the plaintiff was tendered. In the Triple-0 call, there was a reference by the plaintiff to Mr Holland having passed away.
• [88] The plaintiff gave evidence that after this accident he felt real guilt in relation to his conduct in not having tried to save the life of Mr Holland and making the decision to seek to secure the load of the prime mover instead. The plaintiff also gave evidence of wanting to contact Mr Holland's family to let them know about what had happened, and to provide an explanation. The plaintiff gave evidence that he did not want to go through the police because he held feelings that the police might charge him in relation to the death of Mr Holland in some way.

(a) was animated in giving his evidence about this accident;

(b) showed emotion in doing so; and

(c) was somewhat dramatic in doing so,

I did not form the view that this was a confected performance.

• [97] The plaintiff was being asked to recall events, which on the psychiatric evidence of both sides had been traumatic to him, and had contributed to his current psychiatric state. There was nothing obviously inappropriate in the way that the plaintiff gave his evidence on this issue. I do not use the descriptor 'dramatic' in a pejorative sense. It appeared to me that the first accident was obviously a subject which still caused him upset when he was asked to recall it. Whilst the plaintiff was not physically injured by the accident, there is other supporting contemporaneous evidence which supports his evidence of feelings of guilt about what else he could have done for Mr Holland.
• [98] Thirdly, whilst I accept that the holding of a concern by someone in the plaintiff's position as an attendee at the accident scene that he or she might somehow be exposed to a risk of being charged with a serious criminal offence would objectively be seen to be an irrational view to hold, that objective position must be weighed against the competing evidence that such a view was, in fact, held. Here, that competing evidence includes contemporaneous records which support that the plaintiff, in fact, held such a view. Those matters can be summarised as follows.
• [99] In relation to the particular circumstances of the plaintiff, I note the following. The plaintiff identifies as a First Nations person. He gave evidence, which I accept, that within his early family environment he held a strong distrust of policing authorities. Within the plaintiff's medical records of his sessions with Dr Kerr, there are a number of corroborating references to his distrust of the police. No doubt this feeling of distrust has been exacerbated by his diagnosed ASD, which includes symptomology of rigidity in beliefs and fixed thought processes.
• [100] Next, there is a file note of Dr Kerr of 14 February 2017 which records, amongst other things, that the plaintiff wanted Dr Kerr to help work out a way that the plaintiff could get a letter to the motor vehicle accident victim's family without having to contact the Queensland Police Service. That file note is consistent with the plaintiff's evidence that he had the feelings which he identified as a mistrust of the Queensland Police Service and he had at least the commencement of thoughts that he might be charged with a serious criminal offence.

"Did he tell you why he didn't want to talk to the police service?---Yes. And I think I've understood that from previous times we talked about the Queensland police as well. And there was a sense of distrust about the police, given their role in a position of power. Also because of his indigenous heritage, there was a feeling of being persecuted by the police and unfairly pulled over in traffic stops before - and just a very high sense of distrust. And so he wanted to make sure that [Mr Holland's] family knew that he was cared for to the best of his ability but without having to ask the police for those details because he was so fearful of them."

• [102] Finally, an email of 10 January 2017 written by the plaintiff to Dr Kerr only a couple of hours after the first accident contained a draft letter he was thinking of sending to the deceased's family. The message in the covering email to Dr Kerr was, "Good letter, bad letter?" It corroborates that the plaintiff was seeking to provide some form of comfort to Mr Holland's family and an explanation of what happened.
• [103] Ultimately, I accept the plaintiff's evidence of what occurred at the first accident site and his having a feeling of some distrust of the police about the event and some feeling about wanting to comfort Mr Holland's family. I qualify my findings on this issue by observing that I am not satisfied that the concern of being charged by the Queensland Police Service and of personal guilt was strongly dominating the plaintiff's thoughts at this time. As will be touched on later, there was a period in 2017 after the first motor vehicle accident where there were indications that the accident was affecting the plaintiff psychologically, but those effects had largely resolved in terms of external manifestations of symptoms before the end of 2017. The absence of ongoing reference to the first accident in Dr Kerr's notes supports that any feelings of guilt and concerns with the police had materially receded in terms of symptomology. However, after the second motor vehicle accident, there is no doubt that this second event triggered, in an evident way, feelings of guilt, and concerns about being charged, in relation to the first accident. Dr Kerr's contemporaneous notes after the second motor vehicle accident corroborate these feelings having been experienced at that time as a matter of fact.
• [104] In rejecting the general credit attack, it is necessary to be nuanced as to the effects the two accidents had on the plaintiff over time.
• [105] I pause here to note that there was a separate but somewhat related attack on the plaintiff's credit which ought to be dealt with at this point. The submission was made that:[16]

"It is not possible to resist the conclusion that the Plaintiff (who had a law degree and was sufficiently able to have enlightened himself as to the decision in Caffrey v AAI Limited [2019] QSC 7) was behind the making of what it is submitted are quite untenable claims (as to which see below)." (footnotes omitted)

• [106] The footnote to that submission referred to the transcript at 3-49 l 20 and the decision of Caffrey.[17] The decision in Caffrey concerned psychiatric harm suffered by a police officer who was in the position of a "rescuer" at an accident. The submission seems to be that this psychiatric injury was only complained of at a date well after the accident due to the plaintiff being aware of the case. Implicit to that submission is that the injury may be exaggerated, or possibly invented.
• [107] I do not accept this related attack on the credit on the plaintiff. It is quite possible that he did become aware of Caffrey at some stage, either by himself or through his legal representatives. However, whether that did or did not occur is irrelevant. Liability in this case is not in issue and the defendants' own psychiatric expert witness accepts that there was a level of psychiatric injury suffered by the plaintiff as a result of the first accident. Further, I understood the reference to "quite untenable claims" to include the attack on the plaintiff's credit which I have dealt with above (which related to his fear of criminal prosecution). As I have broadly rejected that other attack on the plaintiff's credit, the underlying claims cannot be accurately described as untenable.
• [108] This attack on the plaintiff's credit should also be rejected.

Employment and academic pursuits of the plaintiff after the first motor vehicle accident to the second motor vehicle accident - 28 August 2019

• [109] On 28 February 2017, the plaintiff obtained a certificate for a Diploma of Financial Planning from an entity called the "Monarch Institute." The certificate did not identify how long the course was for.
• [110] On 28 March 2017, the plaintiff obtained a certificate for a Diploma of Finance and Mortgage Broking Management from an entity called AAMC Training Group. The certificate did not identify how long the course was for.
• [111] In 2017, the plaintiff continued to study accounting subjects at the University of Southern Queensland.
• [112] In October 2017, the plaintiff obtained a PMC Statement which certified he had completed the College of Law's Legal Practice Management Course. The plaintiff identified two reasons for undertaking that course; firstly, because he wanted to establish his own law firm, and secondly, he thought knowing what the director of a legal practice would be concerned about would make him a more "coachable"[18] junior solicitor.
• [113] In November 2017, the plaintiff stood in a political election for the seat of Logan, running as an independent. The evidence supports that on prior occasions he had sought pre-selection for the Liberal Party and for the Labor Party.
• [114] By 12 December 2017, the LPAB had informed the plaintiff that they were going to oppose his admission as a legal practitioner in the Supreme Court.
• [115] On 27 April 2018, the plaintiff obtained a Bachelor of Commerce from the University of Southern Queensland. No transcript of the plaintiff's results for this bachelor degree was tendered in evidence.
• [116] The plaintiff gave evidence that he had worked for a company called "Australian National Legal Service" under the supervision of a Mr Alex Tees at some time. No real detail of this work emerged, and it may have been before his admission as a solicitor. It is certainly before 1 August 2018. The plaintiff could not say how long this work had been for.
• [117] In the first half of 2018, the LPAB dropped its objection to the plaintiff being admitted as a solicitor. The plaintiff was then admitted as a solicitor in the Supreme Court on 6 June 2018.
• [118] The notes of Dr Kerr of 4 July 2018 recorded the plaintiff having difficulties finding a job at that time.

So - - -?---Supervision doesn't have to be face to face."[19]

• [122] The plaintiff accepted that Cusack and Associates had no support staff at its office.
• [123] No clear evidence was led to identify what, if anything, Cusack and Associates earned prior to 1 November 2018. A financial document was tendered that contained a financial summary for the 2018/2019 financial year for Cusack and Associates Pty Ltd. It records a total of gross sales of goods and services as $1,120 for the taxation period, with a net income of $1,008 for the same period. Whatever may have been earned in fees between 1 August 2018 and 1 November 2018, it was likely to have been a nominal amount.
• [124] On 1 November 2018, the plaintiff commenced employment at Lillas & Loel Lawyers ("Lillas & Loel") as a solicitor.
• [125] On 22 February 2019, the plaintiff walked out of the Lillas & Loel offices following a human resources review meeting. Lillas & Loel then suspended the plaintiff's employment until 4 March 2019. The plaintiff was asked to attend a review meeting on 4 March 2019 upon his return to work. The plaintiff declined to attend this review meeting.
• [126] On 6 March 2019, the plaintiff was advised that his employment had been terminated as of 5 March 2019.
• [127] At some stage after the termination of his employment with Lillas & Loel, the plaintiff recommenced the operation of Cusack and Associates through the same corporate entity as before. Mr Cusack at that particular time seems to have been no longer involved in supervision, rather a Ms Adrienne Soo now filled that role. The plaintiff still only held a restricted practising certificate.
• [128] It may be that Mr Cusack remained a director of the company, but at that particular time it was Ms Soo who supplied the principal's practising certificate required for the corporate entity to carry out a legal practice. For the financial year ending 30 June 2021, one financial record shows Mr Cusack being paid just over $8,000. It may be that Mr Cusack returned in a later year to some supervisory role. The evidence was unclear on this fact, but the payment supports such an inference.
• [129] The plaintiff did not have any recollection of there being other persons in the firm doing clerical work at any point.

The second motor vehicle accident - 28 August 2019

• [130] The second motor vehicle accident occurred on 28 August 2019.
• [131] The plaintiff was travelling in the left-hand lane of the freeway heading towards the Gold Coast. Just south of Upper Mount Gravatt, the plaintiff attempted to leave the freeway. The plaintiff was indicating for the exit but had not yet reached the dotted line for the turn. The plaintiff's motor vehicle was hit from behind by the second defendant's vehicle. The plaintiff said that his first sensation as a result of the collision was of flying. He said that he recalled his neck hurt and he called an ambulance. The plaintiff's evidence was that his car was written off. The plaintiff recalled smelling fuel at the scene of the accident. The plaintiff was not taken away in an ambulance.
• [132] The plaintiff gave evidence that he started to feel pain in other parts of his body maybe a day or so later.
• [133] The plaintiff said that he felt pain in his right shoulder, the left-hand side of his neck, the left-hand side of his jaw and left shoulder, down the left-hand side of his spine, his left-hand side hip, his left thigh and his left lower leg.
• [134] Liability for this accident is not in dispute. I accept the plaintiff's evidence set out in paragraph [131] above.
• [135] It is uncontroversial on the psychiatric evidence that this accident caused further psychiatric injury to the plaintiff, or exacerbation to the plaintiff's existing psychiatric conditions. It is also uncontroversial that this accident caused some physical injuries to the plaintiff. An issue to be resolved is the extent of the injuries, and how those injuries affected the plaintiff's entitlement to loss and damage. I will make findings in respect of what injuries were suffered later in these reasons. These findings include that this second accident did not cause the plaintiff's subsequent injuries to his right shoulder and hips.

Employment of and study by the plaintiff after the second motor vehicle accident

• [136] After the second motor vehicle accident on 28 August 2019 until sometime in the latter of the first half of 2021, the plaintiff continued to carry on the operation of Cusack and Associates. The plaintiff remained the sole earning solicitor and there is no suggestion that he employed any support staff during this period.
• [137] Ms Soo remained as supervisor and held the principal's practising certificate. The evidence does not establish that Ms Soo was practising as a solicitor in a fee earning capacity within the practice. Exactly what supervision Ms Soo actually provided is uncertain on the evidence which was led.
• [138] During the identified period referred to above, the evidence does not allow for a clear finding of exactly how much the plaintiff worked as a practising solicitor. The plaintiff's evidence was that he sought to work every day, but after the second accident, he spent a lot of time being tired, angry and confused. He also stated that after the second accident, his ability to make an effort had declined. This evidence was consistent with the view of the plaintiff's expert psychiatrist that after the second accident, the plaintiff had decompensated.
• [139] During this period, the plaintiff had two complaints of unsatisfactory professional conduct or, alternatively, professional misconduct, made against him. The complaints had been made by two other solicitors. The allegations were broadly as follows:
  • that on 29 January 2020, it was alleged that the plaintiff had failed to be honest and courteous in his correspondence with a solicitor, being a Mr Gill, by inferring that Mr Gill's client was a murderer;
  • on 6 March 2020 and 30 March 2020, it was alleged that the plaintiff had sent Mr Gill copies of newspaper articles about a solicitor who had been found guilty of extortion, which by inference was suggestive that Mr Gill had engaged in some sort of misconduct;
  • on 1 August 2020, it was alleged that the plaintiff had directly contacted the client of another solicitor, a Mr Evans, without consent, and with the knowledge that the client was legally represented by Mr Evans;
  • on 17 and 20 August 2020, it was alleged that the plaintiff had sent correspondence that displayed a lack of professional courtesy to Mr Evans, who was at that time a practising solicitor.

"...I am satisfied that there is a reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct by a disciplinary body, but it is in the public interest to dismiss the complaints. Accordingly, pursuant to s 448(b) of the Act, I have decided to dismiss both complaints."

• [141] In relation to these complaints, the plaintiff said that he undertook certain remedial steps. In this respect, he said he went back to school and undertook Grade 11 and 12 English, he reviewed the relevant Rules, and he apologised to the complainants.
• [142] The plaintiff gave evidence that during this period he could see that he was going downhill faster, both in terms of his mental state and his physical state having reduced capacity. The plaintiff said that his judgment was off, as he thought his communications had been gentile and collegial, but that the Legal Services Commissioner thought he had been inappropriate. The plaintiff said that obviously when he had engaged in the conduct he thought it was appropriate, and this represented his lack of judgment. The plaintiff's evidence was that he thought he could not make good decisions anymore.
• [143] Finally, the plaintiff said that the nail in the coffin in terms of him practising as a solicitor was Dr Lockwood's report. The plaintiff sent that report to another solicitor and he received advice back that he would have to disclose the full report to the relevant professional authority in charge of the renewal of practising certificates. The advice of the other solicitor was that on disclosing the report there was zero chance of him being issued a practising certificate. That report included the opinion that the plaintiff was not then fit for practice from a psychiatric perspective.
• [144] The advice to the plaintiff included that if he did not disclose the report to the professional authority and he then obtained a practising certificate, then that would be considered fraudulent. The plaintiff's evidence was that as a result, he withdrew his application to renew his practising certificate, as this was the correct thing to do.
• [145] There is no suggestion that the plaintiff has been gainfully employed as a solicitor or otherwise after 30 June 2021.

Second motor vehicle accident - physical injuries

• [146] There were a number of alleged physical injuries the plaintiff claimed to have incurred as a result of the second accident. It is necessary to deal with these as a series of discrete points, as I have determined that some were causally related to the second accident, whilst others were not.
• [147] The principal witnesses in this area were Dr Shaw, an orthopaedic surgeon called by the plaintiff, and Dr Johnstone, an orthopaedic surgeon called by the defendants.

• [148] Dr Shaw, in his 14 March 2021 report, recorded that in relation to the cervical spine there was a musculoligamentous cervical spine injury with asymmetrical restriction of movement and muscle guarding on lateral flexion, which was consistent with DRE Cervical Category II, providing for five per cent whole person impairment.
• [149] Dr Shaw had earlier noted in his report that the plaintiff had a prior injury in the form of intermittent recurrent neck pain as a result of a motor vehicle accident in 2013.
• [150] Dr Shaw recommended allocating one per cent whole person impairment due to the pre-existing neck pain caused by the accident in 2013, thereby leaving a four per cent whole person impairment causally attributed to the second motor vehicle accident on 28 August 2019.
• [151] Dr Johnstone, in his report of 11 March 2021, observed, in part, that the plaintiff had walked with a normal gait at his examination and stood with an upright posture. He observed there was no obvious muscle wasting or spasm or malalignment to the cervical spine. In relation to cervical spine motion, he observed it appeared to be slightly asymmetric with pain. He noted there was 40 degrees of flexion and extension, 30 degrees of right lateral flexion and 25 degrees of left lateral flexion and 60 degrees of left and right cervical rotation. The plaintiff complained of tenderness all over his left paraspinal muscles and a gentle palpation causing a tingling sensation to the fingers on his left hand.
• [152] Dr Johnstone made comments on a 30 August 2019 X-ray of the cervical spine, noting:

(a) no fractures being evident;

(b) the vertebral body alignment being normal; and

(c) no spondylolisthesis.

• [153] Dr Johnstone noted that there were endplate osteophyte formations at the anterior aspect of C5/6, otherwise the disc spaces, facet joints and neural foramina were unremarkable and within normal limits.
• [154] Dr Johnstone concluded that as a result of the second accident, the plaintiff appeared to have suffered, amongst other things, a soft tissue injury to the cervical spine.
• [155] Dr Johnstone's assessment was that the plaintiff was suffering from a partial impairment to the spine and, currently based on his asymmetrical cervical spine motion, this would place him in Cervical Spine DRE Category II with a five per cent impairment. He said there was no additional percentage impairment for the effect on daily living activities, as he deemed that to be mainly psychological.
• [156] There was much cross-examination of Dr Shaw in relation to medical records which had periodically, over the years preceding the second motor vehicle accident, referred to the plaintiff suffering from neck pain and left shoulder pain, with one physiotherapist entry referring to there being chronic neck pain. Whilst Dr Shaw was initially taken aback when taken to the number of entries recording these events, they ultimately did not alter his opinion. He maintained his view that the five per cent assessment was appropriate, with one per cent of that assessment representing the past cervical spine impairment.
• [157] I accept the assessment of Dr Shaw in this respect.
• [158] I do so because Dr Johnstone ultimately accepted the same assessment.
• [159] The starting point for Dr Johnstone was that he identified in cross-examination that he had not allowed in his report any particular assessment of impairment arising from the pre-existing condition which the plaintiff suffered from.
• [160] Dr Johnstone had been involved in the production of a conference note dated 16 May 2023, which went into evidence. At paragraph [5(a)] of that note, there was a list of some nine summarised entries of what he was asked to assume constituted complaints made by the plaintiff to his general practitioner between 5 February 2015 and

25 March 2019, together with, at paragraph [5(b)], a summary of what he was asked to assume were complaints made to the plaintiff's physiotherapist on 15 May 2019 and 1 August 2019. I am satisfied that the substance of each of those entries were contained in medical records tendered in the proceeding. In the file note, Dr Johnstone then stated:

"[6] In those circumstances, it is not possible to say that the measured impairment, based on range of movement in the Plaintiff's cervical spine when I examined him at approximately 18 months post-accident was actually caused by the accident. The Plaintiff had significant pre-existing neck and shoulder problems which had troubled him over a number of years. In those circumstances, it is possible the motor vehicle accident produced some ongoing increased symptomatology for a short period of time, but that the Plaintiff's longstanding ongoing problems are related to a degenerative ageing process rather than the motor vehicle accident.

[7] Historically, it is difficult to say as to whether the Plaintiff had an impairment of the cervical spine prior to the 2019 motor vehicle accident however on the history I am asked to assume, it is probable that he had a similar level of impairment to that which I assessed."

• [161] In cross-examination, Dr Johnstone accepted that none of the entries that he was asked to assume had any details of any accurate measurement of the plaintiff's movement in relation to the then pain being referred to in the entries. Dr Johnstone identified that GPs and physiotherapists in their ordinary work would not necessarily make measurements in order to provide a base on which to assess impairment.
• [162] In cross-examination, the following exchange occurred:[20]

"And, Dr Johnstone, it would be right, then, that you could not disagree with the percentage impairment that Dr Shaw found, which was a five per cent impairment of the cervical category 2 and his recommendation, Doctor, that one per cent of that impairment be allocated to the pre-existing neck pain, which he obviously had identified in his report, leaving a resulting impairment from the accident on the 28th of August 2019 of a four per cent impairment; you couldn't disagree with that, could you?---No, I won't - that - that's - that is a lesser impairment than what I have given in my report and I have no objection to that level of impairment, no."

• [163] This concession was made by Dr Johnstone, despite the content of his file note.
• [164] Even though there was no base recorded range of movement accurately done prior to the second motor vehicle accident, I find that the assessment of an overall five per cent impairment of the whole person with a reduction of one per cent for the pre-existing condition is appropriate. There is no doubt that there was a pre-existing condition and that over the years there were periodic flare ups of that condition with resolutions, however based upon the expert evidence, I find that the second accident caused a four per cent impairment to the whole person.

• [165] The next issue is whether the injury to the plaintiff's right shoulder was caused by the second accident.
• [166] There is no dispute that the plaintiff has an injury in the form of a frozen right shoulder.
• [167] Dr Shaw, in his 14 March 2021 report, recorded being informed on that date that the plaintiff's right shoulder continued to cause pain and there was a significant restriction of movement. Dr Shaw was told that the plaintiff avoided reaching overhead with his right arm and was limited reaching behind his back. The plaintiff told Dr Shaw it was sore to lie on his right side, and that he was unable to mow and garden due to this pain. The plaintiff recorded lowering the clothesline to be able to hang clothes out. The report recorded the gross restriction on right shoulder movement observed in the examination, including the following:

(a) Flexion - 100 degrees;

(b) Extension - 30 degrees;

(c) Abduction - 90 degrees;

(d) Adduction - 20 degrees;

(e) Internal rotation - 20 degrees; and

(f) External rotation - 40 degrees.

• [168] In contrast, the left shoulder had an identified full range of movement.
• [169] Dr Shaw identified a permanent impairment in respect of the right shoulder as being an upper extremity impairment for restriction of the right shoulder at 16 per cent, which subsequently converted to a 10 per cent whole person impairment.
• [170] Dr Johnstone, in his report of 11 March 2021, recorded that the plaintiff's right shoulder remained with less pain than the left, but marked restriction of motion. He recorded that the left shoulder was considered to have a normal range of movement, but also identified restrictions from his examination of the patient as follows in relation to the right shoulder:

(a) Flexion - 80 degrees;

(b) Extension - 20 degrees;

(c) Abduction - 70 degrees;

(d) Adduction - 10 degrees;

(e) Internal rotation - 20 degrees; and

(f) External rotation - 10 degrees.

• [171] In terms of his clinical findings concerning the nature and extent of the claimant's injuries, Dr Johnstone identified that the plaintiff suffered a soft tissue injury to his spine. No mention was made of the frozen right shoulder. When it came to Dr Johnstone's assessment of the whole person impairment, no part of his assessment included an impairment for the frozen right shoulder.
• [172] In the 16 May 2023 conference note previously referred to, Dr Johnstone confirmed that he had not allowed for any permanent impairment assessment in relation to the frozen shoulder. He stated that he adopted this course because, in his view, the right shoulder condition was not causally related to the motor vehicle accident.
• [173] Dr Johnstone then explained in his 16 May 2023 conference note that position for the following reasons:

"[3] My opinion as to the lack of a causal relationship between the accident and the Plaintiff's right shoulder condition is because:

(a) It is rare to see a frozen shoulder suffered as a result of a motor vehicle accident.

(b) If a right frozen shoulder was suffered in the 2019 accident, it is difficult to see as to how the left shoulder did not suffer the same condition in the same accident.

(c) The first recorded complaint of right shoulder symptoms was on or around 20 April 2020)[sic] (eight months post the August 2019 accident);

(d) A frozen shoulder is a painful condition and it is likely that the Plaintiff would have consulted medial [sic] advisors and complained about it had such a condition been present;

(e) As such the earliest point in time at which it could be said that the Plaintiff developed the right shoulder condition was eight months after the accident;

(f) Frozen shoulder usually develops without any identifiable cause and that is what occurred here;

(g) There is accordingly no medical basis to link the condition of the Plaintiff's shoulder to the accident."

• [174] Dr Johnstone further identified[21] that, absent any right shoulder injury, the plaintiff would have retained a capacity to undertake any of the following daily activities:

(a) groceries;

(b) cooking meals;

(c) snacks and drink preparation;

(d) mowing and whipper-snippering, ironing and vacuuming; and

(e) mopping, bathroom cleaning.

• [175] Dr Johnstone was cross-examined in relation to his explanation as to why the frozen shoulder was not causally related to the accident. In relation to paragraph [3(a)] set out above, to the effect that it was rare to see a frozen shoulder suffered as a result of a motor vehicle accident, Dr Johnstone accepted that it was possible but not probable to see a frozen shoulder caused by such an accident.
• [176] In relation to the matter raised in paragraph [3(b)] set out above, Dr Johnstone provided a further explanation that the plaintiff had been presenting with left shoulder pain at the time of the second accident. He said the right shoulder was not mentioned in the medical records, and it should have been if the plaintiff had suffered a frozen shoulder from the time of the accident.
• [177] It was then suggested to Dr Johnstone that when someone suffers from multiple injuries, it can be the case that one injury or more takes precedence in the person's mind over another, so that they may feel more pain in one area than the other and not really talk about one area. Dr Johnstone agreed with that proposition, but went on to say that the pain from a frozen shoulder is exquisitely sore and often needs very strong narcotic medication, even to help settle some of that pain, so this pain would have been known at the time. Dr Johnstone further stated that the plaintiff would not have missed having frozen shoulder symptoms.
• [178] It was then put to Dr Johnstone that if someone was taking pain relief medication for other symptoms, that might mask the pain from the frozen shoulder. Dr Johnstone disagreed with that notion and stated again that a frozen shoulder is exquisitely sore and is often very difficult to control with the available over the counter type medication.[22]
• [179] In further answers to cross-examination, Dr Johnstone identified that about 20 per cent of people who have frozen shoulder do not fully recover their motion as a result of the condition, and that generally there is around six to nine months of pain and then following the easing of pain, resolution of the range of motion lost. He stated that during the process of full healing, the last part of that is generally pain-free.
• [180] The cross-examination of Dr Shaw on this issue was important.
• [181] It should be noted that medical records and physiotherapy records were put into evidence. They included a physiotherapy assessment on 31 August 2019, which has a marked visual reference to areas of the body where the plaintiff was then said to be suffering pain. The right shoulder is not indicated as being the subject of any pain. There is no reference in the various medical records of any issue in relation to the plaintiff's right shoulder until 27 April 2020, when it appears in the records of the Marsden Clinic. This is despite there being reference to pain in the left shoulder shortly after the accident and on other occasions up until that date.

"See, you might have had pain in your neck and your left shoulder in the accident, but those other problems - hips, right shoulder, low back, all came on later, didn't they?---I'm getting much worse as time progresses, yes.

Didn't ask you that. I asked if they all came on much later?---Well, I've got no reason to believe Dr Boubaris would make a false record.

Neither do I, but what I'm pointing to you is are you accepting that they came on much later?---Do I accept that they came on later? Yes.

• [184] There had been some prior evidence given by the plaintiff which suggested that these injuries had come on in the days immediately following the accident, but that evidence ought not be accepted in light of the various medical records and the answer of the plaintiff referred to above. I accept the evidence of Dr Johnstone that the pain from an initial frozen shoulder would have been exquisite and would have been something which the plaintiff would have been well aware of had it occurred immediately after the first accident. I accept the evidence of Dr Johnstone that the pain would not have been masked by use of pain reducing medication. The medical records are contemporaneous documents and support the finding that the right shoulder injury only manifested in late April 2020, some approximate eight months after the second motor vehicle accident.
• [185] Importantly, Dr Shaw was then cross-examined on this issue and the following exchange occurred:[25]

"Yeah. Doctor, can I ask you about so-called frozen shoulder, or adhesive capsulitis? When you gave your opinion in March of 2021, were you of the view or the understanding that his right shoulder problems had arisen close in time to the accident, within a - you know, a few days or a week or something?---Yes, yes, I - that was my understanding.

Doctor, if it were the truth that he had no symptoms in his right shoulder at the time of the accident and that his right shoulder symptoms only arose in April 2020, leading to restriction of movement of the right shoulder, that would mean that it was very unlikely to be related to the motor vehicle accident, wouldn't it?---Yes, that would be correct.

And more probably than not, it was related to an idiopathic or condition of frozen shoulder?---With that delay in presentation that you mention, yes, I would agree with that."

• [186] In response to a question asked by the Court as to what idiopathic meant, Dr Shaw explained in part that the most common cause of frozen shoulder is idiopathic, which means that there is no known cause and it just happens. Dr Shaw identified that the group of people most frequently affected are those between the ages of 40 - 65, and females more than males.
• [187] In re-examination, the following exchange then occurred with Dr Shaw:[26]

"And in Mr Murphy's case, is it - I would like you to assume that it was April 2020 when he first identified the difficulties he was having with his right shoulder, but he had earlier identified other issues as a result of the 28 August 2019 accident. Did he identify that for you at the time of the exam?---Yes. My understanding is that, as a result of the accident on the 28th of August 2018 [sic], he has soft tissue injuries to the shoulders and that subsequent to that, he developed adhesive capsulitis. So I accepted the relationship between the two. In other words, this was a post-traumatic frozen shoulder as opposed to an unrelated idiopathic frozen shoulder. That was my educated guess when I was interviewing Mr Murphy for the purposes of this report."

• [188] That last exchange does not take away from the answers which he gave in cross-examination. Dr Shaw clearly identified that his report was produced as a result of an understanding that the frozen shoulder had arisen close in time to the accident, being a few days or a week. Dr Shaw accepted that if it had only manifested by symptoms in April 2020, it was very unlikely to be related to the motor vehicle accident.
• [189] In relation to the evidence, I find that it was not until April 2020 that the symptoms of frozen shoulder emerged in relation to the plaintiff. I find this was approximately eight months after the second accident. I find that on the balance of probability the frozen right shoulder injury was an idiopathic injury not causally related to the accident, and accordingly whatever permanent impairment to the whole body that arose from this condition, it was not caused by the second accident.
• [190] I will allow zero per cent whole body impairment in respect of this particular injury as a result.

• [191] Dr Johnstone, in his 11 March 2021 report, recorded that in respect of the lumbar spine there was symmetrical movement with discomfort and placed it in the Lumbar Spine DRE Category I, with no impairment.
• [192] However, Dr Johnstone noted that with the plaintiff's ongoing pain he would be eligible under Chapter 18 for a two per cent impairment of the whole body. Dr Johnstone noted elsewhere in his report that the plaintiff's main issue with his lumbar spine was pain, and in respect of his examination, he had the following recorded:[27]

"[The plaintiff] was globally tender over the spine from C7 to the sacrum. He was tender along the left pelvic rim, but said gave him, when palpated, a nausea feeling. There appeared to be normal neurological function in the upper and lower limbs. [The plaintiff] was seen to be able to stand on his tiptoes and heels and undertake a partial squat. [The plaintiff] was seen to get in and out of a chair easily and on and off the examination couch easily."

• [193] In respect of the hips and the associated pain which the plaintiff had complained of, and which was sought to be linked to the second accident, a similar position pertained to that of the frozen right shoulder. That is, the contemporaneous medical records and physiotherapists records contained no complaints about pain in either hip prior to

• [194] Dr Shaw, in his 14 March 2021 report, recorded zero per cent whole person impairment for each of the thoracic spine, lumbar spine and permanent impairment for bilateral hip injuries.
• [195] In cross-examination of Dr Shaw, the following exchange occurred:[28]

"Yes. Okay. Now, can I ask you about hips, please, Doctor?---Yes.

The condition that this man suffers from in each hip is bursitis, is it not?---Trochanteric bursitis.

Yes. So an inflammation of the trochanteric bursa, or the - is that right?---Yes.

So the bursa being the fluid-filled sac which cushions the greater trochanter at the top of the hip?---Yes.

Yes. That is a degenerative process, is it not?---No, it's an inflammatory process.

I'm sorry, I've got that wrong, Doctor. With respect, you're quite right; it's an inflammatory process, commonly seen in people in their 40s and 50s?---Yes.

Doctor, if the symptomatology in the man's right hip did not emerge until late February 2020, when the accident was in late August 2019, again, it's unlikely that that's related to the motor vehicle accident, isn't it?---I would agree with that, yes.

And similarly, in the left hip, if it did not arise until about a month after - or late March 2020, it's unlikely to be related to the motor vehicle accident. Is that right?---Yes."

• [196] The medical and physiotherapy records I was taken to in submissions accorded with this cross-examination.
• [197] On the basis of the concession made by Dr Shaw, and in the absence of medical records identifying pain in the hips prior to February/March 2020, I find on the balance of probability that the injury to the two hips and the associated pain in those hips were inflammatory injuries not caused by the second accident. To the extent that the plaintiff gave evidence to the contrary, I do not accept it, but I prefer the contemporaneous medical records as to when the pain was first identified.
• [198] I will allow zero per cent whole body impairment in respect of the lumbar spine and bilateral hip injuries, but I will allow two per cent whole body impairment in respect of the pain associated with the lumbar spine.

(e) Conclusion - total whole body impairment from physical injuries

• [199] I will allow two per cent whole body impairment in respect of the pain associated with the lumbar spine, together with the four per cent whole body impairment in respect of the Cervical Spine injury.
• [200] In accordance with my findings above in respect of the physical injuries, I would allow six per cent whole body impairment associated with the second accident.

General Damages: Psychiatric injuries incurred by the first motor vehicle accident and the second motor vehicle accident

• [201] For the purposes of assessment of general damages, it is the psychiatric injuries incurred by the plaintiff which are the most serious. It is these injuries which the parties accept are relevant for the calculation of general damages.

• [202] The starting point is to note that Dr Lockwood and Dr Duke each calculated the whole person impairment percentage relating to the pre-existing psychiatric and psychological disorders as zero per cent. As Dr Duke explained in his 19 October 2022 report, although the plaintiff has a long history of emotional symptoms, including chronic suicidal and homicidal thoughts, the Psychiatric Impairment Rating Scale ("PIRS") assesses functioning rather than symptoms. Dr Duke assessed no evidence of significantly and sustained impaired functioning due to the symptoms prior to the accidents.
• [203] Each of the doctors calculated a whole person impairment at the time of their respective examinations of the plaintiff, which in each case was well after the second accident. Dr Lockwood's and Dr Duke's assessments, using the six categories of the PIRS, may be summarised as follows:

• [204] The reasoning behind Dr Lockwood's assessment is set out in her second report of

20 June 2022. The aggregate score is 15, with a median score of 3. The reasoning for Dr Duke's assessment is set out in his 17 November 2020 report. The aggregate score is 13, with a median score of 2. Applying the relevant PIRS schedule, Dr Lockwood results in a 15 per cent whole person disability, whereas Dr Duke results in a seven per cent whole person disability.

• [205] Ultimately, I find a seven per cent whole person disability. My reasoning is as follows.
• [206] First, I note that it was submitted on behalf of the defendants that there was really no basis to place the interpersonal relationship class into a Category 3 rather than a Category 2. In part, this was based on the fact that the plaintiff had subsequently established a relationship with Ms Hill, who gave evidence in this trial.
• [207] Whilst a number of witnesses noted changes in the plaintiff in terms of social interactions, it is apparent that the plaintiff has still maintained a relationship with them.
• [208] A Ms Fritter, who had known the plaintiff most of his life, had positive recollections of him being able to be charming and interact with people in the past, particularly when they were young adults. Ms Fritter said that the plaintiff now had less tolerance and had no filter. Ms Fritter identified that she noticed these changes in 2021, but they extended back to the 2020 financial year.
• [209] A Mr Scott Linden Jones gave evidence that after the second accident the plaintiff had complained of pain for the first time. He gave evidence that prior to this, they used to go paddleboarding regularly, but this had stopped.
• [210] A Mr Lock, who was the plaintiff's son, also gave evidence that starting around mid-2019, he had noticed some changes in the plaintiff. He noticed that the plaintiff would repeat himself significantly more than he had before, and during calls in the same week, the plaintiff would raise the same facts multiple times. Mr Lock noticed that the intensity of the plaintiff on topics increased and he was less agreeable. Mr Lock described that these might be personal topics, or they might be totally impersonal topics.
• [211] Mr Lock gave evidence of a planned trip to Winton. He placed it broadly in the 2022 period. Mr Lock recalled that the plaintiff told him that he did not think he could tolerate the car ride because of the pain he was suffering.
• [212] Mr Lock also recalled that his father had become significantly more pessimistic, with the plaintiff saying, "I don't think I contribute much to the world anymore. I think the world has seen the best of me." Mr Lock recalled being quite shocked when he heard that.
• [213] I accept the evidence given by each of Ms Fritter, Mr Linden Jones and Mr Lock.

• [225] The change in the interpersonal relationships class from a Category 3 to a Category 2 results in the cumulative figure being 14 and the median figure being 2.
• [226] Using the conversion table at Item 7 of Sch 5 to the Civil Liability Regulation 2014 (Qld), that results in a seven per cent impairment.
• [227] Item 12 of Sch 4 to the Civil Liability Regulation 2014 (Qld) deals with a moderate mental disorder said to be a PIRS rating between four per cent and ten per cent. The ISV range is 2-10.
• [228] Having regard to other injuries, I would adopt an ISV of 10.
• [229] Moving then to Sch 7 of the Civil Liability Regulation 2014 (Qld)[31], it is appropriate to use table 10 for an injury arising during the period 1 July 2019 - 30 June 2020. As will be explained below, whilst there was some symptomology arising from the first accident, I am satisfied that the PTSD arising from the first accident was delayed and only became florid upon the occurrence of the second accident. It is the second accident which occurred in August 2019 which should be used for the onset of the psychiatric injury causing a functional impairment.
• [230] General damages then have to be calculated by Item 2 in table 10 for an ISV of 10 or less but more than five, being $7,900 + (10 - 5) x $1,850 = $17,150.
• [231] I do not accept that separate general damages should be awarded for the first accident as it has not been established that any functional permanent impairment occurred on that occasion, and the two expert psychiatrists did not purport to assess a PIRS rating for a mental disorder as a result of the first accident.
• [232] Accordingly, general damages will be assessed as $17,150.

(d) Interest having regard to s 60(1)(a) Civil Liability Act 2003 (Qld)

• [233] I note that s 60(1)(a) of the CLA does not allow any interest to be applied to general damages. Accordingly, I have not applied any.

Past loss of earning capacity and future loss of earning capacity

• [234] The positions adopted by the parties for both past loss of earning capacity and future loss of earning capacity were diametrically opposed to each other.

• [235] The initial approach taken by the plaintiff was that both the first accident and the second accident caused the plaintiff loss in his earnings as a solicitor. The plaintiff's past loss to 7 August 2023 was claimed as follows and can be seen in Annexure "A" to the written submissions of the plaintiff:

(a) For the period 1 July 2017 - 30 June 2018. Gross earnings - $90,000. After tax weekly earnings of $1,289.14; 3.7 weeks loss, $4,788.23 + $19,500, equalling $24,288.23

(b) For the period 1 July 2018 - 30 June 2019 - $90,000. After tax weekly earnings of $1,291.14; 52.2 weeks loss, equalling $67,397.51

(c) For the period 1 July 2019 - 30 June 2020 - $90,000. After tax weekly earnings of $1,292.14; 52.2 weeks loss, equalling $67,449.71

(d) For the period 1 July 2020 - 30 June 2021 - $100,000. After tax weekly earnings of $1,437.70; 52.2 weeks loss, equalling $75,048.39

(e) For the period 1 July 2021 - 30 June 2022 - $125,000. After tax weekly earnings of $1,747.63; 52.2 weeks loss, equalling $91,226.59

(f) For the period 1 July 2022 - 7 August 2023 - $135,000. After tax weekly earnings of $1,864.20; 57.42 weeks loss, equalling $106,008.80

• [236] These calculations totalled $431,419.23, from which $52,848 for personal income tax was deducted as follows:

(a) 1 July 2017 - 30 June 2018: $0

(b) 1 July 2018 - 30 June 2019: $21,500

(c) 1 July 2019 - 30 June 2020: $17,848

(d) 1 July 2020 - 30 June 2021: $13,500 (estimated)

(e) 1 July 2021 - 30 June 2022: $0 (estimated)

(f) 1 July 2022 - 29 May 2023: $0

• [237] Accordingly, past economic loss was claimed of $378,571.23 up to 7 August 2023.
• [238] It is relevant to note that the plaintiff's calculation for past loss set out above claims for a period in the financial year 1 July 2017 to 30 June 2018, when the plaintiff was not admitted as a solicitor. There is no basis for a claim of loss of earnings for this period. This part of the claim was later abandoned.
• [239] The future economic loss calculations, as claimed, can be seen in Annexure "B" to the written submissions of the plaintiff. I note that the calculations double counted a period already claimed for past economic loss. Putting that to one side, and making an adjustment for the first period, the calculation can be summarised as follows:

(a) 7 August 2023 - 30 June 2024 - gross earnings of $157,000 were used, with $101,138.26 claimed;

(b) 1 July 2024 - 30 June 2025 - gross earnings of $168,000 were used, with $104,262 claimed;

(c) 1 July 2025 - 30 June 2026 - gross earnings of $177,000 were used, with $103,715 claimed; and

(d) 1 July 2026 - 24 April 2044 - gross earnings of $173,000 were used, with $1,181,990 claimed.

• [240] The total claimed for future earnings, therefore, was $1,491,105.26.
• [241] The plaintiff claimed these lost earnings as a legal practitioner. There is a separate claim by the plaintiff for lost earnings through entrepreneurial skills, which I will address later in these reasons.
• [242] For the purposes of the plaintiff's calculations, reliance was placed upon a report of 24 November 2022 and a supplementary report of 5 May 2023 from Ms Alex Correa, the director of an entity said to specialise in the recruitment of lawyers in both private practice and in-house.
• [243] The plaintiff primarily relied upon a table on page 3 of the first report of Ms Correa. The table set out the average earning positions within boutique firms, mid-tier firms and top-tier firms, broken up on a yearly basis from first year level through to fifth year level, senior associate level and partner level. Generally, in each year for each type of firm, a band from low to high appeared in the table.
• [244] The plaintiff generally used for his calculations the highest level for a mid-tier firm for years one to five as they appeared in the table in the report.

(c) The defendants' contention on the plaintiff's approach

• [245] The defendants submitted, in effect, that any assessment must take place via s 55 of the Civil Liability Act 2003 (Qld) ("CLA"), which provides as follows:

"55 When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person's age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in section 54(2) applies to an award of damages under this section."

• [246] It was submitted that the plaintiff's contention concerning the assessment of damages in this case for economic loss was problematic, given how the plaintiff had approached the claim. The plaintiff's approach was to use the highest figure for a mid-tier firm and assess on the basis that the plaintiff would have worked full-time in that occupation without interruption and with rapid promotion until his seventieth birthday.
• [247] It was submitted by the defendants that such a scenario was most unlikely.
• [248] The defendants submitted that the plaintiff's prior behaviour in general rendered the prospects of the plaintiff working in a hierarchal or corporate organisation, such as a mid-tier law firm, effectively non-existent. It was said that the much more likely proposition was that if the plaintiff managed to retain a practising certificate, he would have practised as a sole practitioner through the corporate entity, Cusack and Associates.
• [249] It was further submitted by the defendants that the plaintiff's prospects of earning anything from such a sole practitioner firm was negligible. In support of this submission, they pointed to the following:

(a) that whatever clients he had prior to working at Lillas & Loel, they had been transferred to Lillas & Loel when he was employed;

(b) when he left Lillas & Loel, the plaintiff had no clients; and

(c) the location from which the sole practitioner firm was being conducted was an industrial site, without any support staff, and was predominantly operating in the area of family law.

• [250] It was submitted that since the Aalert Training business had closed down by 2015 there had been no evidence of the plaintiff earning any money from personal exertions until he commenced as a solicitor in mid-2018.
• [251] It was submitted that the tax return for Cusack and Associates for the financial year ending 30 June 2020 showed a very modest income, with a profit of just over $5,000. I pause to note that there was, in fact, a loss of $5,073 for that financial year.
• [252] It was submitted that the plaintiff's approach to economic loss leaves the Court in the position that the profit (and, in reality, a loss) reported as at 30 June 2020 is really the only evidence of what the plaintiff's likely earnings were from any business to be carried out in terms of the legal profession.
• [253] It was further submitted that the tax return for the plaintiff in the year ending 30 June 2020 showed he had income from other sources of $37,525, and in the year ending 30 June 2021, he had income from other sources of $47,903.
• [254] In those circumstances, it was submitted that the most the Court could do would be to allow $100 per week from the date of injury, there being approximately 200 weeks since the accident. That gave a figure of past economic loss of about $20,000.
• [255] At the date of trial, the plaintiff was 49 years of age, and it was submitted that the same $100 per week figure could be used for 17 years, with a multiplier of 602 weeks. This gave a further figure of some $60,000. The defendants did not suggest there should be any further discounting from this figure.
• [256] The defendants disagreed with the plaintiff's submission that there should be no discounting of future economic loss due to the plaintiff's pre-existing psychiatric history if some higher amount was calculated. The defendants contended that the pre-existing psychiatric history showed that very significant discounting would ordinarily be needed if there was to be a substantial sum in excess of $60,000.
• [257] The defendants submitted that the prospects of the plaintiff remaining a solicitor for any length of time were remote in the extreme and that the prospects of the plaintiff earning anything remotely like that which was claimed ought to be seen as remote in the extreme. The defendant therefore submitted that $60,000 should be allowed for future economic loss, or in the alternative, on a global basis, that $100,000 would represent a very generous assessment.

(d) Initial observations on the parties' contentions

• [259] The starting point for an examination of both past and future economic loss is to recognise that prior to the first and second accidents, the plaintiff suffered from significant psychiatric conditions, and had ASD which he had been born with.
• [260] The existence of the pre-existing psychiatric conditions and ASD, with the features of rigidity of beliefs and fixed thought processes which the plaintiff exhibited, combined with the age of the plaintiff when he sought to enter the legal profession, constituted significant hurdles to his successfully creating a meaningful legal practice. That can be stated at a general level.
• [261] However, pre-accident evidence provides more specific guidance as to the severity of that risk. In due course, I will go through examples of where the plaintiff's rigidity of beliefs and fixed thought processes had resulted in interchanges with various persons and organisations which themselves provided indicators of difficulties the plaintiff would face in establishing a successful legal practice.
• [262] Further, there is a period of about a year after the first accident but before the second accident where the plaintiff's experience in seeking to function as a solicitor, both within a sole practitioner corporation and within a modestly sized firm, can be reflected upon for the purpose of fact finding. Neither of those experiences were successful. Those experiences also support the presence of difficulties for the plaintiff in being able to establish a successful legal practice.
• [263] In relation to the modestly sized firm in which the plaintiff did perform some work, he was employed for just over four months, but practised essentially for only three months before being suspended. As I will detail below, his unsuccessful interactions within that firm indicate that there was realistically no meaningful chance of him successfully operating within even such a moderately sized firm of solicitors.
• [264] I accept the submission of the defendants that the only realistic prospect was for the plaintiff to operate as a sole practitioner.
• [265] In the first financial year ending 30 June 2019, the company through which the plaintiff was operating as a sole practitioner only operated as such for some four to five months. That company's tax returns indicate that only $1,120 gross was produced in receivables for that period.

(a) the company's tax return for the year ending 30 June 2020 showed gross receipts of $39,948; and

(b) the company's tax return for the year ending 30 June 2021 showed gross receipts of $50,758.

• [270] It would seem, at least from these financials, that the plaintiff was able to generate a level of gross receipts which I have inferred were from the practice of law.
• [271] For the first of those years ending 30 June 2020, there had been management fees of $44,010. In the second of those years ending 30 June 2021, there had been management fees of $13,636,[34] and salaries and wages of $8,589.
• [272] None of the management fees or salaries and wages were evidently paid to the plaintiff as none of them were recorded as paid to him in his individual tax return for each of those financial years.
• [273] Whilst there was a $5,291 profit for the 2021 year, that profit was only as a result of a $14,000 distribution from a trust to the company. The trust distribution did not represent legal fees earned. The removal of that trust distribution would have produced a trading loss of $8,709 for the year ending 30 June 2021.
• [274] I accept that for the financial years ending 30 June 2020 and 30 June 2021, the plaintiff was functionally affected in his ability to practice law as a consequence of the second accident. That second accident had, amongst other things, brought on what had, to that point, been the delayed PTSD from the first accident.
• [275] The defendants also submitted that in the year ending 30 June 2020, the plaintiff was able to earn income from other sources of $37,525 and in the year ending 30 June 2021, he was recorded as earning income from other sources of nearly $48,000. I should note that the defendants did not analyse those tax returns to establish what part of those amounts were earned through personal exertions. The plaintiff attributed the amount of $17,848 for the year ending 30 June 2020 and $13,500 (in his closing submissions) for the year ending 30 June 2021 to personal exertions. These were not moneys paid by Cusack and Associates.
• [276] As previously noted, shortly after the second accident, a series of complaints began to be made by other practitioners about the plaintiff. This brought him into contact with the Legal Services Commissioner. The types of conduct about which the complaints were made seem to reflect the type of rigidity of belief and fixed thought processes that the plaintiff had prior to either of the accidents. I accept that the plaintiff was functionally affected in his ability to practice after the second accident, but the consequences of both accidents are unlikely to be the significant cause of the conduct which caused the complaints to the Legal Services Commissioner.

(e) Unsuitability of the plaintiff to work within a legal firm

• [278] In assessing past and future lost earnings from working within a legal practice, an assessment needs to be made as to whether, regardless of the first or second accident, the plaintiff was suitable for work within a legal firm environment which involved the employment of more than himself.
• [279] The conclusion that I have reached is that he was not suitable for work within that environment.
• [280] In that respect, the conference note of Dr Duke dated 22 May 2023 expressed the view that, regardless of the accidents, the plaintiff would have struggled to work as a lawyer, particularly in a working environment where cooperation and interaction with others may be required, or where he was required to adapt his behaviour to meet other people's standards and expectations.[35]
• [281] In support of that opinion, Dr Duke identified that the plaintiff's behaviour at Lillas & Loel was consistent with his pre-January 2017 psychiatric medical records. It was noted that those medical records recorded numerous instances of rigid concrete thinking and situations where the plaintiff lacked the ability to take other persons' perspectives into consideration. In further support of this view, Dr Duke also made reference to the plaintiff's answers to the questions used by Dr Zimmerman in order to diagnose the plaintiff with ASD.
• [282] In cross-examination, Dr Lockwood was taken to Dr Duke's note on this issue and the evidence that he referred to. Dr Lockwood expressed the view:[36]

"...I think it's fairly clear that [the plaintiff] has difficulties with communication in some settings and has problems with frustration management in some settings."

• [283] The following exchange then occurred:[37]

"Yeah. More than difficulties, isn't it; it's a complete inability to deal with someone who doesn't have his same views about things?---Complete inability to deal with those things in the settings that are described. He may have be - be able to deal with these things in other settings or in other communication styles. But yes, it certainly - it certainly does represent a problem, I would agree with that."

• [284] The following further exchange took place in relation to the questions and answers that had been used to diagnose the plaintiff's ASD:[38]

"Okay. And then in section A3, items 1, 2, 3 and 4, 16 and 17, 18 and 20. Then section B2 rituals and resistance to change, items 6, 9, 11, 14, 18, 17, 18 - sorry - 16, 17, 18 and 20, and I think that's it. Now, what Dr Duke draws attention to is that the plaintiff's self-report of those matters would, again, make it difficult for him to work particularly as a lawyer in circumstances where any form of cooperation, empathy, negotiation was required. Do you agree with that?---Yes. Yes, I would agree with that to some extent.

To some extent. Well, it would make it very difficult if he was like that, wouldn't it?---I think - I think he'd have to learn ways to deal with those difficulties that he's identified in himself - - -

Well, he was in his - - -?--- - - - and I think he'd also have to have a workplace that was structured to enable that to happen, which I think is often done.

He was in his 40s at the time. It seemed a bit unlikely that the leopard was going to change its spots, didn't it?---I think people can do well with social skills training - can improve with social skills training at any age, depending on their involvement and the engagement with it, to some extent."

• [285] In terms of the plaintiff's time at Lillas & Loel, the evidence supports that even though he was there for a short period from the beginning of November 2018 up until his suspension in February 2019, the plaintiff proved unable to work within that firm environment.
• [286] Documentary evidence and the oral evidence of a Ms Curry from Lillas & Loel support a finding that the plaintiff was unable to follow policy and procedures which were set down within Lillas & Loel.
• [287] Ms Curry had been the practice manager at Lillas & Loel at the relevant time. On

19 February 2019, a meeting was called between the plaintiff and Ms Curry about aspects of his employment at Lillas & Loel. A minute was created by Ms Curry of that 19 February 2019 meeting. The minute contained a litany of examples of the plaintiff not following practices or procedures, such as failing to use the IT recording system used by the firm called LEAP, failing to save emails to the LEAP system, using emojis in external correspondence, not progressing or following up matters that were delegated to him, changing work hours without permission, failing to verify if the plaintiff's laptop conformed to the LEAP standards required, intermittent or non-completed time recording, administrative work taking precedence over other works, failing to respond to telephone calls or emails, not informing superiors when key dates or client expectations were not met, not completing client agreements, time recording containing insufficient descriptions, delays in costs assessments, instructing clerks regarding policy and procedure without discussing it with his superiors, and a number of other matters.

• [288] The plaintiff reacted badly to this meeting. It did not seem that the plaintiff came back to work at the firm after the date of that meeting.
• [289] The plaintiff was subsequently suspended from the workplace and ultimately terminated, effective 5 March 2019, by way of a letter of 6 March 2019.
• [290] The note of Dr Kerr dated 20 March 2019 recorded the plaintiff telling Dr Kerr the following matters, amongst other things:

"After Kate [Ms Curry] "sprung" meeting on him [20 February 2019], regarding his performance, [patient] made arrangements for clients to be handed over to other lawyers. Bill [Cusack] started "screaming" at him. [Patient] walked out of room. [Patient] was suspended Friday afternoon - unpaid, so a week later he resigned, then received letter of termination - back at his practice (law) now..."

• [291] I prefer the opinion expressed by Dr Duke on this matter. It accords with the rigid belief and fixed thought processes which existed prior to the first accident and the actual experiences at Lillas & Loel.
• [292] I find the plaintiff had shown an inability to work within a hierarchal structure, even within a firm of a modest size such as Lillas & Loel. I find that the plaintiff's inability to work within this hierarchal structure was as a result of his psychiatric conditions and ASD which existed prior to the first accident.
• [293] What was also demonstrated by the plaintiff's experience at Lillas & Loel was his inability to adapt to the particular processes and procedures which a law firm ordinarily requires for it to be run properly.
• [294] The basis on which past economic loss and future economic loss was advanced in this case by the plaintiff was on the assumption that the plaintiff would be able to work within an established law firm, identified as a medium-sized law firm, where the plaintiff would be earning at the highest level of a first year practitioner with progressive increases in earnings in following years, again at the highest level, up to a fifth year practitioner.
• [295] That assumption is one which has not been made out on the facts by the plaintiff.
• [296] I accept the defendants' submissions that, to the extent the plaintiff was going to be able to practice law at all, it would need to be as a sole practitioner. This conclusion is also supported by the matters set out under the next sub-heading. They are examples of how the plaintiff's pre-existing psychiatric disorders and ASD caused difficulties in the plaintiff interacting with others in a variety of environments.

• [297] By 10 August 2015 at the latest, Aalert Training Pty Ltd had ceased its business as a high-risk working classes assessor.
• [298] On 10 August 2015, a document was signed by the plaintiff addressed to Workplace Health & Safety Queensland, which recorded that the regulator had alleged that the plaintiff had breached the conditions imposed on his accreditation in performing assessments for high-risk work classes in the period from 4 September 2012 to

6 August 2015. Without reaching any resolution on the alleged matters and without admission, the plaintiff by that document agreed to surrender his certificate of accreditation as an assessor for high-risk work classes, and to undertake that he would not make an application for further accreditation as a high risk work class assessor under the Work Health and Safety Regulation 2011 before 1 January 2018. That letter referred to a notice of proposed cancellation of assessor accreditation dated 7 July 2015 which set out the particulars of the allegations made against the plaintiff, who was operating as Aalert Training. That notice was in evidence.

• [299] I do not intend to go through each of the allegations. Broadly speaking, they included that contrary to the conditions which applied to the plaintiff as an assessor, he had supplied or otherwise provided on a number of occasions over a period of years, copies of various National Assessment Instruments for particular licensing courses, or part thereof, or model answers to others outside of the assessment itself.
• [300] The defendants in this case sought a finding that the plaintiff contravened his relevant assessment conditions.
• [301] I do not accept that it is appropriate for me to make any such findings. They effectively seek findings of the commission of unpleaded offences.
• [302] The allegations are collateral to the pleaded case. This proceeding was not some form of de facto prosecution of the plaintiff.
• [303] The evidence did support, at least for one class of heavy work assessment, that the plaintiff through Aalert Training had provided to trainees the model answers for questions which were on the assessment test. The plaintiff had required the individual trainees to memorise both the questions and answers.
• [304] However, the plaintiff (through Aalert Training) was not only an assessor, but was also a trainer. The plaintiff maintained that he was not constrained in supplying the model answers in his capacity as a trainer.
• [305] The plaintiff maintained that in his capacity as a trainer, this was not in breach of any act or regulation. Nobody from Workplace Health & Safety Queensland was called in the matter. I make no finding as to whether the plaintiff in the circumstances breached his assessor conditions.
• [306] However, certain relevant facts may be drawn from the conduct of the plaintiff during this first incident.
• [307] First, the plaintiff was prepared to give the written agreement without admission which I have referred to above. This, in effect, removed him from the business of assessing for at least a period of time. The plaintiff has not claimed any loss on the basis of an intended return to that business.
• [308] Secondly, there was video evidence presented to the Court of an interplay between the plaintiff and Workplace Health & Safety Queensland officers who had attended at the industrial site where the plaintiff was apparently carrying out the written assessment exams.

"That's stalking, that's [indistinct] stalking. That's obtaining advantage with menace and a crime on your behalf. I don't consent to being filmed, you're stalking and [one of the officers] is just there off camera failing to correct her colleague, committing a crime of stalking and attempting to obtain advantage with menace. You can see the conditions of entry there."

• [311] Then the plaintiff is heard to ask the officers the following questions:

"How many cranes a week roll over in South East Queensland?... How come the formula in your crane exam is wrong?...Have you even seen your new AS1 forms?"

"You guys can't even produce a form or formula or an exam, and you refuse industry support 80 times in a row."

• [313] To which the officer is heard to reply:

"What you're saying is not relevant to the situation. We have asked nicely to come in and come in under our powers, ok. When we first turned up we advised you we were coming in for the purposes of doing an assessor evaluation, okay? You advised us that there was two assessments being done today...We've come to see the evaluation and you haven't let us in."

• [314] The below exchange is then heard between the plaintiff and the officer:

PLAINTIFF: You've come and you've spoken about power, power, power, power, and you can't even write an exam, and you won't even take advice from industry---

OFFICER: Okay, and you have refused me on several occasions to allow us to come in.

PLAINTIFF: --- and now you're verballing [sic] me. I never refused you. I asked you to show that you are [indistinct] ---

OFFICER: Okay, can I come in here onto your property? Are you allowing me to come into your property?

OFFICER: I have showed you my ID - inspector ID under work health and safety. My ID number is 487. Daniel Murphy, are you going to allow me to come into your property under 163?

PLAINTIFF: I believe your policy and your act prevent your entry.

• [315] The plaintiff proceeded to lock the gates and walk away at a time when the officers attempted to speak to someone else who was leaving the property.
• [316] My overall impression of the video recording was of the plaintiff being entirely uncooperative in his engagement with the Workplace Health & Safety officers.
• [317] By itself, that video may not have taken the matter as far as the defendants sought, in terms of illustrating the type of rigidity of beliefs and fixed thought processes which the plaintiff had, but it is not the only example of how the plaintiff conducted himself to others in a pre-accident environment.
• [318] The second incident is the filing of an application for a minor consumer dispute within QCAT. The written application was dated 11 October 2013. It involved an insurance dispute with RACQ in relation to a stolen motor vehicle. The application sought the payment of $25,000 within two business days; but as part of the additional relief sought from QCAT, the plaintiff sought the following:

"1.2 Chairman of the Board of RACQ respondent to be speared in thigh.

1.3 Person(s) spearing Chairman of the Board of RACQ to have absolute immunity in carrying out the orders of the tribunal."

• [319] As part of the reasons for why the orders were being sought, the plaintiff stated in the QCAT document:

"2.2 It appears that the CEO is the snakehead of a criminal cartel, systemically and systematically engaged in white collar crimes. This is then 'laundered' as a series of "civil commercial disputes". The thigh spearing is the most appropriate deter ant [sic] to other potential offenders in the insurance community. Thigh spearing is a civil remedy, see appendix 2. Thigh spearing provides accountability in an otherwise impenetrable grey mist of incorporation, levels of management and corporate policy.

2.3 Persons carrying out the duties of the tribunal customarily have immunity, see appendix 3..."[39]

• [320] I accept the defendants' submission that the plaintiff's evidence on this issue was quite bizarre. When he was asked by counsel for the defendants whether he seriously thought that the relief sought would happen, the plaintiff's response was, "I thought it was a chance."[40]
• [321] The plaintiff was then asked this question:[41]

"You wanted - you asserted down the bottom - or, sorry, so you didn't see anything irrational about asking that the chairman of an insurance company - who, as far as you knew, had had nothing to do with your claim, be speared in the thigh?---He couldn't have nothing to do with it. He would have to have diligent management of the business as required by the Corporations Act."

• [322] The plaintiff was then taken to a reference he had made to the Hayne Royal Commission in justification for the substance of the relief he sought. The following exchange then occurred:[42]

"By the Hayne Royal Commission? Right. That there was a criminal cartel?---Well, there was a large amount of wrongdoing that was fairly well organised and there's a very small number of players in the insurance game.

And you thought that thigh-spearing - - -?---I - I apologise unreservedly if this dialect offends anyone.

Sorry?---I apologise unreservedly if this dialect offends anyone.

Well, it might have offended the chairman of RACQ, don't you think?---Well, he's got bigger problems [indistinct] royal commission."

• [323] As part of his answers to counsel on whether the plaintiff seriously thought that the thigh spearing was going to happen, the plaintiff responded, "Well, you're no doubt familiar with the case of Daniels in 1996 where the..."[43]
• [324] In closing submissions, counsel for the plaintiff said that was a reference to R v Daniel [1997] QCA 139; [1998] 1 Qd R 499.
• [325] The decision of R v Daniel[44] concerned the process of the sentencing of a First Nations person. The majority in that case noted that it may be appropriate to reflect particular considerations relevant to a particular community in sentencing. It may be, for example, that a First Nations community has a regime for dealing with classes of offences or offenders in which it is appropriate for the court to consider and reflect on in a sentence.
• [326] That case has nothing to do with civil litigation disputes, and could provide no basis to anybody acting rationally to have sought the thigh spearing relief referred to. In the initial written submissions on behalf of the plaintiff, there was an attempt by reference to R v Daniel[45] to explain why this had been put into the application. Reference was made to the concept of thigh spearing, including that this may include a mere tap of a leg with a blunted spear.
• [327] With respect, none of those submissions provided any acceptable explanation for the inclusion of the relief sought in the QCAT application.
• [328] The inclusion of the reference to thigh spearing was always entirely inappropriate and irrational. It could not be justified by some reference to cultural practices of First Nations persons within their own communities.
• [329] The inclusion of this relief in the application was consistent with the periodic recordings within Dr Kerr's records, that from time to time the plaintiff had homicidal or suicidal ideations. That is not to mean that the plaintiff ever had an intention of carrying out homicidal actions. I accept that he did not. Dr Lockwood explained persons may have such thoughts but never attempt to carry out such actions. As Dr Lockwood described it, the articulation of those thoughts can be reflective of a sense of helplessness of an individual feeling out of control.

"- [Patient reported] noticing violent thoughts (eg. if something annoys him thinks "I should just kill everyone"), but stated when he thinks this he then asks himself, "What would Dr Kerr say? She'd say, think through the consequences." then he said he tells himself to have a shower instead of continuing rumination. Stated the duration + severity of those thoughts has definitely decreased. Also clarified violent [indistinct] thoughts are general + not related to anyone specific...

- Informed [patient] I had received [phone call] from nurse regarding threats he had made recently, + gave some examples of what he had stated that causes concern in [people] (I see email in back). [Patient] could not understand making reference to mass shootings could be perceived as a threat, + stated he was just citing a fact that if people push someone too far they "could" snap. He stated he has no intention of acting on those things, he is just concerned that another person could snap, + take law into their hands..."[47]

• [333] The reference to the email is most likely an email chain ending 21 July 2016 from Dr Kerr internally to herself. It is apparent that Dr Kerr had been contacted by Queensland Police on 20 July 2016 in relation to the plaintiff. The email of that date from the police stated:

"QFTAC has received a referral today in respect of [the plaintiff]. This relates to implied threats he made in a submission to QCAT at a hearing on 11 July 2016."

• [334] The plaintiff had made a claim on behalf of his company Mineforce (Construction Labour) Pty Ltd in relation to a minor debt, which was subsequently dismissed. He had made comments to the effect of, "Give me the right outcome or I may take the law into my own hands."[48] The plaintiff also made reference to people being shot when public confidence in institutions such as QCAT is lost. He went on to state:[49]

"QCAT is the frontline in the dispensation of the King's justice to the people, or QCAT is the frontline in antagonising the public and by its function causing cruel and inhumane punishment."

• [335] The police had made contact with Logan Mental Health Service and noted the plaintiff's diagnosis of PTSD, borderline personality disorder and anger management issues. They also understood there had been recurring homicidal thoughts.
• [336] In addition to the email, there was a separate letter dated 2 August 2016 from Dr Kerr to Dr Boubaris.
• [337] The letter commenced by summarising the extracts from the records that are referred to above in relation to the threat that the plaintiff had made, and then observed as follows:[50]

"Daniel has reported ongoing stressors as a result of not understanding subtleties and inferences in communication with others. For example, he has had difficulties understanding the requirements of his law degree because instructions are not provided in a structured step-by-step manner and a level of interpretation is required. Similarly, Daniel recently came to the attention of the Queensland Fixated Threat Assessment Centre (a joint police and health initiative, who have now closed his case) who contacted me after Daniel made what could be perceived as threats (eg comments to the effect that if public confidence is lost in organisations, that's when people are shot). I assessed this threat with Daniel today, and he was somewhat baffled that this would be perceived as a threat. He stated it was not a threat and was just a statement of fact, that some people lose confidence and take the law into their own hands, but stated this was not a statement about him or his intention, just that some people might do this, as has been evidenced by recent shootings in the USA. He stated that he has no intention of plans to act on any violent thoughts."

• [338] Under the heading, "Treatment", Dr Kerr stated:

"Treatment has continued from a CBT perspective, with a focus on education regarding communication styles, subtleties in communication and how to interpret these, and perspective taking of the other person. Rigid, unhelpful belief systems continue to be identified, challenged and restructured. Daniel and I have discussed how sometimes his communication with others makes them anxious and that he needs to be mindful of how he addresses issues when he is frustrated so that he communicates the message he intends to, without making others feel threatened."

• [339] All of this evidence again reaffirms the effects the pre-existing psychiatric conditions and his ASD have on the plaintiff's interactions with others. The reference to inflexibility and rigidity in relation to behaviours and thought processes are examples of statements which regularly feature in Dr Kerr's notes over the years. These features existed prior to the two motor vehicle accidents.
• [340] A fourth incident is recorded in an EMT note which forms part of the medical records. On 4 August 2012, it was recorded in part as follows:[51]

"4.0 Guts upset when pressure applied by regulators - "authorities"

7.0 Anger expressed; screamed abuse at printer guy - he did not meet my reasonable expectations, and when asked to meet them he came across as "lord muck/high and mighty". He threatened to call the police so I screamed a bit more technical abuse and he fell in line."

• [341] This note referred to the plaintiff's interaction with a printer technician.
• [342] In addition to the specific matters, the medical records of the plaintiff from 2012 up until the first accident are replete with a number of repeated issues. It is not suggested that throughout that period each of these issues constantly manifested. But it is equally clear that there were regular instances where the following did manifest:
  • rigidity and inflexibility in thinking;
  • homicidal and suicidal ideation;
  • difficulties in communicating with others;
  • perception that persons did not meet his standards or expectations (eg the printer technician, the persons he interacted with during his short internship at Macquarie Bank, the persons he interacted with at Lillas & Loel); and
  • a suspicion of, and difficulty in interacting with, authorities.
• [343] The police are an obvious example where the notes record at various places the plaintiff's suspicions of them in terms of interactions with him historically. Workplace Health & Safety Queensland is another example.

(g) Difficulties in treating pre-existing and post-existing psychiatric conditions

• [344] The medical records illustrate that Dr Kerr has a good rapport with the plaintiff, and over the course of a number of years, has sought to engage and treat a number of his psychiatric conditions. As part of that process, and as previously identified, in 2018 Dr Kerr sought from an appropriate expert an opinion as to whether the plaintiff had ASD. This was sought so as to better understand how to structure her treatment for the plaintiff. That diagnosis was obtained in June 2018.
• [345] Dr Kerr identified various forms of treatment which had been engaged in to treat the plaintiff's psychiatric conditions.
• [346] This included on 28 February 2020 psychoeducation being provided to the plaintiff about the gold-standard therapies for PTSD.[52] This education concerned the treatment known as 'prolonged exposure therapy', also known as PE therapy, eye movement desensitisation and reprocessing therapy, also known as EMDR, and cognitive processing therapy, also known as CPT.
• [347] In her 15 November 2022 report, Dr Kerr noted that the plaintiff previously had treatment options presented to him.
• [348] The plaintiff chose to engage first in PE therapy. On 27 November 2020, the plaintiff reported a breakthrough in PE therapy, which related to the Childhood Trauma. Dr Kerr then identified that at that time, the plaintiff indicated that there was no further significant reduction in subjective units of distress (also known as SUDS) with the PE therapy.
• [349] On 18 December 2020, the plaintiff then moved to the EMDR treatment. That treatment continued until 27 October 2021, where the plaintiff's SUDS had reduced from 9/10 to 2/10 (a rating of 0/10 indicating no distress for a person when recalling the memory). However, Dr Kerr recorded the validity of cognition (also known as VOC) rating had barely improved from 1/7 to 2/7. Dr Kerr explained the rating of 7/7 indicated that the person had processed the memory and had internalised the new helpful cognition. For a memory to be considered processed, a score of 0/10 for SUDS and 7/7 for VOC is required. Dr Kerr observed that the plaintiff's memory continued to be unprocessed.
• [350] Dr Kerr proffered the opinion that the barriers to the plaintiff successfully processing were continuing. They included:

(a) chronic pain and significant disability associated with this;

(b) ongoing stress associated with the legal process and rumination regarding this and the injustice of being significantly impacted by an event that was not of his causing;

(c) significant cognitive symptoms, including impaired memory, reduced concentration and attention;

(d) concrete thinking and difficulties in cognitive flexibility required in order to think differently about the trauma events (Dr Kerr linked this to ASD); and

(e) suicidality at times, and a need to focus on safety.

• [351] Her ultimate clinical opinion was that the plaintiff has received all evidence-based, relevant and appropriate goal-standard psychological intervention for PTSD.
• [352] Dr Duke had expressed the opinion in a conference note of 25 May 2023 that the plaintiff would struggle to work as a lawyer, particularly in any working environment where cooperation and interactions with others may be required, or where he was required to adapt his behaviour to meet other people's standards and expectations.
• [353] Dr Lockwood had an exchange with counsel for the plaintiff in evidence-in-chief as follows:[53]

"Now, do you agree with Dr Duke says about those two things being examples of evidence that the plaintiff struggled to work as a lawyer - - -?---You're referring to the difficulties with his communication style and difficulties with rigid and unhelpful belief systems?

Yes?---Yes. I think that those problems could be problematic in most areas of work under certain circumstances, including the law. But I - I - inclined to think that there are areas in most professions where these problems would not [be] so difficult or they would not be so impactful.

And what is your view about the fact that Mr Murphy was in long-term treatment with Dr Kerr and regularly, throughout the notes, sought her assistance with these sorts of issues?---I think that that shows that he was aware that he had problems in these areas and wished to reflect and improve upon them. And that it indicates a strong engagement with the therapy and utilisation of it."

• [354] Later, the following exchange with Dr Lockwood and counsel occurred:[54]

"Doctor, the issues that Dr Duke has identified as perhaps being problematic for a person specifically engaging in law, but I think, as you say, can be more broad than that, is a person who has rigid thinking and - I believe he said also - his examples that he gave in the second - his most recent report were the - I suppose it was threatening behaviour and communication issues - not entirely clear. But perhaps we will stick with the black and white, having fixated views and communication issues. I was asking you about whether a person who attended therapy - what you thought of that - you've answered that. But what I'm interested in is Mr Murphy had been attending therapy for quite some time with Dr Kerr, and I want to know whether your view is that those issues that he exhibited before the accident - before the 10th of January 2017 - would likely have prevented him from pursuing his law career, which he had studied up to that point, or whether it was more likely that, with the assistance of Dr Kerr and the insight that he was gaining, that he would have been able to go on to work in an area where he was engaging in practice of law in some way?---I am inclined to think that Dr Kerr would have advised him not to study law, based on her long-term knowledge of him, if she felt that these particular traits or characteristics were going to be problematic. From my own judgment or, I guess, opinion, I think that these characteristics do not prevent law being considered as a - as a reasonable career choice. And that is based on the fact that all professions have their - their structures and their rules that assist in formalising communication such that personal difficulties can be, to some extent, compensated and controlled."

• [355] The evidence, in my view, particularly garnered from the medical records before both the first accident and the second accident, supports that there was a continuity in the plaintiff having difficulties due to rigid thinking and fixed belief systems. The medical records, particularly of Dr Kerr, do show that she had focussed on exploring ways in which the plaintiff might be able to be assisted in his interactions with others. An example which can be given is of Dr Kerr seeking to assist the plaintiff with how he should interact with other persons in a workplace, such as Lillas & Loel, in terms of giving compliments, holding discussions and so forth. The records also support that the plaintiff, at times, showed insight into the problems he was experiencing in different interactions with people.
• [356] All of that may be accepted, but what also must be accepted is that the plaintiff's ASD and other pre-existing psychiatric conditions posed real problems for the prospects of the plaintiff successfully practising as a lawyer. These problems existed distinctly from any functional reduction caused by the first and second accidents.
• [357] Dr Lockwood's speculation that Dr Kerr would have spoken up and dissuaded the plaintiff from doing law if she felt that the particular traits and characteristics were going to be problematic should not be accepted. It is speculation, which is probative of nothing.
• [358] The evidence does not suggest that Dr Kerr was asked to proffer any opinion about the plaintiff commencing his legal or accountancy studies. The speculation also ignores the objective facts which exist in relation to what occurred when the plaintiff sought to work in a relatively modest sized law firm (being Lillas & Loel) over a period of some four months. I take Dr Lockwood's comments as more of a throwaway line given in cross-examination, as opposed to a considered opinion. Dr Kerr did not give direct evidence in support of the speculation.

(h) Period between the first accident and the second accident

• [359] The period between the first accident and the second accident spans from part of January 2017 to the later part of August 2019. The plaintiff was not admitted as a legal practitioner until mid-2018, and shortly thereafter commenced work in a sole practitioner legal practice, before briefly moving to Lillas & Loel for a few months.
• [360] During the period, the plaintiff worked as a lawyer prior to the second accident. I find that the first accident had not functionally affected the plaintiff in his practice as a lawyer.
• [361] The difficulties which the plaintiff encountered during this period in his practice as a lawyer arose from his pre-existing psychiatric conditions and his ASD. I make these findings based on the following factors.
• [362] First, whilst I accept that the first accident had some initial relatively minor effects on the plaintiff in terms of his immediate psychiatric wellness, those effects were not evident at the time he was admitted as a legal practitioner. In saying this, I should not be taken to express the view that the first accident did not have an effect on the plaintiff. I accept the opinion espoused by both psychiatrists and Dr Kerr that the first accident obviously had a cumulative effect on what was already a complex overall psychiatric state for the plaintiff. However, in the period before the second accident, and whilst the plaintiff was admitted as a legal practitioner and practising, I am not satisfied that the psychiatric consequences of the first accident had any material effect on the plaintiff's ability to function as a legal practitioner.
• [363] Secondly, the view which I formed is consistent with the opinion espoused by Dr Duke. Dr Duke, in his conference note of 22 May 2023, recorded that, apart from mentioning the accident which occurred on 10 January 2017 to Dr Kerr on 14 February 2017, the plaintiff did not apparently mention the first motor vehicle accident or any effect on him until after the second motor vehicle accident on 28 August 2019. Dr Duke noted that from a psychiatric point of view, the plaintiff had an apparently good and long-lasting rapport with Dr Kerr. He proffered the opinion that in those circumstances from a psychiatric point of view, it was difficult to understand why, if the events of the first accident on 10 January 2017 were having an effect on the plaintiff, the plaintiff did not mention this to Dr Kerr.

"He mentions to Dr Kerr that the second accident has caused him to have intrusive images, nightmares, brought up feelings of guilt. Not that he had them during the intervening period, but that he had them after the second accident. That makes it hard to explain, doesn't it, why he didn't mention - sorry - that makes - it's consistent, isn't it, with him - psychiatrically - with him not having difficulties arising from the first accident until after the second accident?---I - I - I don't think necessarily that's the case. I - I do think that is very possible that his nondisclosure was - was a result of avoiding talking about the accident, as is often the case with nondisclosure of trauma, and it is extremely common - well, it is not uncommon for people to have delayed symptoms of PTSD and, certainly, after the second accident, he described some symptoms of PTSD related to the first accident that he didn't describe happening at the time of the first accident. For example, I think, nightmares and intrusive visual images. And he did have an increase of anxiety about those things. It's not uncommon for one traumatic incident to - if it causes PTSD - to result in the development of symptoms of - related to previous trauma, and as example, after his second accident in the 2019, he also had increasing symptoms of PTSD relating to his [Childhood Trauma] which he described. I don't think that it necessarily - what you're stating necessarily follows - - -

No, but is - - -?--- - - - in terms of psychological processes.

Isn't it the probable answer, Doctor? It might not necessarily follow - - -?---Sorry?

- - - but isn't it the likely answer, what I'm suggesting?---No, I don't - I don't think it's necessarily the likely answer either. I think that there is a - a good psychological case for him having, as he described, a brief period of quite heightened problems after the first accident which he didn't disclose out of a sense of guilt and shame, settling down, which he also described, and then having a recurrence of symptoms after the second accident. I think, from a psychiatric perspective, that is not in - not unusual or controversial in terms of the symptom development and course - - -

Sorry, Doctor. Did you say a brief period or did I mishear you?---He had a - he described to me a period of considerable distress which was relatively brief and then he said he'd settled down mostly."

• [376] Whatever the plaintiff was experiencing in the immediate aftermath of the first accident, I am satisfied that, as Dr Lockwood recorded, after a relatively brief period these symptoms settled down.
• [377] I have observed at the beginning of these reasons that I accept that after the second accident the plaintiff was experiencing nightmares and feelings of guilt and shame in relation to the first accident. No doubt as described by Dr Kerr and Dr Lockwood, the second accident provided a further cumulative layer of trauma on the psyche of the plaintiff such that feelings of guilt and shame by the plaintiff manifested in the way that they did. However, I do not accept on the evidence that the plaintiff was experiencing the same guilt and shame, at least to the same extent, in the immediate aftermath of the first accident.
• [378] I am satisfied that within a relatively short period of time, the plaintiff had psychiatrically settled down after the first accident, and that this had occurred well before mid-2018, being the date when he was admitted as a legal practitioner.
• [379] Accepting the limitations of the K10 results, it can be seen that generally the plaintiff was self-assessing in the period from the second half of 2017 to the end of the recordings in 2018 in a similar fashion to his self-assessing recorded prior to the first accident. There were two occasions when higher K10 scores were recorded in 2017 and 2018, but the notes of Dr Kerr illustrate that on both of these occasions there were other stressors identified by the plaintiff as being present. One related to his feelings in relation to a veteran card issue which had emerged in 2018. Another stressor related to his feelings arising from NAIDOC[57] Week.
• [380] The plaintiff gave evidence of his mental state during this period.
• [381] At one stage, the plaintiff gave evidence of his mental state when he stopped working at Lillas & Loel. He said the situation had become untenable, and it was probably due to his diminished capacity. When asked to clarify, he said he was tired, angry and confused a lot at that time.
• [382] In evidence-in-chief, when asked about working after January 2017, the plaintiff said that he "battled on" and that he thought often about the deceased from the first accident. The plaintiff described it this way:

"Well, I guess it was approaching a - a minor obsession - or, well, perhaps it was more than a minor obsession. Anyway, a lot. There's - in so many ways. So let me - I will just take a breath here. So part one is I wanted to see what could be done for the family. For them, this was, perhaps, a particularly cruel tragedy because a similar thing had happened to [the deceased's] father or stepfather. Then, I often had urges to jump out of the way of things. I had an episode one night, just looking in the bathroom mirror. I was - thought there was a truck coming out of the mirror at me. Then just the constant doom, fear - constant feeling of pending doom, of - of the pending murder charge."

• [383] During this period between the first accident in January 2017 and the second accident in August 2019, the plaintiff said that he was "Numb and in shock and tired and angry and confused."[59] In relation to his mental state and whether it had changed he said, "It would be very hard to deny that my cognition went downhill."[60] The plaintiff then went on to say, "Well, the passage of time has revealed that while - while I thought I was battling on and keeping a straight face, I - well, you said until 2019. But I - I just kept digging holes for myself and became irritable and - and burning relationships."[61]
• [384] The plaintiff gave evidence that from 2017 to 2019 he was "...terrified of the pending murder charge and if I can use the word "zombified", I was - I was somewhat like a zombie."[62]
• [385] Whilst I accept that there was likely some effect in the immediate months after the first accident, I do not accept the plaintiff's evidence in relation to how he felt for the entire period from the first accident in January 2017 through to the second accident in August 2019. I do so for the following reasons.
• [386] First, it is inconsistent with the K10 scores which were a form of self-assessment. It is also inconsistent with the general records of Dr Kerr. Apart from the examples given by Dr Kerr, which may or may not relate to the first accident's effect on the plaintiff, the records of Dr Kerr simply do not record the plaintiff being continually numb, in shock, tired, angry and confused for the period from January 2017 through to August 2019. The plaintiff clearly had a number of stressors during that period which affected his mood at different points in time. But what the plaintiff describes in evidence does not represent what he was articulating to Dr Kerr during the relevant time period. The examples given by Dr Kerr may, in fact, not relate to the effect of the first accident in terms of layered trauma. For example, the reference to having only disclosed one per cent of his trauma was not obviously a reference to trauma from the first accident.
• [387] As I stated at the beginning of these reasons, the Court must necessarily take into account the psychiatric injuries which the plaintiff has incurred when assessing his evidence. I have accepted that the first accident cumulatively added to the trauma that he had experienced through his life. I have accepted that as a result of the further trauma suffered by the second accident, feelings of guilt and shame arising from the first accident were at that time being experienced by the plaintiff. As Dr Lockwood described, a person can have delayed PTSD. It is likely that with the additional trauma from the second accident, these feelings of shame and guilt manifested after the second accident in an acute way.

(i) Period of professional work after the second accident

• [389] Dr Kerr addressed this in two short reports.
• [390] The first report was dated 7 August 2020. It identified that the plaintiff's psychological functioning had significantly deteriorated with poor cognitive capacity in terms of memory, concentration, attention, difficulty sleeping, a significant decline in self-care and activities of daily living (for example, limited showering, shaving, brushing teeth), putting on weight, being in physical pain so much that he would lie on the ground during appointments, increased suicidal thoughts, anxiety, headaches, muscle tension, crowded thoughts and increased PTSD symptomology. Dr Kerr noted that the plaintiff had reported obsessional thoughts and behaviours such as increasingly asking the police and ambulance services for transcripts of his call to emergency services in respect of the first accident. Dr Kerr recorded the plaintiff having thoughts that there may be a conspiracy and the police may frame an innocent man for the death which had occurred in the first accident. She recorded his thoughts that the victim who had died had been alive at the scene, despite the plaintiff having asked for and being granted the coroner's report into the death which did not support such thoughts. She recorded that the plaintiff's pre-existing mistrust of the police was based on his experience with them on previous occasions as they related to his First Nations heritage and because of his feelings he had been unfairly targeted in traffic stops. Dr Kerr noted that the plaintiff had an increase in frustration and anger, and thoughts of harm to others.
• [391] Dr Kerr's recollections of her interactions with the plaintiff were consistent with her periodic records made after the second accident and up to the date of the report. They were consistent with evidence which the plaintiff gave for this period. The plaintiff gave evidence of his fears of the police charging him in relation to the death at the first accident.
• [392] Dr Lockwood, in her initial 28 August 2020 report, had proffered the opinion that the plaintiff had very limited capacity to work as a result of a combination of his psychiatric diagnoses and the marked impact of his chronic pain. Dr Lockwood stated that the plaintiff's cognitive difficulties, his problems with mood and the intrusive nature of many of his symptoms had made it impossible for him to do the work of a lawyer effectively. Dr Lockwood recorded that the plaintiff had recognised this and was seeking to close his practice and was currently working on one case and was receiving close supervision from two colleagues. This reference to two colleagues would explain the separate management fees and wages that appeared in the financial statements of the company carrying on the practice. This suggests that Mr Cusack may have come back onto the scene as the wage of just over $8,000 was identified as payable to him.

"I thus feel that his capacity to work in his chosen profession, in which he has previously worked with enthusiasm, enjoyment and effectiveness, is now extremely limited, and based on his current capacity to work for only one hour a day effectively negligible."

• [395] I note that Dr Lockwood's recording of the plaintiff obviously telling her of his previously working with 'enthusiasm, enjoyment and effectiveness' in his chosen profession is directly at odds with the plaintiff's evidence at the trial of his purported impaired condition between the first accident and the second accident.
• [396] In terms of future work, Dr Lockwood proffered the opinion that while it was possible, she could not confidently predict to what extent the plaintiff would be able to return to some gainful employment at a later date. This was said to be due to the uncertainty about his recovery from his physical symptoms, in addition to his current severe psychiatric symptoms.
• [397] Dr Lockwood noted it was possible that due to a combination of both factors, or possibly due to the physical factors alone, the plaintiff may not be able to return to full time hours and efficiency which he previously had before his more recent accident, and she stated that it seemed very unlikely he would be able to safely return to work over 80 hours per week, as was his previous habit. Overall, she thought it likely the two motor vehicle accidents would limit his future work.
• [398] In her subsequent 20 June 2022 report, Dr Lockwood noted that there had been some improvement in the plaintiff's psychiatric symptoms. In terms of the PTSD, there had been a significant reduction in the frequency and intensity of a number of his re-experiencing of symptoms, particularly flashbacks and nightmares. Dr Lockwood also noted that the plaintiff had some mild reduction in his hyperarousal symptoms and his symptoms of avoidance. She recorded that his panic attacks now occurred less frequently.
• [399] Dr Lockwood considered the improvements had developed in response to the targeted and appropriate psycho-pharmacological and psychological therapy he had received. However, she was of the view that he continued to have significant symptoms of PTSD, which continued to cause the plaintiff personal distress and created significant difficulties in his general functioning.
• [400] In relation to the plaintiff's ability to work, Dr Lockwood gave the opinion that she did not think he had a current capacity to work as a lawyer as a result of the intrusive impacts of his psychiatric symptoms, which impacted his ability to cognitively process material, to work at a steady pace, and to emotionally cope with the work. Dr Lockwood's view was that it was unlikely the plaintiff would be able to return to work in the foreseeable future. Dr Lockwood also noted that the plaintiff had continuing problems with interpersonal communications, which had significantly impacted on his interactions with professional organisations.

(j) Determination of the approach to past and future economic loss

• [418] The starting point is that an assessment of damage of economic loss involves two steps. The High Court in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at [1] observed:

"A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that "the diminution of... earning capacity is or may be productive of financial loss.""

• [419] The second thing that must be recognised is that s 55 of the CLA is operative.

(k) Resolution of past and future economic loss

• [420] My assessment in relation to economic loss is as follows.
• [421] First, I am of the view that s 55 of the CLA is relevant to the assessment of loss in this case. That is so because I do not consider that I am able to make an award of damages for loss of earnings which is precisely calculated by reference to a defined weekly loss. The evidence does not allow me to do so. Neither the plaintiff nor the defendant submitted that I was in a position to assess loss on that basis.
• [422] Secondly, I am satisfied that the plaintiff has suffered loss and will suffer loss in the future having regard to his age, work history, actual loss of earnings and his permanent impairments which I have previously referred to, which are both psychiatric and physical.
• [423] Thirdly, s 55(3) of the CLA requires my reasons to state the assumptions of which the order I am going to make is based and the methodology I have used to arrive at that award. I will do that in the following paragraphs.
• [424] Fourthly, both past and future loss was approached by the plaintiff on the basis of his carrying on the occupation of a solicitor. In the written submissions of the plaintiff, there was a statement that he would have made a similar loss from his failure to undertake work as an accountant. The evidence simply did not substantiate this, and no evidence was led in relation to the ability of the plaintiff to actually carry out accountancy, what the earning capacity of an accountant may have been, and what the likelihood of the plaintiff succeeding in accountancy would have been.
• [425] The plaintiff had obtained a degree in accountancy from Southern Queensland University, but he had at no stage practised as an accountant. I am not satisfied that the evidence led at trial established on the balance of probability that the plaintiff had any reasonable loss of earning capacity in the area of accountancy, or that he would ever have actually sought to practice accountancy.
• [426] Fifthly, I am not satisfied that there was any loss of earning capacity as a result of the first accident. The psychiatric effects which had manifested in the form of limited symptoms in 2017 as a result of the first accident on 10 January 2017 had settled before 2018. The plaintiff has not proved on the evidence that his practice as a legal practitioner after his admission in June 2018, and up to the second accident on 28 August 2019, was materially affected by the first accident. Accordingly, no past economic loss has been established in relation to that period up to the date of the second accident on 28 August 2019.

28 August 2019. This affected him both psychiatrically and physically in the ways that have already been the subject of findings in these reasons. The earnings of Cusack and Associates therefore need to be viewed in that context.

• [432] Ninthly, I am satisfied that the pre-existing psychiatric conditions of the plaintiff, and the ASD (that is, pre-existing the first and second accidents) would have detrimentally affected the ability of the plaintiff, in a substantial way, to be able to successfully carry out the practice of a legal practitioner as a sole practitioner. The inflexibility in beliefs and rigidity in thought processes which the plaintiff had manifested prior to the first accident would inevitably have continued to be present, regardless of the accidents. As Dr Kerr had explained, ASD is not treatable.
• [433] Whilst I acknowledge that the records of Dr Kerr show that there was a recognition at times by the plaintiff of his need to seek assistance and guidance from Dr Kerr as to how to interact with people both at a social and professional level, there was a history of episodes which demonstrated how that inflexibility and rigidity had continued to result in negative events over an extended period of time.
• [434] In this regard, I refer to the plaintiff's:

(a) interactions with Workplace Health & Safety Queensland;

(b) articulation of the thigh spearing relief which he had sought in QCAT;

(c) statements in QCAT which were interpreted as a threat in the Mineforce (Construction Labour) Pty Ltd QCAT proceeding, noting Dr Kerr's recorded contemporaneous observation that the plaintiff had been surprised that the statements he had made could have been interpreted as a threat;

(d) conduct with the printer technician; and

(e) inability to operate within the processes and procedures which existed at Lillas & Loel.

• [435] The type of law practice which the plaintiff was engaged in during 2019 to 2021 was one which would have required him to interact with clients, lay witnesses, expert witnesses, opposing practitioners and the courts in circumstances where his pre-existing psychiatric conditions and ASD would likely cause significant and material ongoing issues for the plaintiff in a way which would detrimentally affect the success of any such practice.
• [436] Tenthly, the plaintiff was 45 years of age at the time of the second accident and had only commenced practice as a legal practitioner at the age of 44. Inevitably, the commencing of a new profession at midlife in a sole practitioner position would be challenging in itself. Whilst the evidence supports that the plaintiff had been able to establish the business of Aalert Training which had run for a number of years, that business is of a different nature to the running of a sole practitioner legal practice, which inevitably involved the interpersonal interactions referred to above. The operation of Aalert Training is not an appropriate guide to the plaintiff engaging in the successful operation of a legal practice as a sole practitioner.
• [437] Eleventhly, the plaintiff was commencing his legal practice at a time when he was developing physical ailments unconnected to either the first or second accident. In this respect, I include the injury to the right shoulder described as a 'frozen shoulder', which I have found was unrelated to the second accident and the inflammatory injury to the hips which I have found was unrelated to the second accident. These ailments would not have prevented the plaintiff from practising as a legal practitioner, but would have made the practice somewhat more difficult, particularly given that the practice had no support staff. I have not used these ailments to discount the earnings in any year, but I have used them as part of my consideration of when I should find the plaintiff would have practised to. I have ultimately reached the view that I should find that he would have practised to 65 years of age.
• [438] Twelfthly, I accept that the plaintiff's sole practitioner practice was carried out from the industrial site where Aalert Training had carried on its business, and was carried out without the apparent assistance of any secretarial or support staff. Both of these factors were not conducive to the success of the practice. The first factor would give an odd appearance to any prospective client and would remove the plaintiff from the immediate vicinity of other businesses. The second factor obviously made the practice work of a sole practitioner more difficult in terms of completing fee-paying work efficiently and effectively.

10,000 gross per annum x (44/52.14 weeks) = 8,438.82

Tax = Tax on taxable income 6,485.30[66] - tax paid 3,742.62 = 2,742.68

35,000 gross per annum x (46.57/52.14 weeks) = 31,261.03

Tax[67] = (35,000 - 18,200) x (16/100) = 2,688

Plus Interest at a rate of 2.20% over 5.73 years

• [455] For future economic loss for the period between the day after the judgment date and 30 June 2025, I would maintain the gross figure of $35,000. For the year ending 30 June 2026, I would increase the gross figure to $37,500. For each year after that, I would maintain the gross figure of $37,500. It represents the modest earning as a sole practitioner. It allows for the possibility that such a practice may have failed altogether. It allows for all of the matters I have identified above which are detrimental to the prospects of maintaining a successful sole practitioner practice. At the same time, it gives weight to the determination of the plaintiff I have identified, the fact that a practice was established and that the practice did generate general receipts which I have inferred to be for legal services. I have cut the future earning age off at 65 for the plaintiff, as that seems to me to be an appropriate age for retirement from the practice in light of the plaintiff's pre-existing psychiatric disorders and ASD, and the physical conditions which had manifested separately from the two accidents. In my view, it is unrealistic to find that the plaintiff would have worked until he was 70 years of age.
• [456] On that basis, the calculation for future economic loss will be as follows:

35,000 gross loss per annum x (5.57/52.14 weeks) = 3,738.97

Tax[68] = (35,000 - 18,200) x (16/100) = 2,688

619.72 per week x 5.57 weeks = 3,451.82[69]

Tax for 1 year = (37,500-18,200) x (16/100) = 3,088

Discounted @ 5% for 14 years (multiplier 529[70]):

• [457] The amounts above were calculated on the basis that tax was removed before the five per cent discount was applied. The taxation rates used were that of the 2024-2025 financial year.
• [458] In making the findings set out above, I expressly find that it would be wrong to assess the past and future earning capacity of the plaintiff by reference to the table in Ms Correa's first report in the way submitted by the plaintiff.
• [459] I allowed a further six per cent discount for contingencies and vicissitudes. This level of further discount rather than a higher level such as 15 per cent is justified because of:

(a) my consideration of specific matters in my assessment of the future economic loss, including the matters justifying my finding that the plaintiff would likely only work to the age of 65 as a sole practitioner; and

(b) the period of time involved is 14 years.

• [460] On the figure of $81,137.39 for past economic loss over the five years from 28 August 2019 to 22 May 2025, I allow interest at the rate of 2.20 per cent per annum, pursuant to s 60 of the CLA.[71] I take into account that it was an agreed matter and not in dispute that the 10 year bond rate was taken as 3.32 per cent at the time of the trial. However, I accept the plaintiff's submission that the interest rate should be updated to the current 10 year bond rate as at the judgment date.[72] Pursuant to s 60 of the CLA, I determined that the appropriate interest rate is half of the 10 year bond rate, as submitted by counsel for the defendants. The total interest on the past economic loss is $10,228.18 (see Table 1 above).

• [461] I have not allowed an amount for past superannuation. The plaintiff did not deal with how the sole practitioner earnings would be dealt with. There was no accounting evidence on this. I have assumed that all available funds would be paid as wages. This is not a case where the plaintiff would be in a third party's firm and would receive an additional superannuation contribution on top of his wage.

• [462] I have not allowed an amount for future superannuation loss for the same reasons as stated for the past superannuation loss claim.

Future loss of earnings attributable to impairment of entrepreneurial skills

• [463] There was a separate head of loss claim described as impairment of future earnings, attributable to the entrepreneurial skills of the plaintiff. This was claimed at $5,014.20 per week, being the claimed average weekly earnings for the purpose of the definition of Schedule 2 to the CLA. It was said that as at May 2021, the most recent published figures for a Queensland full-time adult person's ordinary time earnings declared by the Australian statistician was $1,671.40 per week, times three, resulting in the figure of $5,014.20. This resulted in a per annum figure of $260,738.40, which the plaintiff then discounted at five per cent per annum over 22 years (a multiplier of 703.8) to age 70, equalling $3,528,994, minus the $1,585,364 said to be the lost earnings from his legal practice.
• [464] I allow no amount for this purported impairment of future earnings. It was entirely speculative and not grounded in any probative evidence.
• [465] The evidence, at its highest, involved the plaintiff being involved in the setting up of the New Zealand credit union. As I have previously found, that was not a credit union as would be understood within Australian terms, but was in the form of something akin to a lightly regulated management investment scheme operating from New Zealand.
• [466] The plaintiff's evidence was that over a number of years he had researched international opportunities to set up such a credit union. The plaintiff said he had looked deeply into regulations. The evidence of Mr Linden Jones had corroborated that the plaintiff had spoken to him over a series of years about researching some such enterprise. No evidence of the actual research was ever put into evidence during the trial.
• [467] What was evident was that there were three other persons involved in the enterprise. One had been an officer in the Air Force who had, in fact, been involved in setting up a credit union for members of the Air Force. Another person had pre-existing expertise and experience in the area of financing. Finally, there was the uncle of the plaintiff, who was said to be an experienced commercial person within New Zealand. Exactly what the plaintiff did in relation to the enterprise remained entirely opaque. It is not apparent that the plaintiff was ever paid a fee or remuneration whilst the enterprise was on foot. It is also not apparent that he did any actual day-to-day work in the enterprise. At most, it was identified that his interest in the enterprise was bought out to the extent of 95 per cent for an amount of $500,000.

• [480] Past gratuitous assistance is sought at 6.75 hours per week, said to commence from 1 January 2022. From that date up until 22 May 2025 is a period of 176.86 weeks.
• [481] Section 59 of the CLA must be considered when such a claim is advanced. That section provides as follows:

"59 Damages for gratuitous services provided to an injured person

(1) Damages for gratuitous services provided to an injured person are not to be awarded unless -

(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and

(c) the services are provided, or are to be provided -

(2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.

(3) In assessing damages for gratuitous services, a court must take into account -

(a) any offsetting benefit the service provider obtains through providing the services; and

(b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution."

• [482] This head of damage is said to be justified by the evidence given by Ms Hill, who is the partner of the plaintiff.
• [483] Ms Hill gave evidence that she had provided the following assistance to the plaintiff for the following weekly average times:

(a) meal preparation/cooking - 3.5 hours;

(b) cleaning up kitchen, washing dishes - 1.5 - 1.75 hours;

(c) massage, cutting toenails, fingernails etc - 1.25 - 3.6 hours;[73] and

(d) clothes washing - 0.5 hours.

• [484] I accept the evidence of Ms Hill that she provided the services she identified per week for the average time she identified. She indicated that she had been asked to estimate these times and that she had used her mobile phone to assist her in recording the average times. She had done this for the periods before and after the plaintiff's mother had passed away. That was an accurate way for her to calculate the average times.
• [485] However, I am not satisfied that the plaintiff was receiving six hours of services per week. The six hours per week is the minimum amount required to be incurred before recovery of loss can occur: see s 59(1)(c)(i) of the CLA. Of the 1.25 - 3.6 hours for massage, cutting toenails and fingernails, Ms Hill ascribed 10 minutes to the cutting of toenails and fingernails. This left either just over one hour or just over three hours (depending on the relevant period) in relation to massage.
• [486] I accept the defendants' submission that the plaintiff did not establish that the massaging was a necessary service. The medical evidence did not suggest that such massaging was a necessary treatment. I distinguish this from physiotherapy, which seeks to address the underlying issues arising from the soft tissue injuries. No doubt there was some temporary reduction in pain by the massage, but this does not make it a necessary service. There is no suggestion that it achieved some lasting physical remediation of an injury.
• [487] The massage, at the time of the trial, was estimated at approximately one hour or three hours, depending on the period involved. The report of Mr Sven Roehrs, an occupational therapist called by the plaintiff did not allow any paid or gratuitous service for an item such as this.
• [488] Next, I am not satisfied that the plaintiff was incapable of washing his own clothes. In the report of Dr Lockwood of 28 August 2020, the plaintiff identified that he was hanging out his washing using a low rack.[74]
• [489] Ms Hill gave evidence that the plaintiff was capable of folding washing and putting the clothes in the washing machine. She accepted that she was doing the clothes washing because she liked to help.[75] The clothes washing was estimated at 0.5 hours per week. I do not accept that this was something the plaintiff could not functionally do. I do not allow this as a recoverable gratuitous service.

"And Mr Murphy would be quite capable of carrying out his own meal preparation, wouldn't he?---It all depend. It - I mean, if you such in pain, you don't want to cook for yourself. Because I had my late husband of 20 years, and he had four back operations, so I understand what the pain like."

• [492] I accept at times the plaintiff will have episodes of pain, however my assessment of his loss of earnings claim assumes that he will not otherwise be gainfully employed. He will have the benefit of being able to undertake relevant tasks at home over time during each day, with appropriate rests.
• [493] Again, in the report of Dr Lockwood of 28 August 2020, the plaintiff had informed Dr Lockwood that he cooked one day a week, cooking a large number of meals and lived off roast and vegetables for around three days at a time.[77] This demonstrates an ability to prepare meals.
• [494] In making these findings, I accept that the plaintiff continues to suffer a level of residual pain from the second accident. At times in the witness box, the plaintiff had to stand up from his sitting position in a response to pain he was experiencing.
• [495] As Ms Hill identified, there will no doubt be times when the plaintiff would be in too much pain to carry out certain activities, however, there would be other times throughout the day when he would not be suffering from such levels of pain to preclude him from carrying out tasks such as meal preparation. The plaintiff's history of being able to do such tasks in the past supports that he will be able to do them in the future. Ms Hill's evidence also supported this conclusion.
• [496] Mr Roehrs, in his 22 November 2021 report, had allowed seven hours a week pre-second accident for the preparation of meals. He assessed 3.5 hours a week for future assistance for cooking meals. He records the relevant "Assessed Capacity and Limitations" as follows:

"Finds it difficult to bend and to get low items from cupboards.

Generally pays for carer to undertake preparation or shares mother's meal made by her carer."

• [497] In cross-examination between defence counsel and Mr Roehrs, the following exchange occurred:[78]

"For instance, cooking meals. In your view, was the right shoulder making a contribution to the need for assistance in that respect?---It would make a contribution.

So that to at least some extent, the need for assistance arose out of the right arm problems?---In part, yes.

Yes. What you note there, Mr Roehrs, is that he found it difficult to bend and get low items from cupboards, and that's the - - -?---Yes.

That's the only difficulty which I noted. Is that the only difficulty which was reported?---No. He reported that standing for prolonged periods caused him back pain; also doing - undertaking bilateral activities or any heavy lifting.

By "bilateral", do you mean arms?---Both arms, yes.

Yes. See, one solution to difficulty bending is to store at least commonly used items at an appropriate height, isn't it?---Yes, that would be of assistance.

Yes. And one problem with standing for too long is to have a kitchen perching stool, isn't it?---It's not particularly helpful because it means that you have to keep your hips in the one position and you're more likely to have to use back movement."

• [498] The evidence of Mr Roehrs does not alter my view. The observational assessment and functional capacity assessment at sections 10.1 and 10.2 of Mr Roehrs' report allows for the functional preparation of meals. It allows for standing for periods of 10 minutes of time. With commonly needed items stored at appropriate heights and with his functional capacity, the plaintiff should be able to prepare meals. This is particularly so where standing periods for food preparation can be spaced out over the day.
• [499] As I observed above, the actual evidence that the plaintiff has prepared food for himself during past periods supports that the gratuitous service of Ms Hill or a similar paid service is not a necessary service arising from the injuries suffered.
• [500] Accordingly, I find that the plaintiff would be able to carry out tasks such as meal preparation, cooking, and clothes washing as needed, given that he would have the majority of the day to undertake those tasks, and has a prior history of being able to undertake those tasks.
• [501] Whilst I do accept that Ms Hill was doing the tasks for the weekly times she recorded, I find that they were being done by reason of the preparedness of Ms Hill to help her partner, rather than them being done because it was necessary for her to do them as a result of the injuries to the plaintiff.
• [502] In relation to the fourth category of cleaning up the kitchen and washing dishes, I have come to a similar conclusion.
• [503] Whilst I accept that there would be periods where the plaintiff may suffer pain at particular points during the day where cleaning up the kitchen or washing dishes may be uncomfortable, there would likely be other times during the day when those tasks could be adequately undertaken by the plaintiff. These tasks were estimated at 1.5 to 1.75 hours per week. I am not satisfied that these tasks could not be undertaken by the plaintiff. I am not satisfied that the carrying out of these tasks by Ms Hill were necessary services required by reason of the injuries incurred.
• [504] Accordingly, by reference to the criteria of s 59 of the CLA, I am not satisfied that the plaintiff has established that necessary services have been provided for at least six hours per week.
• [505] Accordingly, I allow $0 for this head of loss.

• [506] Section 60(1)(b) of the CLA makes clear that no payment of interest can be made on an award for gratuitous services. Even if some gratuitous services had resulted in an award, no award of interest could be made.

• [507] I would award future paid commercial assistance. I refer to Mr Roehrs' assessments in his report of future needs as being 7.3 hours per week. That is calculated on his assessment of activity prior to the second accident and need after the second accident. This was in a table form as follows:

Approx. Hours of Assistance Estimated to Now be Required and into the Future

If he requires only a small number of items, he is able to go to Aldi.

Finds it difficult to bending and get low items from cupboards.

Generally pays for carer to undertake preparation or shares mother's meal made by carer.

Able to prepare cold snacks and drinks or access fridge

Previously did in how own home, now reliant on his mother's gardener.

Previously did gutters, windows, blinds, cobwebs, leaking taps, etc.

Unable to pull fitted sheet over and to wash sheets. This is done by his cleaner.

Rarely irons compared to previously. Cleaner assists if required.

Bending and repetitious reaching aggravate symptoms. Therefore, he does not participate.

Bending whilst twisting and reaching irritate symptoms. Therefore, does not participate.

Unable to bend to vacuum car or to wash the exterior.

• [508] Taking into account the medical evidence and the specific injuries that I have found to be caused by the second accident, I assess that three hours per week assistance would be required. I do not accept that meal preparation for the 3.5 hours is a necessary service for reasons already dealt with. I do not accept that ironing for 0.3 hours is a necessary service. The plaintiff does iron and, again, the task can be spread out over the week. I would not make an allowance for "spring cleaning" of 0.4 of an hour. Mopping of 0.5 of an hour, bathroom cleaning of 0.4 of an hour and vacuuming of 0.5 of an hour sufficiently account for what I would regard to be reasonable and necessary cleaning services. The additional inclusion of the "spring cleaning" component is excessive. I would reduce car maintenance to 0.1 of an hour as the 0.2 of an hour allowance is excessive.
• [509] This then leaves three hours of assistance. Doing the best I can on the evidence before me, I am satisfied that the plaintiff has a reasonable and necessary need for this assistance arising out of the specific injuries which I have found the second accident caused. The plaintiff may have been spending significant time at Ms Hill's house, but the plaintiff also continued to maintain his household as well. Ms Hill is not obliged to carry out the tasks which I have identified as constituting these hours. They are different in my view to her list. The plaintiff should be compensated for this future assistance which he will require. He has in the special damages section been allowed amounts which he paid out for at least some of these past services. I will allow 3 hours per week. I will adopt the $50 per hour figure used by the plaintiff in his submissions. It is a reasonable figure to use. The calculation is as follows:

Discounted @ 5% per annum for 32 years[79] (multiplier 845[80]):

• [510] A higher discount of 15 per cent for contingencies and vicissitudes has been applied, particularly because of the length of period involved.

• [511] There was an agreed special damages schedule which identified that the costs set out therein were incurred by the plaintiff. That agreement still left in issue the question of whether the costs were awardable as recoverable damages of the plaintiff.
• [512] It is relevant to note that the plaintiff bears the onus of establishing that the special damages are recoverable damages. The test is one of reasonableness, not what might be ideal.[82]
• [513] The relevant question of reasonableness considers at least two factors. The first requires the claimed damages to be shown:

(a) to be caused by the particular events for which the defendants are liable; and

(b) to be disconnected from other pre-existing conditions.

• [514] The second is that the damages are required to be shown to be reasonably necessary as a result of the injury.
• [515] The defendants created a spreadsheet which set out, from their perspective:

(a) the amounts accepted as owing, together with interest;

(b) the amounts accepted as owing, but for which interest is not payable;

(c) the amounts in dispute, but if allowed, interest should also be awarded; and

(d) the amounts in dispute, but if allowed, interest should not be awarded.

(a) First category - amounts accepted as owing, together with interest

• [516] In respect of the first category, there is an acceptance of the claim and the interest, by the defendant. This amounts to $12,442.41 claimed.
• [517] I will allow the amount claimed, however interest will be calculated at 2.20 per cent per annum, from the earliest date a loss was incurred by the plaintiff (being 6 January 2020) to the judgment date. The interest allowed will be $1,472.91. The calculation of the interest rate by reducing, by half, the 10 year bond rate, is a sufficient reduction so as to make the interest awarded appropriate to the period over which the loss was incurred, pursuant to s 60(2)(b) of the CLA, taking into account that the losses incurred in this first category were incurred on discrete dates over a number of years.
• [518] For the period between closing submissions and judgment, I would allow a further sum of $5,000 to represent that further expenditure will have occurred, including on a periodic basis. The total sum will be $18,915.32.

(b) Second Category - amounts accepted as owing, but for which interest is not payable

• [519] The second category is amounts which are accepted but for which interest is not payable because they are bulk billed or otherwise paid by Medicare. No argument was made to the contrary by the plaintiff that interest should not be paid on these amounts, and accordingly, I would award the amount $4,058.80 as accepted by the defendant, with no interest.
• [520] For the period between closing submissions and judgment, I would allow a further sum of $1,500 to represent that further expenditure will have occurred, including on a periodic basis. The total sum will be $5,558.80.

(c) Third Category - amounts which are in dispute, but if allowed, interest should also be awarded

• [521] The third category is claimed in the amount of $20,401.80, together with interest. This amount is disputed by the defendant in full, but if allowed in whole or part, interest is not disputed. I will break this up into the categories shown in the spreadsheet.
• [522] The plaintiff claims amounts for attendances at various times with Dr Kerr between 28 August 2019 through to 21 May 2023. The plaintiff had been seeing Dr Kerr since 2012.
• [523] The plaintiff had seen Dr Kerr:

(a) Ten times in 2013;

(b) Ten times in 2014;

(c) Nine times in 2015;

(d) Ten times in 2016;

(e) Ten times in 2017; and

(f) Eleven times in 2018.

• [524] The plaintiff saw Dr Kerr 10 times in 2019, which included a number of the occasions claimed in the special damages schedule. I find that it was likely that the plaintiff would have continued to need to consult with Dr Kerr into the foreseeable future, irrespective of the two accidents. Whilst steps were being taken to address the plaintiff's Childhood Trauma, the evidence does not support that he was suddenly going to cease seeing Dr Kerr in August 2019. Indeed, given the interaction between his existing psychiatric conditions and his ASD, with the functions he intended to carry out as a legal practitioner, it is almost inevitable that he would have continued to see Dr Kerr on a regular basis in order to deal with the likely difficulties that he would have experienced in his workplace as a result of his inflexible and rigid belief system.
• [525] Merely because there was an exacerbation of the plaintiff's condition does not mean that he would not have been receiving these services on an ongoing basis. I allow nothing for these claimed amounts.
• [526] Two amounts claimed by the plaintiff relating to Dr Boubaris for 20 April 2020 and 27 April 2020 are objected to. They are recorded as relating to the "hip, right shoulder". Given my findings that these injuries were not related to the accidents, these amounts should be disallowed in full.
• [527] Similarly, under the category Dr P Zheng - QDI Browns Plains, there are four entries for 15 April 2020, 24 April 2020, 28 April 2020 and 1 May 2020 where the services were for either the left or right hip or right shoulder. Given my findings that these injuries were not as a result of the accidents, nothing should be allowed for these entries.
• [528] In the same vein, there was an entry objected to for Dr A C Chong - Queensland X-Ray on 23 April 2020, which is said to be for "right hip/shoulder". Given my prior findings that those injuries were not related to the accidents, no amount should be allowed for this entry.
• [529] The next claim objected to relates to Andrew Gorman, chiropractor. The defendant submitted that there was no evidence that it was objectively reasonable for the plaintiff to attend a chiropractor at all, or, alternatively, with the frequency he did. Reliance was placed on the decision of McMeekin J in Bezant v Davis & Anor In that case, his Honour, when dealing with chiropractor charges claimed in relation to a negligently inflicted injury, commented on this issue by observing that the plaintiff bears the onus of proof. His Honour noted that the relevant question of reasonableness included a consideration of at least two other factors, in addition to the plaintiff's claim that the treatment provided him with some relief. The first factor was a recognition that the relief was temporary, and its effect was spent after a week or so, with the overall cost claim therefore becoming very significant. The second factor was that his Honour noted that there was no medical evidence to support the claimed need for treatment.

"...[W]here there is no evidence that a treatment is based on an accepted body of scientific knowledge then in my view it is very difficult for the plaintiff to demonstrate that a substantial expense is necessary or reasonable." (footnotes omitted)

• [531] In the present case, Dr Shaw and Dr Johnstone were called in relation to the physical injuries which the plaintiff had incurred. Neither of those doctors gave evidence as to whether there was a reasonable need for chiropractic services. The mere fact that the plaintiff attended for that treatment cannot be determinative of whether the ongoing expense was reasonably necessary for the treatment of the injury.
• [532] The plaintiff simply did not discharge his onus of proof that the chiropractic treatment was a reasonably necessary expense as a result of the recoverable injuries.
• [533] I disallow them in whole.
• [534] The next claim was for Woodridge Parklands Plaza Chempro Chemist on four occasions for cannabin oil, and the attendance at the Healing Leaves Clinic in Brisbane on one occasion for the prescription.
• [535] Again, the plaintiff did not provide evidence that such expenditure was reasonably necessary as a result of the injuries, and I would not allow any amount for those occasions.
• [536] The next matter is paid domestic assistance in the period 28 July 2020 through to

22 May 2023 with payments being made to Max Murphy, Home Instead, Jonathan Hill, Tarlia Hall and Maxine.

• [537] Ultimately, the invoices associated with these payments were not put into evidence. That these people or entities were paid is not in dispute on the dates identified and in the amounts identified. Except for some additional descriptions appearing on the relevant schedule in relation to Jonathan Hill for three occasions, the schedule itself provides no indication of the work undertaken.
• [538] The defendants say that there is a dearth of evidence to support the reasonableness of the claim. The defendants submitted that the plaintiff's evidence about what was actually done and why it was done for him, was sparse in the extreme.
• [539] The plaintiff did give evidence-in-chief about Max Murphy, who was his nephew. This evidence, in effect, was that Max Murphy did things that the plaintiff could not do for himself such as lawn mowing, some tidying up of vegetation around what was left at the office so that it was risk-free of fire. That office was situated on the same industrial site at which the plaintiff resided at in his mother's former house.
• [540] The plaintiff's evidence was that entries for Home Instead were said to be for cleaning upstairs and things like washing and ironing clothes.
• [541] The plaintiff's evidence was that the reference to Jonathan Hill for lawn mowing and tyre rotating was a reference to things which the plaintiff had paid him to do.
• [542] The plaintiff's evidence was that the reference to Maxine was a lady whom the plaintiff engaged directly to provide inside type assistance in the nature of vacuuming, cleaning the toilet, cleaning the bathroom, ironing and washing.
• [543] Finally, the plaintiff's evidence was that in March 2023, there was an amount of $180 for Jonathan Hill which the plaintiff thought may have been Jonathan Hill jacking up some portable buildings and shipping containers by putting some bricks under them. He identified that that needed to be done to provide ventilation to the floor so it would not rot. This was, again, in respect of buildings or containers at the industrial site where the plaintiff resided in his mother's former home.
• [544] I do accept that his pain made it likely that the plaintiff needed some assistance for services, particularly for outdoor areas such as gardening and mowing, and some forms of cleaning in the house. I have assessed this at an ongoing basis to be 3 hours per week. The figures claimed are within what I have assessed as being necessary for future paid assistance calculated at 3 hours per week. Whilst the evidence on these claims is not entirely satisfactory, I think it is sufficient to establish that work done was reasonably necessary as a result of the recoverable injuries. I would award $14,299.25.

• [548] For the period between submissions and judgment, I would allow a further sum of $6,000 to represent that further expenditure will have occurred, including on a periodic basis. The total sum will be $21,987.13.

(d) Fourth Category - amounts in dispute, but if allowed, interest should not be awarded

• [549] In relation to the fourth category, the amount claimed by the plaintiff is $7,100.48. Again, there are a variety of sub-categories which I will deal with individually.
• [550] The first sub-category disputed is the costs of attendances with Dr Kerr, which were bulkbilled. For the reasons I set out under the previous heading, in my view, these attendances with Dr Kerr would likely have been incurred regardless of the injury, and accordingly I will allow nothing under this head sub-category.
• [551] The second sub-category relates to entries for the purchase of a Holden Rodeo Ute and then various expenses in relation to it becoming operative.
• [552] The plaintiff gave evidence that he sold his prior car, which was a small Mitsubishi, and bought the Holden Rodeo Ute because it had better suspension. The plaintiff said in evidence that apart from the original purchase price of $2,500, the other amounts were either to make the car run, or for the purposes of making it run safely.
• [553] The plaintiff sold the Mitsubishi car, but nowhere in the schedule is there a corresponding credit for the price obtained on the sale of that motor vehicle. There has been no attempt to set off that price against the purchase price of $2,500 and costs to make the vehicle run, or run safely.
• [554] The plaintiff always had to have a vehicle. He simply switched from one vehicle to another vehicle. The plaintiff may have made an astute purchase by buying it at the low price of $2,500 and making it safely runnable by expending these further moneys. All of this is speculation, because no attempt was made to justify in any specific monetary terms what the different position was from the value of the prior Mitsubishi to the cost of acquisition of this vehicle, including costs and repairs to make it run safely.
• [555] The mere fact that there was some expenditure does not mean that there was a recoverability of that expenditure as reasonably necessary losses incurred by the plaintiff as a result of the two accidents.
• [556] I do not allow any amount for this second sub-category.

• [557] The plaintiff made a claim of $199,800 for what are called 'additional vehicle expenses'. It was said to be the difference in costs between a Land Cruiser and the Suzuki Swift which the plaintiff had owned at the time of the second accident. The calculation of it is set out in Annexure "C" of the written submissions of the plaintiff. It is calculated by way of the opposing capital costs and running costs of the two vehicles, broken down into weekly sums, with the claimed delta between those opposing costs said to be the recorded costs over 20 years, then discounted by 40 per cent. The capital costs and running costs were sought to be established by evidence before the Court by way of the RACQ Private Vehicle expenses 2022 document, which was put into evidence. The problem with that evidence is that the RACQ document assumed a level of usage of a vehicle which was highly unlikely in the present case. Ultimately, I do not have to resolve this evidential difficulty.
• [558] The only evidence which really pertained to the prospect of the acquisition of a Land Cruiser by the plaintiff was a part of the report of Mr Roehrs dated 22 November 2021, where at page 22 it recorded the plaintiff identifying that he had purchased the Holden Rodeo Ute recorded in the special damages section and that "...he continues to experience a jarring from the low quality of suspension." It was on that basis for physical and psychological reasons that Mr Roehrs said it was reasonable for the plaintiff to upgrade to a higher vehicle and longer wheelbase with good suspension and a sprung or air suspension seat. Mr Roehrs said that it was not within his expertise to provide cost discrepancies between this vehicle at the time of injury and one that meets that recommendation.
• [559] The plaintiff did not himself give evidence that he continued to experience a jarring from low quality suspension found on the Holden Rodeo Ute which he had bought. The plaintiff's evidence was the only good thing about the Holden Rodeo Ute was the suspension. The plaintiff, in his evidence, identified that he had some expertise with vehicles and that he had specifically bought the Holden Rodeo Ute because of the wheel base and the suspension.
• [560] Whilst he identified elsewhere in his evidence that he still had pain when driving, the plaintiff did not identify that was because the Ute that he had purchased, in fact, had poor suspension.

• [563] The plaintiff made a claim of $38,345 for additional travelling expenses, being the difference between business class airfares and economy class airfares, calculated in accordance with Annexure "C" to the plaintiff's submissions.
• [564] The plaintiff gave no evidence of his intention to travel anywhere. Even if there had been an intention to travel, I am not satisfied that this would be an objectively reasonably necessary head of loss for the plaintiff. The plaintiff has not discharged his onus in establishing that this alleged loss is reasonably necessary as a result of his injuries.
• [565] In the circumstances, I allow nothing for this head of loss.

• [566] This head of claim for future residential modifications has three sub-categories, each referrable to a different point in time. They can be summarised as follows:

(a) a present claimed amount of $20,700;

(b) a second claimed amount of $11,530, being a portion of the present value of $20,700 to be spent in 12 years' time;

(c) a third claimed amount of $6,417, being a portion of the the present value of $20,700 to be spent in 24 years' time.

• [567] The calculations for each of these three sub-claims are found in Annexure "C" to the plaintiff's final submissions.
• [568] I accept the submissions of the defendants, that there was no evidence to demonstrate exactly what the claimed modifications were, or the basis for their calculation. At best, there was evidence of:

(a) a claim for a spa sought to be acquired on three separate occasions over the lifespan of the plaintiff at a cost of $1,799 per individual purchase; and

(b) a high quality recliner chair at an approximate cost of $2,000 per individual purchase,[83] again to be acquired on three separate occasions over the life of the plaintiff.

• [569] The plaintiff had been residing at his mother's former residence, and at the time of the trial, had commenced staying for the majority of the week at Ms Hill's residence. There was no evidence about required modification of Ms Hill's or Mr Murphy's actual residences.
• [570] In relation to the spa and recliner chair, no medical evidence was led that supported that these items were reasonably necessary. At most, the spa would prove some temporary pain relief. In relation to the recliner chair, the highest the evidence rose was that Mr Roehrs said in his report that it was recommended to assist full body support and to participate in meditation. The temporary relief of pain and Mr Roehrs' recommendation does not establish, in my view, that these two expenditures are reasonably necessary ones as a consequence of the recoverable injuries.
• [571] The plaintiff has not led other detailed evidence which would support findings of a required and reasonably necessary expenditure for alterations in the sum claimed. I will allow, however, a modest sum of $5,000 to assist with modifications to be made that may assist with day-to-day tasks such as preparing meals or doing the washing or hanging out clothes.

• [572] This head of loss is for GP consultations was said to be made necessary by the plaintiff's injuries. It uses as its basis the plaintiff's statistical life expectancy of 35 years.
• [573] The plaintiff's calculation is set out in Annexure "C" to his final submissions. It is for four consultations each year at $75 per consultation, discounted at 5 per cent per annum over 36 years, leading to a claim of $5,000.
• [574] The defendants submit that this amount should be discounted at a higher rate of 15 per cent for contingencies due to the length of period, resulting in a starting figure of $4,300.
• [575] The defendants further submit that the necessity for some attendances will be unrelated to the injuries from the accidents (eg the hips and the right shoulder) and asserts that $2,000 will be an appropriate allowance.
• [576] Given the significant period of time involved, I think that the better discount should be 15 per cent for contingencies, resulting in the $4,300 figure. This sum should be further reduced.
• [577] Doing the best that I can and recognising that there will be reasons other than the injuries associated with the accidents causing the plaintiff to see his GP, I think that two-thirds of that figure ought to be awarded covering a period of 32 years, resulting in the figure of $2,867.

• [578] The plaintiff claims 13 sessions per annum at a rate of $90 per session for the 36 year period. The plaintiff discounts the amount at five per cent per annum over the 36 year period, thereby claiming $20,000.
• [579] The defendants say that the five per cent discount results, in fact, in an amount of $19,908, and that a 15 per cent discount would result in a figure of $17,000.
• [580] For the reasons set out above, I find the starting figure should be $17,000, using the 15 per cent discount due to the lengthy period involved. Further, I am of the view that there will be sessions of physiotherapy which will likely be unrelated to the accident. There was a pre-existing neck complaint which periodically received physiotherapy. That position was unlikely to have altered, regardless of the accidents. Further, the injuries to the right shoulder and the hips, on my findings, were not caused by the accident. In my view, again, two-thirds of the $17,000 figure ought to be allowed covering a period of 32 years. That figure is $11,333.
• [581] Whilst it is true that Dr Shaw and Dr Johnstone did not give evidence as to the need for further physiotherapy, in my view it is likely that the injuries from the second accident will periodically create the need for physiotherapy. I am satisfied that there is likely to be consequential muscular strain or associated pain deriving from the original injuries or as a result of compensatory movements by the plaintiff in seeking to deal with residual pain from the original injuries. Just as there was an obvious need at intermittent times prior to the second accident for the plaintiff to seek out the treatment of physiotherapists in relation to a chronic neck pain, there is likely, in my view, to be a need to seek out physiotherapy services during the 32 year period relevant to the recoverable injuries. The amount set out above will provide appropriate compensation for that likely future necessary and reasonable need arising from the injuries incurred in the second accident.

• [582] The next claim is for chiropractic services. The plaintiff claims 13 sessions per annum at $90 per session over the 36 year period, discounted at five per cent, resulting in a figure of $20,000.
• [583] The defendants say that the plaintiff did not suggest he derived any significant benefit from the chiropractic treatment.
• [584] I note that the plaintiff did say in evidence-in-chief that he was receiving chiropractic treatment in part to seek to reduce pain, but that was all that was said.
• [585] No medical evidence was led from Dr Shaw or Dr Johnstone as to the need or benefit of chiropractic services in the current circumstances.
• [586] Unlike the claim for physiotherapy, I am not satisfied that the receipt of chiropractic services ought to be separately awarded, particularly where the evidence is simply that they were incurred to seek to reduce pain. What reduction it had and for what length of period was not articulated. Consistent with my reasons for this component in the past special damages section, I am not satisfied that the plaintiff discharged his onus in demonstrating that these services were objectively reasonable and necessary.
• [587] I would allow nothing for this head of damage.

(g) Participation in multi-disciplinary pain management program

• [588] The plaintiff claims an amount of $21,072 for pain management progress, but did not in closing submissions identify what the source was for that sum of money. Dr Shaw, who was called by the plaintiff stated at page 9 of his 14 March 2021 report that the plaintiff "... requires pain management and supervised rehabilitation for his injuries, particularly the right shoulder injury. Comprehensive pain management and rehabilitation would cost in the order of $8,000."
• [589] The defendants focussed on Dr Shaw's opinion, emphasising that it was said to be particularly for the right shoulder. By the time of the trial, the right shoulder itself had settled and was not causing ongoing pain. I have found that the right shoulder was not caused by the second accident and that the pain to the hips was also not caused by the second accident.
• [590] Nonetheless, there is ongoing pain derived from the second accident. There is a reasonable basis founded on Dr Shaw's opinion for the plaintiff to receive some pain management and rehabilitation for his injuries. Whilst Dr Shaw emphasised the right shoulder, his opinion was not limited to that injury. The amount of $8,000 was not challenged in cross-examination, but given that the right shoulder played a significant role in the proposed management and rehabilitation, I would allow half of that amount, being $4,000.
• [591] A provision for such pain treatment and rehabilitation further bolsters my findings that the plaintiff does have, and will have in the future, an ability to carry out a portion of his own care, despite the existence of residual pain.
• [592] I would award $4,000.

• [593] The next claim is for psychological services. This is claimed in the amount of $7,800. The calculation for this claim is not set out in Annexure "C" or in the closing submissions of the plaintiff. For the same reasons that I have disallowed a similar claim under the special damages category, I would disallow this claim. If the plaintiff had not been injured, he would, in my view, have continued to see Dr Kerr for the foreseeable future. This is particularly so if he sought to carry on any type of legal practice where he still had the inflexible behaviour practices and rigidity of thought processes which Dr Kerr periodically sought to ameliorate in her sessions by providing guidance to the plaintiff as to how he should interact with others in a social and professional setting. Nonetheless, the defendant was prepared to allow a modest award of $2,000. On that basis, I am prepared to award that amount of $2,000 under this head of damage.

• [594] The plaintiff claims psychiatric treatment in an amount of $5,700. Annexure "C" to the plaintiff's final submissions does not provide for a form of calculation for this sum.
• [595] The defendants say that this falls into the same category of psychological therapy which has been dealt with above. Further, it was submitted by the defendants that the plaintiff's treating psychiatrist was not called to say what element of treatment was required because of any effect of the motor vehicle accidents. The defendants submitted that the plaintiff, in his own evidence, said that his main problem was now his homicidal and suicidal thoughts. It was contended that this was the main problem before both accidents.
• [596] I do not accept the submission that no award should be made under this head of damage. As Dr Lockwood identified, the effect of a series of traumas through a person's life can have a cumulative effect, which is what she opined had happened here. I have accepted this has occurred in this instance. I have found that the cumulative effect of traumatic experiences ultimately caused the decompensation of the plaintiff after the second accident.
• [597] The plaintiff has received both psychological and psychiatric treatment after that second accident. As was noted in Dr Lockwood's second report, there has been some improvement to the plaintiff's mental wellbeing as a result of treatment. However, I think it likely that some allowance must be made for additional psychiatric treatment in circumstances where this cumulative effect has occurred, where the plaintiff presents with a complex psychiatric array of disorders, coupled with ASD, and where the ASD has made effective treatment more difficult.
• [598] I would allow a lump sum of $4,000 under this head of loss, doing the best that I can in the circumstances, and taking into account the facts I have referred to.

• [599] This claim deals with future use of psychotropic medication. The plaintiff claims an amount of $13,626 based on a calculation set out in Annexure "C" to the plaintiff's final submissions. That is calculated by a figure of $15.40 per week over 36 years, discounted at five per cent.
• [600] The defendants say the evidence does not support that this level of medication would be needed for the full life expectancy of the plaintiff. The defendant says there was simply no evidence about the length of its use. Reference was made to Dr Lockwood, who had pointed out that the plaintiff's medication would need to be monitored and adjusted in the future. However, Dr Lockwood did not give any evidence about the amount or cost. The defendant says a modest allowance of $5,000 would be generous to cover psychiatric treatment and medication.
• [601] Doing the best that I can in the circumstances, I would allow an amount of $7,000 for psychotropic medication for a period of 32 years. In a similar way to the position I set out for psychiatric treatment, the cumulative effect of the first and second accidents on the pre-existing psychiatric disorders of the plaintiff and the presence of the ASD creates a complex psychiatric situation for the plaintiff. Dr Lockwood had noted that there had been improvement between her first and second report, and in cross-examination, accepted that there was potential for further improvement. Tempered against this was the evidence of Dr Kerr, who had been delivering the gold standard treatment for the trauma experienced, but had met the difficulties she had identified.
• [602] I do not think that the evidence established that the psychotropic medication will likely be needed to the end of the 32 year period, and certainly not in the quantities which it has been used to date. However, a figure of $7,000 for 32 years represents an appropriate assessment which takes into account that such drugs may well be used at reduced levels and eventually ceased in the future. I am not satisfied that the plaintiff has established a case which would justify a greater award under this head of damage.
• [603] I will allow $7,000 for this head of loss.

• [604] The plaintiff claims analgesic medication in the amount of $5,309, calculated in accordance with Annexure "C" to the plaintiff's final submissions. It is calculated at $6 per week over 36 years, discounted at five per cent per annum.
• [605] The defendants say that a reference to Exhibit 1A, which looked at the amounts spent on analgesics in the six months up to the start of the trial, shows that the only indication of analgesic tablets were Melobic tablets at $14.99 and Celexi capsules at $15.99. It was said that the cost would therefore be about 60 cents per week which, for the plaintiff's life expectancy, would be about $530. The defendant submitted that an allowance of $1,000 for analgesic medication would be appropriate.
• [606] I will allow $4,800 as a lump sum for analgesic medication. I do so for the following reasons.
• [607] The requirement of analgesics both before and after trial are consistent with the existence of pain and the likelihood that a level of pain would remain. Analgesics are objectively reasonable and necessary to deal with such pain. Their use places the plaintiff in a better position to carry out portions of his own care as I have found above.
• [608] Accordingly, I would award the amount of $4,800 for analgesics medication covering a period of 32 years.

• [609] There had at one stage been a claim for fees for the management of the plaintiff's financial affairs. The plaintiff's final revised submissions did not seem to advance such a claim. In any event, I would not allow it. Ms Fritter performed paid accounting services for the plaintiff prior to the two motor vehicle accidents. His financial affairs after the accident have had some complexity arising from various factors including various share returns and the use of trusts and corporations. The plaintiff did not satisfy me that there should be some recoverable amount because Ms Fritter has to do work she otherwise would not have done, but for the accidents. Even if this head of damage was maintained, I would have allowed $0 for it.

• [610] In summary, the award of damages are as follows:

Future loss of earnings attributable to impairment of entrepreneurial skills

(1st category - amounts accepted as owing, together with interest and additional allowance)

(2nd category - amounts accepted as owing, but for which interest is not payable and additional allowance)

(3rd category - amounts in dispute, but if allowed, interest should also be awarded and additional allowance)

(4th category - amounts in dispute, but if allowed, interest should not be awarded)

• [611] I enter judgment for the plaintiff against the third defendant for $635,146.81 for damages. This amount is inclusive of interest.

[1] Per Beach, Macaulay JJA and Forrest AJA.

[2] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at [44].

[3] Examples of the descriptions of the plaintiff's Childhood Trauma can be seen at Dr Lockwood's report of 28 August 2020 at p. 25 of the trial bundle para [1], and p. 57 of the trial bundle, at Dr Duke's report of 17 November 2020 at p. 98 of the trial bundle at para [4] and Dr Kerr's report of 7 August 2020 at p. 1 of the trial bundle at para [3], items numbered 1 - 2.

[4] International Classification of Diseases 11th Revision - World Health Organisation.

[5] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (OSM-5-TR), American Psychiatric Association.

[6] Dr Kerr's notes used the term 'Asperger's Syndrome'. Ultimately, the terminology used by the specialist which the plaintiff was sent to, when describing the relevant condition, was 'Autism Spectrum Disorder'. It is this descriptor which I will generally use in these reasons for the relevant condition.

[7] PTSD is the acronym for post-traumatic stress disorder.

[8] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (OSM-5-TR), American Psychiatric Association.

[9] Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.

[12] I use the term 'defendants' for convenience, but only the third defendant actively participated in the trial.

[13] Revised outline of the third defendant's submissions p. 15 at [68].

[16] Revised outline of the third defendant's submissions at [12].

[17] Caffrey v AAI Limited [2019] QSC 7.

[21] Dr Johnstone's conference note of 16 May 2023 at [4].

[27] Report of Dr Johnstone dated 11 March 2021 at p. 6.