Padash v Dungan

Padash v Dungan - [2020] NSWDC 399 - NSWDC 2020 case summary — Zoe

The plaintiff's evidence

The plaintiff is 55 years of age. Prior to the subject accident he had had two significant events concerning his physical capacity: in 2008 he suffered a tear in the meniscal region of his right knee; which required an operation in 2008; and earlier, in 2002, he had been involved in a motor vehicle accident in which he suffered chest pain. Under cross-examination, it was put to him that he had suffered other injuries not referred to in his evidence in chief, including to his left knee (2010) and right elbow (2011-2012). He accepted that he is diabetic and required medical certification to enable him to work as a taxi driver on account of that diagnosis. Prior to the subject accident he described his health as being "okay".
Under cross-examination, it was suggested to the plaintiff that at the point where his vehicle was struck, his own (stationary) car was behind two other cars. He accepted that the force of the impact from being struck by the defendant was to move the car forward but not so far as to collide with the cars in front of him. It was suggested that there was little damage to the vehicle itself but the plaintiff said that there was damage to the rear bumper bar and the taillights were damaged. His daughter, who had arrived at the scene after travelling there in a taxi, drove the plaintiff's car home. Later it was repaired. The car was eventually sold.
Following the accident, the plaintiff said he felt pain in his left side. He attended Concord Hospital the next day (1 December 2016) and had an initial consultation with a general practitioner, Dr Iboyan, one week later (7 December 2016). Dr Iboyan reported on seeing the plaintiff a long time after that occasion (on 7 July 2020) and confirmed the plaintiff suffering a lower back injury in the region of the L3/4 and L4/6 levels. On 1 December 2016, the plaintiff underwent an x-ray and CT scan of the lumbosacral spine.
The plaintiff accepted that after the accident, he had had a problem with his left ankle, having twisted it.
From 2017, he has received multiple injections in the lumbosacral spine, the last of which occurred in October 2019.
He says his sleep has not been good. He might wake up as many as 4 or 5 times a night.
In February 2020, he suffered the misfortune of having slipped and fallen at home and he injured his ribs. He was conveyed to the Royal North Shore Hospital (RNSH) and remained in hospital for virtually 3 weeks. It was suggested to him, but he disputed, that he had injured his back as part of the fall. He had no surgical treatment for this and he estimated that he felt 30% better in the rib. His rib still causes him some pain and contributes to his difficulties with sleeping.
He said he last attended the RNSH in February 2020. He next has a scheduled visit with Dr Singer later this month.

[3]

Ms Fetneh Padash's evidence

Fetneh Padash is the plaintiff's wife. She gave evidence in corroboration of the plaintiff's complaints of injury, his disabilities or restrictions in his movement, his work capacity and his need for domestic assistance.
When she first learned of the subject accident she heard him complain about his back pain. Even as recently as the two days prior to the hearing, she said she helped him to shower and helped him take off his trousers.
Since the accident, she said that she accompanied him to his various medical appointments. She is involved in administering his medication. Sometimes they go outside shopping together but it is she that mainly attends to this.
She indicated that since the accident, she noticed that they had argued a lot; that he had raised his voice. She admitted having had thoughts of separating from the plaintiff.
She said that following his fall in February 2020, his rib injury had improved. It is the pain in his back that the plaintiff continues to (mainly) complain about. Under cross-examination, she accepted that the rib injury greatly concerned her. This was much more severe than the rib injury that the plaintiff had sustained in 2002. It was suggested to her that many of the domestic and other restrictions arising in the plaintiff had occurred since February 2020. She concurred in this, although she was not asked to reconsider her evidence that the restrictions had arisen in the earlier time interval following the subject accident. She accepted that he continues to complain about pain in his rib, though she added that he also complained about his back. Similarly, she accepted that over the years, the plaintiff had complained about injuries to his left ankle and neck.
Mrs Padash said that she and the plaintiff continue to share the same bed, and she confirmed the contrast between the quality of the plaintiff's sleep before the accident and the interrupted nature of his sleep after the accident.
She said she was aware of the surveillance footage of the plaintiff, the content of which I will shortly turn to. As to the part of that footage which showed the plaintiff standing on a relatively small step-ladder to change the light bulb, she said that she had put the ladder into position. She was not there when he changed it. She clarified in cross-examination that she was home at the time, but did not observe him replacing the light bulb. She also indicated, in relation to the surveillance footage, that she had seen at least some of the surveillance, concerning the plaintiff's trip to Bunnings, at the plaintiff's lawyers' office.

[4]

The defendant's surveillance films

The defendant relied upon two films, taken at different times. The first was on 27 March 2018. The second was on 5 September 2019.
In the former, the plaintiff was seen driving his motor vehicle, initially to a 7-Eleven shop to fetch what was apparently a hot drink. He was able to get in and out of his car without difficulty. Indeed, he was able to open the boot of the car and was able to look down (probably at his phone) and twist his body. He was able to sip his coffee in one hand whilst using the other hand to push down the boot of the car.
Thereafter he drove to a Bunnings store. He later said in his evidence that he was there for the purpose of acquiring a part - a tyretube - for the wheelbarrow at his home. He explained that his son had informed him that the wheelbarrow was not usable. On his way into the store, he passed a customer on the way out and he twisted to his left side to observe that customer. The film depicted him in one instance reaching with his left arm to get to a shelf above him. In another instance he was seen raising both hands above his head in the store, by over a metre. He was seen holding his mobile phone in one hand whilst holding product in another. He purchased product, left the store and carried it to his car. Again, there was no difficulty in his standing or walking through the store. When he got to the car, he was able to bend.
Counsel for the plaintiff later submitted that, whilst inside the Bunnings store, he was seen to place his hand on his left side. To my observation, that did not reflect any pain being (immediately) experienced. The hand appeared casually placed on his left hip, for no particular reason. It was not placed there for long.
In the latter surveillance footage filmed on 5 September 2019, the plaintiff was at home, out in the backyard. He was trying to change a light bulb in the carport. For this purpose, he was observed climbing a step-ladder. His wife gave evidence that she had placed it there. The plaintiff was seen raising both his arms, bending, twisting his body and getting on an off the step-ladder. As the footage developed, the plaintiff was seen carrying what appeared to be a plank. In another instance, he was seen bending down to place something on the ground. Although he appeared to bend his legs to do so, there was no hesitation or tentativeness in his doing so. Further in the footage, he was seen to climb a ladder, holding it with his right hand whilst holding something else (possibly a bag) in the other. This ladder was distinct from the step-ladder that had been placed for him. Although the footage did not certainly reveal that he was carrying it, I infer from what I saw it was the plaintiff who was carrying and put it there.
The plaintiff accepted that the film showed that he was able to work at home without difficulty.

[7]

Plaintiff's medical evidence

The plaintiff was examined by Dr Fuller, a neurosurgeon, who reported on 20 March 2018. Dr Fuller reported the plaintiff's complaints of back pain and left leg pain, which pain was worse when the plaintiff was sitting, standing and lifting. Commenting on the MRI, Dr Fuller found no cause for the plaintiff's complaint of leg pain.
The plaintiff primarily relied upon the opinions of Associate Professor Fearnside, a clinical associate professor whose speciality was in neurology, who reported on the plaintiff in September and October 2019 and also Dr Porteous, an occupational physician, who reported on the plaintiff in July 2017, November 2018, January and June 2020.
To a not insignificant degree, Associate Professor Fearnside's views were modified in the light of his observation of surveillance footage; as became apparent in the joint report he prepared with Dr Coroneos (see below). Nevertheless, as the plaintiff's Counsel submitted, he adhered to certain views.
In his first report of 9 September 2019, Associate Professor Fearnside found on examination that the plaintiff's lumbar spine was near immobile and that lumbar spinal movements were symmetrically decreased by 80% in all directions. He added that straight leg raising was limited to 70° in the right leg due to back pain and 40° in the left leg due to back pain and reproduction of sciatic pain. Associate Professor Fearnside diagnosed an aggravation of the plaintiff's lower back which was likely pre-existing (and asymptomatic) as a result of the motor vehicle accident. He considered the plaintiff's prognosis to be poor with the plaintiff likely to continue to experience similar symptoms for the foreseeable future. He thought that, at that point, it might be worth considering a further injection to the plaintiff's lower back.
In his report of 30 September 2019, Associate Professor Fearnside responded to the report of the defendant's expert neurosurgeon, Dr Coroneos. Given that the plaintiff had ongoing symptoms, he disagreed with the view that the neurosurgical injury had resolved. The plaintiff's history of left sciatic pain indicated that he was dealing with more than a soft tissue strain.
In his report of 22 October 2019, Associate Professor Fearnside responded to a further report from Dr Coroneos analysing the radiological evidence. He referred to the MRI of the plaintiff's lumbar spine on 7 May 2018, which I referred to earlier. The significant pathology was at L3/4 on the left which likely explained the pain that the plaintiff reported in his left leg. Associate Professor Fearnside also noted that the clinical records from the RNSH pain clinic recorded a history of back pain and left sciatic pain. He referred to Associate Professor Molloy's report of the plaintiff complaining of left leg pain that was 'shooting and burning'.
Dr Porteous first consulted with the plaintiff on 20 July 2017. In his report of that date, Dr Porteous diagnosed that the plaintiff had aggravated an underlying degenerative change as a result of the whiplash-type injury in the neck and the lumbar spine, with symptoms continuing from the accident. He considered that the plaintiff was restricted from prolonged sitting and from frequent or constant bending. This supports the plaintiff's claim to both a loss of earning capacity and for future domestic assistance.
These opinions were expressed in his reports of 6 November 2018, 9 January 2020 (in which Dr Porteous also noted the plaintiff's high level of rating for neck pain) and 2 June 2020. In the last of these reports, Dr Porteous was asked to reconsider his views having regard to the surveillance footage. His views had not altered and he regarded the plaintiff's prognosis as being guarded. As to the surveillance footage, after summarising what he saw, Dr Porteous considered that the surveillance was only points in time and did not reflect the amount pain relief taking the time, the level of pain that existed, the resultant increase in pain that the activities may have caused and the timing of the activity in terms of the symptoms.

[8]

Defendant's medical evidence

The defendant relied upon reports prepared by Dr Keller, an occupational physician, and Dr Coroneos, a neurosurgeon.
Dr Keller first examined the plaintiff in November 2017. He found unexplained restriction of motion in the plaintiff's shoulders and restriction of flexion in his lumber spine. He diagnosed a soft tissue strain of the lumber spine; aggravating pre-existing degenerative changes, which were consistent with his age. Dr Keller regarded it as likely that he would be unfit for work for some weeks, and may require a gradual return to work over one to three months. The soft tissue strain should have resolved completely within a year.
When he examined the plaintiff again in December 2018, Dr Keller found significant symmetrical restriction of motion in the lumbar spine. The diagnosis he provided in November 2017 was unaltered. He considered that the plaintiff's presentation was not consistent with his physical capacities: he did not consider that there were any genuine restrictions.
Dr Keller examined the plaintiff again in April and May 2020. It was not clear to him why the plaintiff's pain had persisted for more than 3 years since the accident, but he attributed it to degenerative changes rather than lasting effects of the accident. The examination in April 2020 was complicated by the plaintiff's left rib pain; but he could not find objective findings of ongoing injuries to his lumbar spine. His diagnosis of a lumber spine soft tissue strain was unchanged. He considered that his diagnosis was supported by the surveillance footage.
Dr Coroneos first examined the plaintiff and reported on him on 4 September 2019. Following that examination (which he said had been conducted without the MRI examination films), he opined that the plaintiff's symptoms were not reasonable from his neurosurgical perspective nor were caused by the subject accident. He thought that he plaintiff experienced a lumbar soft tissue strain, for which the neurosurgical effects had ceased.
Dr Coroneos supplied a supplementary report, dated 24 September 2019, having been supplied with radiological films relating to his spine from December 2016 to August 2019. He commented that the changes viewed in the imaging were of lumbar (and cervical) spondylosis and opined that none were caused by the subject accident. He adhered to his views from his primary report: that there was no evidence of significant neurosurgical spinal injury.
Dr Coroneos provided a further supplementary report in May 2020 in which he adhered to his opinions following the examinations on 4 and 24 September 2019. This report followed his receipt of the surveillance footage. Dr Coroneos commented that the surveillance noted the freedom of the plaintiff's movement and engagement in activities inconsistent with his claimed incapacities and restrictions.

[9]

Joint expert reports

A report was prepared jointly by Associate Professor Fearnside and Dr Coroneos. It was dated 26 June 2020.
Associate Professor Fearnside adhered to his position that the injuries were an aggravation of lumber spondylosis. The plaintiff had a pre-existing condition of lumbar spondylosis which had been asymptomatic. The plaintiff's symptoms were partly caused by the accident and partly due to the plaintiff's lumbar spondylosis.
He thought that, assuming the veracity in what the plaintiff complained about, his symptoms had continued, however, that was not the anticipated natural history of such an injury would have stabilised and improved, and even resolved by now.
Dr Coroneos' opinion was unchanged from his report of 4 September 2019, which was that the plaintiff has suffered a lumbar soft tissue strain whose neurological effects have ceased. He thought that the effects of the lumbar soft tissue damage would have settled within a few weeks with no ongoing symptoms. Dr Coroneos was influenced in this regard by his observation of the surveillance footage: he said that the inconsistency between earlier clinical findings and the activities recorded in and accepted by Associate Professor Fearnside were "quite significant and gross". He noted, however, that surveillance footage was only a minor part of the medico-legal assessment and he had already formed his conclusions before seeing it.
Dr Coroneos noted that the second surveillance film (5 September 2019) was timed at a point that was proximate to his examination of the plaintiff (on 4 September 2019) and Associate Professor Fearnside's consultation with the plaintiff (on 9 September 2019).
As to the surveillance footage, Associate Professor Fearnside accepted that the surveillance and the findings on physical assessment were "entirely inconsistent": when he examined the plaintiff's back, it was rigid and he appeared to be in much pain. But the surveillance footage showed spinal movement with no obvious restrictions and no discomfort in a number of activities, such as when the plaintiff was bending and standing on a ladder. Associate Professor Fearnside did, however, prefer to defer expressing final opinion until after the plaintiff had the opportunity to respond to what was contained within the footage. Associate Professor Fearnside apparently considered that it would be unfair to form any conclusions prior to hearing what the plaintiff had to say about the surveillance footage. Nevertheless, he accepted that it appeared "likely that the plaintiff was not as disabled as he had presented" to him.
A separate report was jointly prepared by Dr Porteous and Dr Keller. This report was dated 17 July 2020.
Dr Porteous consider that the plaintiff had an aggravation to underlying degenerative changes in the lumbar spine. These symptoms were now likely to be long term. They were causally related to the accident. The plaintiff's prognosis was only guarded.
Dr Keller considered that the plaintiff has sustained a soft tissue strain to his lumbar spine which was an exacerbation of pre-existing lumbar spine degenerative changes. This would take some months to recover from. However, any symptoms causally related to the subject accident would have been expected to be resolved by this point. It is age-related degenerative processes which are now responsible for any ongoing symptoms or disability.
As to the surveillance footage, Dr Porteous was not deterred or deflected in his opinion, in this regard, by what he saw from the surveillance footage: he regarded that footage as representing an inadequate sample of the plaintiff's actions to draw conclusions. He opined that momentary glimpses of a person's position did not clarify the pain levels that person then had or the pain experienced after the position, or indeed the amount of pain medications that have been taken by that person. Dr Keller considered that the surveillance footage supported his opinion that the plaintiff had no persisting disability relating to the accident. He compared the degree of flexion and movement of both sides of the body from the time of the assessment of the plaintiff in 2020, and what was apparent in March 2018. Generally, the footage supported his impression that there was no persisting lumbar spine disability.

[11]

Plaintiff's medical evidence

The plaintiff relied upon a report from Dr Singer, a psychiatrist, dated 13 June 2019 and reports from Dr Jungfer, a consultant psychiatrist. Dr Jungfer's reports were prepared in March 2019 (following an examination of the plaintiff on 5 March 2019) and March 2020 (following an examination on 24 March 2020), respectively.
Dr Singer had seen the plaintiff after his having undertaken a multidisciplinary assessment conducted at the RNSH on 21 March 2019. The Individual Pain Management Plan (Exhibit D) reported the plaintiff's complaints of pain down the left side, from the middle of the plaintiff's back, down his hip and leg. The plaintiff reported that his pain increased by sitting, or walking, for more than 10 minutes at a time, bending over, and lying down. Pain was also experienced by his being in the same position for longer than 10 minutes. On the subject of his mood, the document records the plaintiff stating that he became depressed a few months after the accident, since he could not do what he used to be able to do and his "whole life had changed". He was reported as expressing anxiety as to whether his pain would go away and how his family will cope financially. He did not find psychological therapy helpful. Recommendations for him included his taking antidepressants and, it appears, psychological or psychiatric counselling and physiotherapy.
Based upon what the plaintiff had reported to him, Dr Singer considered that the plaintiff developed major depression in the context of his injury and persistent pain against the background of a rubric of losses, including loss of work, his role as a provider for his family and financial difficulty.
Following her initial examination, Dr Jungfer diagnosed the plaintiff with an adjustment disorder which she attributes to his chronic pain. That is to say, she diagnosed an adjustment reaction with mixed emotional features, with the predominant features being depression and an angry mood. This was based upon the history that he provided, as well as his wife's description as to how the plaintiff had coped since the accident. She regarded the disorder as partly caused by his inability to work due to pain-related problems. She stopped short, however, of diagnosing Post-Traumatic Stress Disorder. She opined that the plaintiff's prognosis was guarded.
When Dr Jungfer saw the plaintiff for the second time in March 2020, the plaintiff had recently had his fall, in February. She also had the benefit of considering the view of another psychiatrist, Dr Singer, who believed that the plaintiff had major depression; as well as Associate Professor Fearnside's report of 9 September 2019. Further, she had the benefit of viewing the surveillance footage. She generally considered that psychiatrically, his injuries were unchanged from March 2019.
Dr Jungfer noted in her second report that the plaintiff presented as a challenging historian. She described him as presenting with a 'catastrophic reaction' to his pain and disability. When she referred him to the surveillance footage, she noted his response that his conduct was explicable to pain relief which had allowed him to do more. She acknowledged the complication in providing an assessment of the continuing role of the accident to his mental state, having regard to his fall. Nevertheless, she rejected the view that the plaintiff had sustained a major depressive illness and adhered to her view that he had an adjustment reaction related to his chronic pain complaints and change in life circumstances, with mixed emotional features. His prognosis was poor. She attributed the adjustment disorder to the subject accident having regard to the absence of prior psychiatric illness or other comorbid psychiatric triggers. His disorder was caused by his inability to work which was secondary to his pain.

[13]

Submissions

The defendant accepted that the plaintiff had age-related degenerative changes, but submitted that the Court should not accept the plaintiff's evidence about the extent of his disabilities. This was because the Court should make adverse findings as to his credit, which spilled over into the Court's evaluation of the medical evidence which was to a significant degree founded upon, or assumed, the veracity of what the plaintiff said to the medical professionals.
Although Counsel for the defendant accepted that the plaintiff's wife was an honest and credible witness, she was similarly reliant upon what the plaintiff told her.
Further, although the Court had to weigh the extent to which the claimed physical injuries and psychiatric disorder combined to reduce his working capacity and his domestic care, the psychiatric evidence boiled down to the issue of the extent to which the plaintiff suffered pain.
Counsel for the defendant submitted that the defendant's medical evidence was balanced. It was not the defendant's case that no physical injury, and consequent restrictions, had been suffered at all; but rather that they were limited to a narrow period of time. This was a case, Counsel said, of a minor soft tissue injury which would have lasted only a few weeks. The medical evidence, he suggested, was to some extent consistent with the defendant's evidence of the impact of the collision; which indicated a minor collision involving minimal damage to the vehicles involved. Counsel referred me to the views of Doctors Keller and Coroneos. A useful comparison as to the impact of this collision was the impact of the plaintiff's fall in February 2020, where he was hospitalised for close to three weeks, with fractures to different parts of the plaintiff's body: his ribs and, to some extent, his back. Certainly, by the time of the first surveillance in March 2018, he had no further ongoing restrictions.
Perhaps in anticipation of his opponent's later emphasis upon his opinion, Counsel for the defendant noted that Associate Professor Fearnside's continued support of the plaintiff's complaints assumed the veracity in his presentation and he noted that for the type of injury sustained, it was unusual for it not to have stabilised, improved or resolved in the passage of time. At any rate, Associate Professor Fearnside did not consider that further treatment was needed. Counsel noted that Associate Professor Fearnside was somewhat less than wholehearted in adhering to his views in the face of the surveillance evidence pending explanation by the plaintiff as to the inconsistencies between his complaints and what was apparent, but he ended up by saying that the plaintiff was not as disabled as he had presented.
Counsel for the plaintiff accepted that the central issue in the case was the plaintiff's credit, but the Court should find that he was credible. He made concessions. He has worked as a taxi driver for many years and lodged tax returns for doing so. He reasonably tried to finish his work shift on the day of the accident. Counsel confronted the surveillance footage. She drew my attention that both at Bunnings and at home, he was observed to have placed his hand on his back. This, she submitted, was consistent with his complaints of pain. She submitted, as I understood her, that partial explanation for the apparent inconsistency between the plaintiff's description of his restrictions and what was depicted in the surveillance was not just having injections, but also possibly, medication as well. Further, although certain of the medical professionals referred to the plaintiff's self-limiting behaviour, sometimes claimants do not fully co-operate during the difficult procedures of medico-legal examinations.
Counsel submitted that, contrary to the defendant's reference to Associate Professor Fearnside' evidence, after the latter had seen the surveillance, he did not retreat from his opinion, which was supported by radiological evidence, that the plaintiff had restrictions in the flexion of his left leg and suffered pain in the left leg which followed from the pain in his lower back. Nor did Associate Professor Fearnside resile from his opinion that the plaintiff was incapable of resuming work as a taxi driver. Counsel acknowledged that for what was the aggravation of degenerative change, in the majority of cases, injured victims get better, but that was not always necessarily the case.
Counsel for the plaintiff emphasised that the plaintiff's complaints of restrictions and disabilities were corroborated by his wife; not only because of what he could not do in comparison to his capabilities prior to the accident, but also his irritability and short temper which, the Court was asked to infer, was attributable to the on-going pain associated with his injury. Further complaint was made and recorded in the RNSH notes after the plaintiff's fall in February 2020 where he referred to his chronic low back pain.
Overall, Counsel for the plaintiff submitted that the Court should accept that, as a result of the accident, the plaintiff has suffered lower back pain and pain down the left leg; for which he was referred to a neurosurgeon and the RNSH Pain Management Clinic for management. The pain has caused him to suffer a depressive illness as a result. It was an incontrovertible fact that there was an aggravation of the plaintiff's lumbar spondylosis where there was no evidence of any back problem prior to this accident. Having a vulnerable spine, she submitted, meant that when the defendant's vehicle struck the plaintiff's vehicle, it caused the symptoms to change and the defendant had to bear the consequences.

[15]

The plaintiff

I harboured doubts about the plaintiff's credibility. I did not regard his evidence in response to the surveillance to be plausible. The content of the surveillance footage was damaging to his credibility, showcasing as it did the plaintiff's physical capacity to engage, without obvious restriction, in certain daily activities, including his capacity to raise his arms, walk, stand, bend his back and twist his body, which were contrary to his accounts given to various medical practitioners as well as to the Court. Contrary to the plaintiff's evidence, the timing of the injections to his back was not temporally co-incident with the activities depicted in the surveillance footage, when reference is made to the timing of the injections in the chronology (Exhibit A) whose correctness the plaintiff attested to. I did not accept his evidence, in effect, that the surveillance merely caught him on two good days and regarded that as somewhat glib. I note, in this regard, the close proximity between the surveillance footage capturing his changing a light bulb (the September 2019 footage) to his examinations by Dr Coroneos and Associate Professor Fearnside. In the latter case, he exhibited to Associate Professor Fearnside virtual, or 'near' immobility in his back with movements decreased by 80% in all directions as well as limited ability to raise his left leg with sciatic pain.
The plaintiff was well aware about the surveillance undertaken of him and had time to consider what evidence he might give when asked about it. That evidence was unconvincing. When confronted with surveillance footage, he audibly sighed.
There were other parts of his evidence which was indicative of significant exaggeration, such as his evidence that he could only lift weight in the order of 200-300 grams. Part of the surveillance indicated his capacity not only to hold an item, but to hold items in both hands simultaneously. It also seemed to me a fairly obvious exaggeration for him to say to Associate Professor Fearnside that he had a sitting tolerance of no more than 5 minutes. It was clear from his giving evidence in Court (in a pressured environment) that his tolerance for sitting extended well beyond that estimate. He was, in fact, very demonstrable in the movement of his body and hand gestures, and at no stage did he flinch.
Sometimes, I considered that his evidence bordered on the confrontational with the cross-examiner. Challenged on the completeness of some of his answers under cross-examination, he resorted to asking questions of the cross-examiner, or explaining that he only provided answers to "what you're asking". In more than one instance, he appeared more intent upon providing explanations that were not called for by the questions without answering the question directly.
The plaintiff gave his evidence through an interpreter, which was reasonable enough in circumstances where he had indicated this proficiency in English was limited, but even with the assistance of an interpreter, he implausibly suggested that he did not understand what was being put to him when it said that he had 'exaggerated' and did not understand what was meant when it was suggested that he had 'pretended to be disabled'. I regarded those answers as being feigned and, at any rate, tended to demonstrate that he was very conscious of the effect his evidence might have in advancing his forensic interests.
Further, I accept that there was some inconsistency between the plaintiff's evidence of his physical restrictions and the content of the 'NSW Fitness to Drive Medical Assessment' he completed on 23 August 2019 (Exhibit 1, pp 274-276).
For these reasons, I am reluctant to accept his evidence unless corroborated, or consistent with other facts objectively established.

[17]

Findings on physical injuries

There is no dispute that the plaintiff suffered injury to his lower back and that he was restricted for a period of time. There is also no dispute that the plaintiff had degenerative changes in his lower back, or lumbar spondylosis which was aggravated by the subject accident. The issues are whether he also suffered a left leg injury and for how long the plaintiff has felt pain, and consequential disabilities from his physical injuries.
The issue can be viewed through the prism of causation. Although this claim for damages is to some extent governed by the Motor Accident Compensation Act 1999 (NSW), the issue of causation is governed by the Civil Liability Act 2002 (NSW) (s 3B(2)(a)), which clearly imposes the onus of proof on the plaintiff in relation to the elements of causation (ss 5D and 5E).
Nevertheless, guidance may be received from authorities such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. A tortfeasor must take her victim as she finds him, however, where a plaintiff has a pre-existing condition (here degenerative changes in his lower back) that would ultimately likely have affected the claimant anyway, the tortfeasor should be liable only for the acceleration wrought by her negligence (Luntz, Assessment of Damages for Personal Injury and Death, LexisNexis Butterworths revised 4th ed, 2016 [2.2.1], p 207).
In this context, there is a practical issue concerning onus of proof. The authorities I have referred to indicate that it is incumbent upon the tortfeasor to establish by evidence the pre-existing condition and its future probable effects or actual relationship to the incapacity. That is its evidentiary onus. Thereafter, it is for the plaintiff who carries the ultimate onus of proving the extent of the injury caused by the tortfeasor's negligence (Purkess per Barwick CJ, Kitto and Taylor JJ at 168). As to what the tortfeasor must do in terms of its evidentiary onus, it is evidence sufficiently precise and definite to displace the inference that the disabling pain suffered was caused by the accident (Purkess per Windeyer J at 171; applied in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 per Ipp JA (Mason P agreeing) at [100]).
In my opinion, the defendant has discharged its evidentiary onus that the onset of pain and physical restrictions in the plaintiff's movement that was attributable to the subject accident should have abated within a year of the incident, by November 2017. In other words, such pain and restrictions as the plaintiff has encountered beyond that period are not causally attributable to the accident. At any rate, what is material for the purpose of findings on the plaintiff's claims under the heads of damage, in relation to the future, is that any further pain and physical restrictions are not attributable to the accident.
This was a conventional whiplash injury. The slight indications in the evidence suggested that the car in which the plaintiff was driving was not written off: it was capable of being driven home. The plaintiff's car did not move very far forward.
I am cognisant of and accept the plaintiff's points that he had no prior back injury; that his evidence of injury to both his back and lower leg was the subject of complaint, to both his wife and also the RNSH; although, in the latter case, there was no precision as to the extent of injury. Further, although Dr Coroneos expressed doubt whether the radiological evidence supported the plaintiff's account of pain down the left leg (see the Joint Report with Associate Professor Fearnside at Tab 35 of Exhibit 1, p 304, Answer to Q2), on balance, I accept the plaintiff's evidence about this particular injury having regard to the consistency in which the plaintiff has complained about it.
The preponderance of the medical evidence suggests that the type of injury and the way in which it was suffered should have resolved itself well and truly by now. I refer here not only to the evidence of Drs Coroneos and Keller, but also the evidence of Associate Professor Fearnside who indicated that an injury of this kind would naturally have stabilised, improved or resolved (joint report, Exhibit 1, p 305, Answer to Q3). Although it is unnecessary to choose, of all of these doctors, and without the benefit of seeing them give evidence, I was perhaps most impressed with Dr Keller's evidence, summarised earlier, which presented a balanced account. His opinion coincides with my own that such complaints as the plaintiff now has concerning his pain and physical restrictions are most likely attributable to his degenerative condition rather than the subject accident.
Dr Porteous is an exception in this regard, although he also accepted that the plaintiff had suffered aggravation of underlying degenerative change. But with respect to him, it did not appear to me that he considered the extent to which the lower back injury would naturally tend to resolve itself and consider why this plaintiff was in something of an exceptional class. Further, it seemed to me that Dr Porteous was heavily reliant upon what the plaintiff had reported to him: in his 9 January 2020 report, for example, he proceeded upon what appeared to be very exaggerated accounts by the plaintiff of his level of pain - 8/10 for the plaintiff's neck (about which the plaintiff gave no evidence at hearing) and pain in the lower back of 9/10 and 10/10. This January 2020 report, of course, followed an examination on 9 January 2020 which post-dated the plaintiff's activities recorded in the surveillance footage.
As to that surveillance footage, Dr Porteous' opinion was again something of an outlier. Associate Professor Fearnside candidly acknowledged the likelihood that the footage showed that the plaintiff was not as disabled as he presented.
As indicated, I have closely examined the footage which very significantly showed inconsistency between the plaintiff's presentation of his restrictions and his physical capabilities as displayed in the surveillance footage. The circumstance that it depicted free movement, on two dates well apart, in relation to ordinary activities (shopping and handiwork, respectively) cannot be accounted for as a mere co-incidence. Both films showed a conspicuous absence of physical inhibition. They fortify the preponderance of the medical evidence that such physical restrictions as might have been caused by the subject accident probably had ceased within a year of the accident.
As I have also indicated, I regarded the plaintiff's explanation for those inconsistencies as unsatisfactory. It surprised me and, in my view, reflected adversely upon Dr Porteous' credibility, that he (unlike Associate Professor Fearnside) did not appear to allow for the possibility that his earlier opinions might require revision in the light of what was seen in the surveillance footage.
I consider that the view I have reached accommodates the plaintiff's position to the extent that the defendant does not say that he is not experiencing any recent or current pain. Ultimately, however, with the defendant having furnished evidence that the physical restrictions and pain attributable to the accident should have subsided well before the hearing, the plaintiff carries the ultimate onus of proving that they did not. I am not persuaded that the pain he has experienced since the accident is currently attributable to the accident.
Notwithstanding the aspect of causation however, and although I have cast reservations upon his credit, to a not insignificant degree based upon the surveillance footage, I am prepared to accept that he has suffered on-going symptoms of pain and is likely to do so into the future. Although some of the experts have opined upon his self-limiting behaviours upon examination, at least a few of them did not. Prior to his sighting of the surveillance footage, Dr Keller did not discount the possibility that the plaintiff continues to experience back pain and he accepted, in his re-examination of the plaintiff on 17 December 2018 - a full two year after the accident (and after one of the surveillance films was taken) - that there was significant symmetrical restriction of motion in his lumbar spine. Dr Keller said in the joint report with Dr Porteous (after being made aware of the surveillance footage) that he expected the plaintiff's symptoms to be "long term". Associate Professor Fearnside also opined (though qualified by his view about the plaintiff's credibility) in his joint report with Dr Coroneos that his symptoms "could likely continue".
In relation the surveillance footage, although it falsifies the extent of the restrictions testified to by the plaintiff, in my opinion it is not altogether inconsistent with the complaint of a middle aged man who frequently suffers pain in his back and down his left leg. The activities depicted in the surveillance were not overtly strenuous. They were capable of being performed by a man in this plaintiff's position and circumstances, being the aggravation of degenerative changes in the lower back. They show that the plaintiff may have exaggerated, but do not conclusively falsify, his evidence that he does suffer pain at certain points and that this has impeded him in his work and domestic activities. It is difficult to say whether his exaggeration was deliberate or was simply part of his make-up: his psychiatrist referred to his propensity to "catastrophize". Given the gravity of the allegation, I am inclined to think his exaggeration was not such as to amount to an attempt to deceive the Court. I am influenced in this finding not only by his evidence, but also that of his wife, a witness of credit. Contrary to the defendant's submission, her evidence was not just probative of the plaintiff's making complaint, but also her personal observations of the plaintiff after the accident, including up to the point when she gave evidence.

[18]

Findings on mental harm

What findings I have made about attribution for the plaintiff's physical restrictions to the subject accident beyond a certain period, are not necessarily dispositive, since consideration needs also to be given to the mental harm asserted by the plaintiff. As noted, there was no joint conference between the experts relating to the plaintiff's claim of mental harm. Further, there was little attention in the parties' submissions as to the plaintiff's mental harm and what follows from it.
It appeared to be not disputed that the plaintiff has suffered mental harm causally attributable to the accident. Dr George did not say otherwise. The plaintiff's account to Dr Singer as to his mood and behaviours since the accident was plausible, as it was in the RNSH multidisciplinary assessment undertaken in March 2019. His evidence of no prior mental harm was unchallenged. Further, his account as to his mood and behaviour, domestically, was corroborated by his wife. I also add that my impression of him when giving evidence was, to my eye, that he appeared flat in his bearing.
Further, I am satisfied on the balance of probabilities that his mental harm is continuing and will continue in the future. In this regard, Dr Jungfer said that "should (the plaintiff) be able to achieve some symptomatic recovery and return to work, it is likely that there could be an improvement with regards to his mood" (my emphasis). As I have shown, it was a contentious matter whether or not his physical symptoms really have improved, but the plaintiff has not been able to return to work. This is something of a vicious cycle for the plaintiff: his pain and symptoms make him hesitant to return to work whatever the objective medical evidence may suggest, but without the work, his mental health does not improve. His evidence that I referred to at paragraph 57 struck me as plausible.
Although it is probably unnecessary to choose between the various diagnoses, it strikes me that Dr Jungfer's account is preferred. Her report was very comprehensive. It was balanced and consistent with the lay evidence of symptoms. She was realistic when appraising the plaintiff as having a 'propensity to catastrophize', which is consistent with the impressions of the vocational experts and my own. She was also balanced in her acknowledgment of the content of the surveillance footage. I consider Dr Fuller's evidence to be excessively bleak and, with all respect to him, there was not a great deal of reasoning which was exposed to support his diagnosis. Dr Jungfer did not agree with Dr Fuller that he did not have a major depressive illness.
I do not accept the opinion of Dr George, based as that opinion was upon the view of Dr Coroneos, to the effect that as the neurosurgical effects of the soft tissue injury to the back subsided, so too did his psychiatric morbidity. It did not appear to me that there was any reasoning to sustain that view and it does not strike me as logical: I do not see why a cessation of physical difficulty should necessarily result to an end of mental health concerns.
I find that his adjustment disorder is enduring and is likely to endure and, further, that this condition has been caused by the accident. To this extent the 'but for' test of factual causation is made out under s 5D(1)(a) of the Civil Liability Act.
An issue of some significance when dealing with discrete heads of damage is the contributions to the plaintiff's mental harm which is made by the physical pain and restrictions experienced by the plaintiff and his inability to work. Since the inability to work is due to the pain related problem, there is plainly no bright line. But where, as I have found, the current pain and restrictions is not causally related to the accident, there is arguably a question whether the normative 'scope of liability' test for causation (of the mental harm) is satisfied. This was not, to be sure, raised by the defendant and, in my view, properly so. There is a symbiotic relationship between the pain (which, at least initially, was caused by the accident, and which continues, as I have found) and the inability to work and it accords with common sense, in my view, that as time passes with unemployment, the problems associated with lack of motivation, diminished morale and drive and anxiety are likely to persist even if the source of the physical pain is no longer the subject accident, but rather the underlying degenerative changes. Accordingly, I am also satisfied that the 'scope of liability' element to causation under s 5D(1)(b) of the Civil Liability Act is also satisfied in relation to the plaintiff's mental harm.

[22]

General principles relating to claims of future damage and loss

Before I proceed to consideration of future out of pocket expenses, and the other claims in respect to future loss, it is pertinent to refer to principles. Section 126 of the Motor Accidents Compensation Act 1999 (NSW) is materially the same as s 13 of the Civil Liability Act.
In Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171, the Court of Appeal (Payne JA, with McColl and White JJA agreeing) determined (at [128]-[138]) that s 13 of the Civil Liability Act applied to claims for future economic loss not only in relation to future loss of earning capacity, but also damages for both future domestic care and future medical expenses. By s 13(2), this means that unless a future event is practically certain to occur, the Court must approach the assessment of damages, for those heads of damage, with reference to calculation of the percentage possibility of a future event occurring, and then adjusting the award of damages to reflect that calculation. As Payne JA indicates, this is a reflection of common law principle developed by the High Court in Malec v JC Hutton (1990) 169 CLR 638. Further, his Honour noted that if awards are made in accordance with the life expectancy tables, this does not obviate the need for further discount for contingencies (at [139]) after the multiplier has been used.
By parity of reasoning, the same approach must apply to s 126 of the Motor Accidents Compensation Act. This affects each of the plaintiff's claims to future medical expenses, future loss of earning capacity and future domestic care.
I have found that the plaintiff's physical restrictions ceased being attributable to the accident within a year of the subject accident. To the extent that the heads of damages for future loss are based only upon physical restrictions, then they cannot be established for want of a causal connection with the accident. But as I have indicated, this does not reckon with the plaintiff's mental harm, which I have found continues to be disabling and is likely to be disabling into the future, and which harm has been caused by the accident, and which mental harm is associated with the plaintiff's continuing pain and restriction; notwithstanding that such pain and restriction is associated only with degenerative changes and is no longer attributable to the subject accident. The general issue common to each of the heads of damages for future expenses, future loss of earning capacity and future domestic care (or, more precisely, future lawn mowing services) is the possibility that the plaintiff's future loss might be caused by factors other than the accident. This includes the question posed by the defendant being the extent to which the other 'unrelated conditions' the defendant identified might generate loss in the future.

[23]

Medical evidence

Both Associate Professor Fearnside and Dr Coroneos agree that no further neurological treatment will be useful for the plaintiff. Associate Professor Fearnside considered the plaintiff is likely to require ongoing analgesics. He did not think, on balance, that he would require any physiotherapy although he thought that this should be available to him should he experience a severe exacerbation of his back pain or sciatic pain.
In the joint report, Dr Porteous suggests that the plaintiff will continue with the treatment that Dr Porteous had suggested in his January 2020 report. Dr Porteous had considered that the plaintiff should be reviewed by a neurosurgeon to determine a need for further treatment. He also suggested referral to a rehabilitation physician for advice. He anticipated that the plaintiff would require physiotherapy and that he would require a psychologist to assist with his rehabilitation. Further, he will require ongoing pain relief ($45 a month) and a need to see his GP between two and four times a year. Dr Keller did not believe that any further treatment was warranted which was attributable to the subject accident.
Insofar as his mental health is concerned, in her first report, Dr Jungfer suggested that he take an antidepressant such as Duloxetine to improve, relevantly, his mood-related symptoms. She also suggested his referral to a pain management program. In her final report, she suggested ongoing pain management program.
Such pain management program was evidenced by an interdisciplinary plan (Exhibit D), dated 21 March 2019. The report identified the need for the plaintiff to take 30mg of the antidepressant Duloxetine, and psychiatric review. It had noted the plaintiff's complaint of pain down his left side from the mid back down to his hip and leg and, amongst other things, his complaints of disrupted sleep; as well as the pain he suffers from sitting and walking for more than 10 minutes. Reference was vaguely made to some form of psychological or psychiatric assessment and physiotherapy.
For the defendant, Dr George indicated at the time of his examination in April 2019 that if the plaintiff's chronic pain continued in the longer term, he might consider psychotherapeutic endeavours with a review in 12 months.
The plaintiff currently takes the medication 'Lyrica' and Panadeine Forte to help him alleviate his back pain. He ordinarily takes Lyrica and Panadeine Forte twice a day.
His prescription for Lyrica is 2 per day; though he said he does not always take this. A packet of Lyrica usually lasts him about a fortnight; and costs him $6 a packet. A packet of Panadeine Forte usually lasts 3 weeks and also costs him $6. He applies Deep Heat to his lower left back and left leg. That tube usually costs him $20.25 and lasts for 3-4 weeks.

[26]

Past loss of income

The plaintiff is of Iranian extraction. He came to Australia in about 1991 after having reached the equivalent of year 12 education. When he arrived in Australia he undertook lessons in English at a school for migrants in Fairfield. He is able to speak English to some degree although it is limited. In the first few years after his arrival in Australia he had various jobs as a car detailer, kitchen hand and process worker in a picture frame factory, although these were not especially enduring. He became a taxi driver in 1995 and became employed by He Heng Sheng Pty Ltd in 2014. He worked full-time as a taxi driver with that entity when the accident occurred in November 2016.
At the time of the accident, the plaintiff was employed as a taxi driver. He alleged in his Statement of Particulars that he worked for 10 or 12 hours a day, 5 days a week. His shift was generally between 3:00pm and 3:00am in the morning. His wife corroborated this last evidence.
The plaintiff's tax returns for the period 30 June 2010 to 30 June 2016 were in evidence. They revealed that the plaintiff's annual taxable income (gross) was: 30/06/10 $24,491 30/06/11 $30,106 30/06/12 $18,936 30/06/13 $25,479 30/06/14 $17,098 30/06/15 $25,171 30/06/16 $26,918
I referred earlier to his diabetic condition. A symptom of this was that he got thirsty and tired. He takes medication for his condition. He disputed that fatigue had caused him issues with his work prior to the accident (MFI 1, p 281, tab 34).
He claimed in his Statement of Particulars that his net weekly earnings were $600. The plaintiff gave evidence that he was enjoying his work, and intended to continue with it indefinitely, but for the accident.
He worked for several days after the accident. He worked for another 4 hours on the night of the accident. The plaintiff explained that the owner said that he would have to pay for the use of the vehicle even if he did not use it, so, in that sense, the plaintiff indicated a sense that he felt he needed to drive it. He worked on 1, 7, 8 & 9 December 2016 for a substantial part of his usual 12 hour shift (with more hours worked on 8 & 9 December 2016). The plaintiff appeared to suggest that it was not practical for him to work close to his home in Ryde: the nature of the job meant that if, for example, he was called from somewhere near Ryde to go into the city, there was every chance he might be required to drive to some other suburb far away from home.
He has not been able to drive since February 2020. He said he last drove in 2019; although in August 2019, he attended a medical assessment for the purpose of obtaining his commercial driver's license. He attributes his inability to work to his back injury; although in my view it is beyond his competence for him to make such attributions, either in relation to pain restrictions or for his issues with his mental health. He accepted in his evidence in chief that by reason of the fall that he had taken earlier in 2020, he would have been prevented from taxi driving, at least for a period.
Under cross-examination, it was suggested that the pain associated with a neck injury - the severity of which he reported to Dr Porteous - could also have made it difficult to drive the taxis. The plaintiff accepted this.
It was generally put to the plaintiff that since January 2017 to February 2020, when he slipped and fell, the plaintiff was fit to be a taxi driver. The plaintiff disputed this. Asked what inquiries he had made about work since the accident, the plaintiff said that he had looked for light work through a job network. He had not had any interview since December 2016; although he said that he had applied for jobs since then.
The plaintiff was referred to seeing a medical practitioner on 23 August 2019, at Meadowbank, where the plaintiff was asked whether he had other issues (including mental health and chronic pain) impeding him to which he responded in the negative. The plaintiff did not recall this. He was also asked whether he had back pain and he similarly responded in the negative. The plaintiff denied this as well.

[31]

Consideration

I find that the accident has caused a loss of capacity to earn income. The defendant accepted as much at least to some extent. Her point was that the loss of capacity ceased at a point when the physical restrictions attributable to the accident alone would have abated; and that this point was reached by January 2017, if not by February 2020, when he had his recent fall. I find, consistently with Dr Keller's view, that the physical restrictions caused only by the accident would have abated within a year. Taking a generous approach to the plaintiff, that would be November 2017. On the other hand, I do not consider that the plaintiff's fall marks some point of cut-off, or a 'novus actus' curtailing injury (physical or mental harm) occurring after February 2020.
I reiterate that, notwithstanding my reservations, particularly in the light of the surveillance footage, I consider that it is more likely than not that the plaintiff continues to have restrictions in his physical movements. I have noted my general preference for the view of Dr Keller, being that his continuing symptoms reflect degenerative changes. Further, accepting, as I do, Mrs Padash's evidence that she is still helping the plaintiff to put his trousers on, I find that the plaintiff's capacity to earn an income from getting in and out of taxis, the protracted sitting, and the lifting of what I presume is sometimes heavy luggage in an out of the taxi, has been substantially diminished.
Further, in my view the defendant's approach, focussing purely as it does upon the plaintiff's physical restrictions, is too narrow and takes no account of the mental harm caused to the plaintiff by the accident. It is insufficient for the defendant to say that because the plaintiff may arguably have been physically capable of resuming his position as taxi driver on a part-time basis - which proposition is very contestable on multiple levels - he is entitled to nothing from the point that he was physically able to resume.
As indicated, in my view, the mental harm sustained by the plaintiff, which I have found is causally attributable to the accident, has contributed to diminishing his capacity to work. The RNSH notes of March 2019 (Exhibit D) suggest that such harm developed within a few months of the accident. As noted by Dr Jungfer, Dr Porteous had reported on 20 July 2017 that the plaintiff was receiving psychological intervention.
Dr Jungfer noted in her primary report that the plaintiff felt he was letting his family down as he was not earning income. Although I have found that his pain since late 2017 is attributable to degenerative changes, the correct identification of the source of the pain is of no moment to the plaintiff in terms of his motivation to work. In my view, the plaintiff has developed what might be regarded as a sense of helplessness, where his motivation to work has been severely diminished notwithstanding his anxious appreciation of the need to work: in other words, he cannot mentally bring himself to resume his former work.
Further, contrary to the defendant's submission, I am not satisfied that it would be economically viable to the plaintiff to work for 4 hours a day, 5 days a week; having regard to the outgoings associated with that job. The defendant put on no evidence to suggest that it was. Nothing was heard, for example, from the plaintiff's employer at the time of the accident whether such reduction in time was convenient to its business.
Further still, I agree that although the defendant has suggested suitable alternative occupations, there is no proof of any particular jobs that are currently available that might yield the income that the plaintiff was earning prior to the accident.
Accordingly, I accept the plaintiff's claim for this head of damage and the manner in which it is calculated.
The plaintiff is entitled to the sum of $99,590 for past loss of earning capacity.

[33]

Submissions

The defendant submitted that Dr Porteous had found that the plaintiff had the capacity to work as a taxi driver on a part time basis. There was an issue, Counsel accepted, about the viability of his doing so given the outgoings associated with this work. Counsel noted the evidence of the Vocational Capacity Centre about alternative forms of employment in which, he submitted, the plaintiff was capable of generating earnings of $518 per week, if not more. Counsel relied upon Associate Professor Fearnside's view that he had no restriction upon his ability to work until the age of 67. Alternatively, he submitted, it was open to the Court to make allowance by way of a buffer sum. Indeed, Counsel regarded that as a preferable course to making allowance in accordance with tables.
With reference to this claim, and also the claim for future domestic assistance, Counsel for the defendant submitted that I had to take into account the vicissitudes and, specifically, he submitted that I had to take into account various 'unrelated conditions' that the plaintiff had developed independently of this accident (citing authorities such as Seltsam v Ghaleb [2005] NSWCA 208 and more recently Avopiling Pty Ltd v Bosevski [2018] NSWCA 146), which I referred to earlier. These included his diabetes, which caused fatigue, a 2017 injury to his ankle and a neck injury. I was referred to Dr Porteous giving prominence to the neck injury as causing a great deal of pain.
The plaintiff submitted that the Court should either apply the life expectancy tables, discounted by allowance for vicissitudes, or the award a buffer sum. Counsel submitted that the defendant had not established that there was an alternative job that was now available to him, given his incapacity (as distinct from an alternative occupation theoretically available to him) or that, to the extent that the Court found that he might be capable of some part-time work in his occupation as taxi driver, she submitted that the defendant had not proven that part-time work was in fact available or even financially viable given the expenses that are involved.
In response to the defendant's reliance upon unrelated conditions affecting the plaintiff's future, Counsel for the plaintiff submitted that they should be disregarded in the light of the way the case unfolded. It was not just because of the ankle injury that the plaintiff had not returned to work and, at any rate, the plaintiff's evidence about pain down the left leg extended to his ankle anyway, as a result of the accident. The plaintiff had endured his diabetes for many years; so there was no reason to predict he could not continue to do so in the future. As to the neck injury, although the plaintiff did not come up to proof on his pleading that a neck injury was also suffered as a result of the accident, to the extent that the defendant's Counsel argued that this is a matter that might affect his future capacity, he did not put that to the plaintiff; so it was not right that the defendant could rely upon it.
Counsel for the plaintiff also accepted that because of his self-employment arrangements, and the absence of evidence for provision himself, he cannot claim loss of superannuation, either for the past or for the future.
The plaintiff submitted that if the Court was to make allowance for loss of future capacity according to the tables, that it should adopt the weekly rate of $547 for another 11 years. With the multiplier, that yields the sum of $206,484.

[34]

Consideration

I accept that the plaintiff's intentions, but for the harm caused by the accident, were to continue working, until retirement, as a taxi driver. His work experience is such that he is qualified for little else. There is little developed education or other skills to speak of.
As I determined in relation to past loss of earning capacity, in my opinion, the defendant's focus upon the plaintiff's physical capabilities overlooks the impact upon the plaintiff's capacity to earn arising from the mental harm caused by the accident. Accordingly, the defendant's reliance upon Associate Professor Fearnside's view, in the joint report, is no answer to this claim.
I accept Dr Jungfer's evidence that the plaintiff's prognosis for mental health is poor with a chronic focus on pain. This has a significant 'spin-off' effect on his work capacity and is, unfortunately, self-reinforcing. The pain he has endured to date (whether causally attributable to the accident or not) has diminished his motivation to resume his former work as taxi driver or strive to consider or obtain alternative employment, or to re-skill. Further, as Dr Jungfer explains, the more irritable and short-tempered he is, the harder it will be for him to (generally) re-enter the workforce.
When accepting the probability of whether he could have continued to act as taxi driver until retirement, I note that he is in his mid-50s. I accept the force of the plaintiff's submission that taxi drivers are in a class of economically vulnerable workers - aside from anything else, competition has recently picked up in recent times with Uber drivers. I expect that level of competition will intensify. I reiterate that it has not been demonstrated that part-time employment as a taxi driver is viable, either now or in the future. I also agree with the plaintiff's submission that given his age and his current physical and mental health restrictions, his future prospects of being employed in any industry requiring physical or manual work are substantially impaired.
If I had not found that the plaintiff's physical restrictions caused by the accident had ceased by November 2017, I would have found that his pre-existing lumbar spondylosis, and also degenerative changes in his neck, would quite possibly have afflicted him in the future in any event. In my view, it is appropriate to take into account, when considering the vicissitudes the strong possibility that the plaintiff's lumbar spondylosis would have impaired his capacity to act as a taxi driver if this accident had not occurred and would have been triggered by some other unrelated cause. I also consider that it is appropriate to take into account that the plaintiff's multiple spondylosis and degenerative changes identified in the CT cervical spine as relevant to showing that the plaintiff's neck was likely in the future to impair the plaintiff's capacity to earn through working as a taxi driver. I also consider that there are industrial or occupational matters concerning taxi driving in the future that are to be weighed in the scales. I have referred already to Uber drivers, but it is not far-fetched to conceive of driverless cars reducing the need for, or viability of, taxi driving within the period prior to the plaintiff's retirement. In my view overall, even taking into account the normal ageing process, there are several factors going beyond the ordinary which point to the significant possibility of a reduced capacity to earn, unrelated to the defendant's negligence.
I am inclined to accept the plaintiff's claim as formulated by his Counsel, up to the age of 67, including the weekly rate (to reflect the CPI) selected, whilst substituting a higher discount for the vicissitudes, at the level of 40%.
With the adjustment to the level of the vicissitudes, the plaintiff's Counsel's calculations for this particular award are 547 x 444.1 x 0.60 = $145,753.62.

At a glance

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Judgment (42 paragraphs)

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Legislation Cited (3)

Cases Cited (7)

Cited By (3)