Parrish v Olympic Roadways Pty Ltd & Broome

District Court of NSW|2017-09-14|Before: Mr J

th Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Waterways Authority v Fitzgibbon [2005] HCA 57 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Category: Principal judgment Parties: Barry Robert Parrish (Plaintiff) Olympic Roadways Pty Ltd (First defendant) Rodney Broome (Second defendant) Representation: Counsel: Mr D Higgs SC with Mr D-L Del Monte (Plaintiff) Ms OJ Dinkha (on 7 & 12 September 2018 - Plaintiff) Mr J Turnbull SC with Mr J Sleight (Defendants)

Solicitors: WD Hunt & Associates (Plaintiff) Holman Webb Lawyers (Defendants) File Number(s): 2014/127938 Publication restriction: None

Table of Contents Nature of case [1] - [3] Issues [4] - [13] Evidence overview [14] - [15] Legal principles to be applied to the issues [16] - [19] Facts not in dispute [20] - [52] Approach to analysis of the medical evidence [53] - [62] Credibility and reliability of testimony [63] - [69] Findings on other relevant matters of fact [70] - [230] (1) Plaintiff's background [71] - [78] (2) Previous health, injury and medical records history [79] - [89] (3) Post-accident medical treatment and reviews [90] - [93] (4) Evaluation of the medical evidence [94] - [154] (5) Injuries sustained in the subject accident [155] - [176] (6) Treatment [177] - [190] (7) Disabilities that remain [191] - [209] (8) Work effects [210] - [217] (9) Domestic effects [218] - [228] (10) Mitigation [229] (11) Plaintiff's most likely circumstances but for the accident [230] Assessment of damages [231] - [313] Actuarial factors [232] Non-economic loss [233] - [240] Past economic loss [241] - [249] Past loss of superannuation [250] Fox v Wood [251] - [260] Future economic loss [261] - [271] Future loss of superannuation [272] Past domestic assistance [273] - [288] Future domestic assistance [289] - [299] Future out-of-pocket expenses [300] - [305] Past out-of-pocket expenses [306] - [311] Summary of provisional damages assessment [312] - [313] Application of s 151Z of the Workers' Compensation Act 1987 [314] Costs [315] Interim orders [316]

Nature of case

At about 3.30am on Wednesday 24 May 2006, the plaintiff, Mr Barry Parrish, a Sergeant of police, incurred physical and psychological injuries in the course of his official duties when he attended the scene of a traffic incident, where a table-top truck had become jammed up against a safety guardrail at the northern exit of the Hume Highway, about 2kms south of Bargo, NSW.
In the course of carrying out his duties at the scene of that incident, the plaintiff was injured in a subsequent and horrifying motor vehicle accident that was caused by the admitted negligence of the first defendant, Olympic Roadways Pty Ltd, the owner of the Double-B articulated semi-trailer vehicle at fault, and Mr Rodney Broome, the second defendant, the driver at fault.
The provisions of the Motor Accidents Compensation Act 1999 (the "MAC Act"), the Civil Liability Act 2002 (the "CL Act"), and the Workers' Compensation Act 1987 (the "WC Act"), apply to these proceedings, in which the plaintiff claims compensatory damages in relation to the above events.

Issues

The issues calling for decision in these proceedings concern the determination of factual questions as to the particular identification of the extent of the plaintiff's injuries, the extent and the relevant cause or causes of his ongoing disabilities, and the consequential assessment of the plaintiff's entitlement to damages that flow from those matters.
The identification and resolution of those particular matters is required because of an argument advanced on behalf of the defendants that some significant aspects of the plaintiff's injuries, and some of his disabilities, are not related to the subject accident, but are instead due to some earlier and later incidents that arose in the course of his work as a police officer. The defendants therefore contended that there were no significant physical injuries occasioned to the plaintiff as a result of the subject accident: MFI "4", par 11. For the reasons that will be made plain, I have not accepted that submission.
The determination of those matters is not only relevant to the assessment of damages, but the additional relevance is the way in which s 151Z of the WC Act should be applied to the plaintiff's damages assessment: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492.
In contrast to the defendants' arguments summarised at paragraph [5] above, the plaintiff's case is that the subject accident was the materially contributing cause of his physical problems because the subject accident relevantly aggravated, and rendered symptomatic, some underlying physical conditions that did not otherwise interfere with his ability to work as a police officer.
The unresolved state of those issues has resulted in a wide disparity between the respective damages submissions of the parties. The plaintiff's schedule of damages which incorporated detailed calculations on each head of damage, totalled $3,367,197.37, not including the reimbursement of tax paid on weekly workers' compensation payments and out-of-pocket expenses: MFI "1". In contrast the defendants' damages schedule based on a different set of assumptions, amounted to $200,000 plus out-of-pocket expenses in an amount that is dependent upon findings of fact to be made in these proceedings concerning injury and the cause of disability: MFI "2". The defendants' alternative position was that if all of the plaintiff's claimed injuries were accident-related, that sum would rise to $300,000: T166.23.
In determining those factual matters, and in determining the ultimate cause of the plaintiff's post-accident discharge from the Police Force on medical grounds, and the related matter of assessment of damages, it becomes necessary to evaluate the salient details of the plaintiff's past history of injury as a serving police officer in respect of the periods both before and after the subject accident, and to consider extensive medical records and related opinions for that purpose.
The context of those cited arguments is that it is uncontroversial, and well recognised, that police officers, in carrying out their work, become foreseeably exposed to situations that may cause them to suffer physical and psychological injuries when confronted by various circumstances, which include violence, horror, death and destruction. It is also well recognised that as a result, police officers may incur consequential psychological illnesses, including post-traumatic stress disorder (PTSD): New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021, at [135] - [137].
The plaintiff, who in the opinion of his colleagues, was a well-respected and capable police officer, characterised as "a gentle giant" (Exhibit "1", Tab 7, p 41), was diagnosed with PTSD after the subject accident. That diagnosis led to his discharge from the NSW Police Force.
The defendants have pointed to an apparent or argued delay in diagnosis and treatment of that condition, and seek to resist the claim that the plaintiff's PTSD condition, and some of his claimed disabilities, are due to the subject accident.
It is therefore necessary to evaluate the detail of the medical evidence, which is to the effect that the plaintiff's past trauma exposures had primed him and had predisposed him to developing PTSD in the circumstances of the subject accident. The psychiatric evidence to that effect remained unchallenged.

Evidence overview

The plaintiff and his wife, Mrs Karen Parrish gave oral evidence, as did the plaintiff's treating orthopaedic surgeon, Dr Arash Nabavi-Tabrizi. The remainder of the evidence tendered in the plaintiff's case consisted of medical reports, medical records and documents relating to the assessment of damages.
The defendants called no oral evidence to support the causation issues and arguments raised by the defence. The defendants also tendered voluminous medical reports and related records, not all of which became the subject of submissions. The combined medical records, reports and materials comprising almost two thousand pages, will be analysed and referred to where it becomes relevant to do so.

Legal principles to be applied to the issues

In light of the fact that the plaintiff was working as an on duty police officer at the time of his injury, and had obviously been assessed by his employer as being fit to do so, the legal principle for the assessment of damages to be applied in this case, subject to the requirements of s 5D of the CL Act, is that although the plaintiff's prior work and injury history may have rendered him vulnerable to further injury by the occurrence of supervening events, a tortfeasor, here the present defendants, must take the plaintiff as he is found, including with any underlying pre-disposition to incur further or aggravating injuries: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; Bourhill v Young [1943] AC 92, at pp 109 - 110; Dulieu v White [1901] 2 KB 669, at 679; Smith v Leech Brain & Co Ltd [1962] 2 QB 405, at p 414.
In circumstances where the plaintiff must be taken as he is found, if the defendants seek a finding that the plaintiff's disabilities are due to either underlying or supervening causes that are not accident-related, the defendants must discharge the evidentiary burden of disentangling the detail of the evidence on such matters to support that contention: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4].
That principle must be applied in conjunction with the provisions of s 5D and s 5E of the CL Act, which require that the plaintiff must prove his loss: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462, at [134]; Glen v Sullivan [2015] NSWCA 191, at [43] - [47].
Those principles must also be applied against the background of what would most likely have been the plaintiff's situation if the accident had not occurred, applying the principle in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201, at [58] - [74]. That analysis requires taking into account the possibility that the plaintiff may have suffered some disability from an underlying condition, or a number of conditions, in any event: Chappel v Hart [1998] HCA 55; 195 CLR 232, at [16].

Facts not in dispute

When the plaintiff gave his evidence, he repeatedly found the task of attempting to recount some of the factual circumstances of the accident, and related matters, very distressing and upsetting to him: T14.41; T16.35; T56.50. That observation was consistent with the undisputed expert psychiatric observation made of the plaintiff in the clinical setting: Exhibit "B", Tab 11, p 179. The plaintiff's distress at the hearing was palpable: T169.11 - T169.13.
The following account of the underlying events, and their aftermath and impact on the plaintiff, is largely undisputed, and is distilled from the evidence of the plaintiff and that of Mrs Parrish.
In the early hours of the morning on the day in question, the plaintiff and another police officer had been called out to attend the earlier described road traffic incident. The truck in question had become positioned in such a way that a portion of about a metre of the back of the tray-top truck had encroached into the kerbside lane of the northbound lane of the Highway.
When the plaintiff and his colleague arrived the scene, he parked his police vehicle, a sedan, at the rear of that truck, in order to render assistance, and to implement any necessary traffic control measures. This included activation of the flashing blue and red strobe lighting, and the merge to the right indicator sign located on the police vehicle, so as to direct any other northbound traffic that might come upon the scene: Exhibit "C", Tab 2, p 7. Both he and a colleague then alighted from the police vehicle in order to make an assessment of the situation, and to take control of the scene.
It seems that the plaintiff had ascertained from the driver of that truck that his vehicle had veered off the road and had driven into collision with a roadside safety railing whilst he was taking a telephone call from a family member: T14.38. The location in which the truck was jammed against the safety guardrail was in a relatively open area off to the side of the expressway: T16.3.
On his arrival at the scene, the plaintiff's assessment was that, for reasons of safety, he needed to summon to the scene from nearby Bowral, another police vehicle variously described in the evidence as a bull wagon, or a caged vehicle. When that other police vehicle arrived, it was strategically located at a point about 100m to the south of the truck's location in order to provide some warning or indication to other traffic to move to the right when approaching the scene.
In those events, the plaintiff was standing on the road near the truck driver and was speaking to him. He was trying to encourage or direct the truck driver to remove himself from where he was standing on the road, as he was considered to be in a position of danger as he stood there, waving a small flashlight at passing traffic: T15.40 - T15.50.
In those events, two other trucks approached the scene from the south. One of those vehicles was the defendants' Double-B articulated vehicle. It had moved to the right, as was directed by police indicator signage, and at that time, it then hit the rear of the trailer of another northbound truck in the adjacent lane. A series of traumatic events then occurred in rapid succession, as described in a police witness statement: Exhibit "C", Tab 2, par 16 - par 26.
The defendants' truck then collided with the rear of the stationary police bull wagon, which was then catapulted to some considerable airborne height. In those events, the plaintiff shouted out to the truck driver to get out of the way. Unfortunately, the truck driver was not wearing his hearing aid at that time. The airborne police wagon then landed on top of the truck driver whilst he remained standing on the road near the plaintiff. The defendants' truck then continued moving forward, colliding with another semi-trailer, after it had crossed the path of where the plaintiff and his colleague had been standing, and it then crashed into nearby roadside bushes: T16.5 - T16.31. Fortunately, the other police officers at the scene had managed to jump out of the way of that truck and into the bushes, thus avoiding injury.
Unfortunately, in those described events, the driver of the stationary truck was killed. The plaintiff and his colleague almost suffered the same fate. However, due to quick reaction on the plaintiff's part, he had managed to avoid being struck by the defendants' truck. He did so by taking what he described as a "massive" dive, also described as a leap, to his left, thus managing to get out of the way of the defendants' rapidly approaching semi-trailer: T17.1 - T17.35. In those circumstances, the plaintiff had avoided death by a matter of centimetres: Exhibit "C", Tab 3, p 15, par 10.
In the course of that avoiding manoeuvre, the plaintiff forcefully landed flat, and face down, on both knees. At that time, his chest came into contact with the gravel and rock road surface. He had landed some 3 metres away from where he had commenced his avoidance manoeuvre. This suggests that he had either slid or rolled over on the hard surface for part of that distance. In those events, he also "kicked" or arched his head backwards, then jumped up and screamed for help.
I infer from the plaintiff's description that various parts of his body had made forceful contact with the road surface due to the suddenness of the described dive or leap, propelled by the urgency of his need to quickly get out of the way of that fast moving vehicle. Given those dramatic and distressing circumstances, it is unsurprising that the plaintiff sustained multiple soft tissue injuries from those jolting actions. It is also unsurprising that in those circumstances, the plaintiff did not precisely catalogue or record his injuries.
In those events, the plaintiff felt pain in his knees and in his whole body. The plaintiff said that he also hurt his lower back at that time because he was wearing his police appointments belt with the required heavy attachments, which were estimated to weigh some 7 - 9 kgs: T49.26 - T49.42.
The plaintiff described his ensuing actions, which I interpret to indicate that he had proceeded to place his police duties ahead of his own injury-related needs. This involved him in first checking on the condition of the truck driver who was laying on the road. The plaintiff then ascertained that the truck driver was deceased.
The plaintiff then proceeded to take steps to preserve the integrity of the scene for the anticipated arrival of accident investigators. For that purpose, he remained at the scene of that trauma for about 3 hours, which plainly was a prolonged exposure to upsetting circumstances: T18.44. Other police officers in attendance were described as also being in a state of shock at the described events.
Thereafter, although the plaintiff was due to finish his shift of duty at 2.00pm that day, his superior officer directed him to take time off for the remainder of his shift: T18.15 - T19.1. It is plain from other evidence that the plaintiff has understated the traumatic nature, for him, of those events.
The plaintiff's actions at the scene resulted in him receiving a formal police Command commendation, which referred to the circumstances of the accident as "the carnage", and concluded in the following terms: "Sergeant Barry PARRISH is commended for his professionalism in remaining alert as his actions without doubt saved the lives of the police and tow truck operator. Secondly he should be commended for the leadership exhibited immediately after the collision and pending the arrival of other police and emergency service personnel as his actions averted further life threatening collisions." [Exhibit "C", Tab 4, p 17]
The plaintiff's wife, Mrs Karen Parrish, saw something of the aftermath of the described accident whilst watching a portion of a televised news programme on the day in question. At that time, she had not initially appreciated from viewing that broadcast, that the plaintiff was one of the attending police officers at the scene. However, she soon recognised the images shown of the plaintiff and she observed him to uncharacteristically breakdown emotionally: T71.3 - T71.18; Exhibit "D", Tab "Accident Details".
That footage, which I have viewed, at one point shows the plaintiff to be in what I interpret as being a distraught and despairing state, crying, and being comforted and supported by another police officer.
The damage to the vehicles, as is evident in that footage, and which is also evident from a contemporaneous statement prepared by another police officer who was also in attendance with the plaintiff, indicates that the series of collisions in the accident that occurred near where the plaintiff was located were most likely accompanied by the close proximity of a series of horrendous noises from crushing metal with widespread debris strewn around the site: Exhibit "B", Tab 5, p 45. It is very likely that these circumstances also formed part of the plaintiff's traumatic experience at the time.
Later that day, when the plaintiff was at home, Mrs Parrish observed him to be withdrawn, crying, uncommunicative, and unable to sleep at all that night: T71.13 - T71.22. She described him as being "broken …[and]… he really hasn't mended properly": T71.5. I accept that unchallenged evidence.
A statement provided by one of the plaintiff's work colleagues who had worked with him over the course of 10 years, and who was also at the scene of the subject accident, described the pronounced change in the plaintiff's mood and demeanour since that accident, describing him as a different man.
The evidence of that police officer supports Mrs Parrish's assessment of the post-accident change in the plaintiff. That officer had encouraged the plaintiff to see a psychologist. The plaintiff said that he had delayed doing so because he was preoccupied with his physical injuries: Exhibit "C", Tab 3, pp 15 - 16.
The accident circumstances have had significantly adverse physical and mental impacts upon the plaintiff. He recalls those unfortunate events on a daily basis. He experiences constant nightmares about those events. These commenced ever since the first night that followed the events. He has also experienced significant personal and professional guilt over the death of the truck driver, in that he blames himself for not having been able to protect him, and he has thoughts that he should have or could have done better at the time, such as by grabbing the truck driver to pull him out of harm's way: T20.5 - T20.12.
Those circumstances led the plaintiff to seek out the widow of the deceased truck driver to apologise to her: T44.50 - T45.4. Whilst this may have helped him to come to terms with the events at that time, his pervading feelings of guilt have not lessened over the course of time. He thinks that by his actions, he had failed in his duty to the deceased truck driver: T20.7 - T20.17. The expert medical evidence refers to this as survivor guilt.
As a consequence, the events in question still continue to adversely and intrusively resonate in the plaintiff's thoughts, and in his nightmares, which are ongoing on a frequent basis, about three to four times per week.
In light of those matters it is unsurprising that after the plaintiff was examined by an independent medical practitioner at the request of the NSW Police Force, he was found to be permanently unfit to continue serving as a police officer, and was medically discharged from the service on 7 February 2011 with effect from 17 February 2011: Exhibit "C", Tabs 6 and 7, pp 18 - 19; Exhibit "D", Tab 35, p 69.
Before the plaintiff's retirement on medical grounds, an extensive "Pre-Liability Assessment" of his psychological injury was undertaken by a consultant psychologist, Ms Clair Baker, in which interviews were not only conducted with the plaintiff, but also with his colleagues, the Local Area Command Manager, and with the plaintiff's treating general practitioner: Exhibit "C", Tab 7, pp 20 - 50.
One of the focal points of that assessment was the consideration of the relationship between the subject accident and the plaintiff's emergent claim of psychological injury.
That pre-liability assessment report makes it plain that in October 2006, an external rehabilitation provider had identified the fact that the plaintiff was suffering psychological trauma. The relevance of that fact is that it tends to rebut the suggestion made by the defendants that the plaintiff's psychological condition did not emerge until 2010. It is also relevant to observe that the plaintiff's PTSD was first formally identified 3 weeks after the accident, on 16 June 2006, at Campbelltown Hospital: Exhibit "1", pp 254 - 256. Notwithstanding that October 2006 observation, no further treatment had been provided for that psychological condition at that stage because, at that time, his physical injuries had been an ongoing issue for him, since May 2006: Exhibit "1", Tab 7, p 31, par 11; p 33; p 40.
Although the plaintiff did not seek formal psychological treatment until January 2010, the assessing psychologist nevertheless considered that the longstanding nature of the plaintiff's trauma presentation, and his exposure to the subject incident which involved a near-death experience for him, has been a major causative factor pertaining to his distress: Exhibit "C", Tab 7, pp 40, 41, 43.
That psychological assessment also considered the fact that the plaintiff has undergone multiple surgical procedures since the subject accident. The assessment was that the plaintiff's ongoing medical issues of a physical nature were not considered to be a major causative factor for the onset of the plaintiff's psychological distress, but rather, it was considered that they have served to exacerbate that distress: Exhibit "C", Tab 7, p 41. In that regard, it is noteworthy that the plaintiff has undergone various forms of surgically invasive procedures on 19 separate occasions since the subject accident.
The defendants dispute the relationship between the accident and some of those surgeries. It is for that reason that a detailed factual survey of the plaintiff's injury and the context of the treatment history is required in this case before findings on matters of injury and disability can be identified.

Approach to analysis of the medical evidence

The defendants argued that the details of the plaintiff's lengthy pre-accident history of injuries and disabilities, as well as the effects of some arguably relevant post-accident incidents, should operate to limit the assessment of the plaintiff's damages. The defendants raised disputes as to some of the details of the medical evidence, including in relation to the plaintiff's previous history of injury. Some medical experts commented upon that history, and therefore, those comments require analysis.
In respect of the plaintiff's physical injuries and the related disabilities, my analysis will be guided by the factual evidence of the plaintiff, and the reasoning set out in the medical reports on such matters, as also explained in the oral evidence of Dr Nabavi-Tabrizi.
There is no dispute that the plaintiff suffers from PTSD. The origins and the extent of the plaintiff's psychological problems requires detailed analysis of expert medical reports obtained from a number of consultant psychiatrists who have assessed the plaintiff, either as expert witnesses, or as in one instance, a MAS Medical Assessor.
Where the authors of expert medical reports are not called to give explanatory evidence on issues in dispute, the reports tendered in evidence must be analysed according to the persuasiveness of their content and the underlying reasoning for the conclusions stated in those reports. The task of reconciling disputed matters of expert opinion is well-recognised as being a more burdensome exercise where the opinion givers are not called or required to give oral evidence: Cupac v Cannone [2015] NSWCA 114, at [17] - [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] - [22].
That position has less application in the case of MAS assessments as the Assessors are not considered to be expert witnesses as they are not compellable to give evidence.
Where the rational basis for expert evidence is either absent, or inadequately provided, the matters in dispute must be determined according to the onus of proof on any particular issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]; s 5D of the CL Act.
A significant element of the process by which the analysis of such conflicting medical evidence is guided, is the degree to which the expert opinions relevantly comply with, or fail to comply with, the requirements of UCPR r 31.27(1)(c) and UCPR Sch 7 cl 5(1)(c) when determining which aspects of that evidence should be either accepted or rejected: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [86], [87] ; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
These are matters that must be wrestled with or grappled with in the course of the required analysis: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, at [53]; Coote v Kelly [2013] NSWCA 357, at [39] following Waterways Authority v Fitzgibbon [2005] HCA 57, at [129] - [130].
In those circumstances the required consideration must be undertaken as best as can be achieved, notwithstanding such difficulties or limitations: Cupac v Cannone [2015] NSWCA 114; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] - [22]; Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [148].
In the required consideration of factual matters, where there is an absence of rational explanation within the expert evidence, some factual matters calling for decision may at times be resolved by applying a commonsense analysis: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, at pp 563 - 564 and p 569.

Credibility and reliability of testimony

No substantive issues arose concerning the credibility or the reliability of testimony of any of the witnesses called to give oral evidence.
However, the defendants challenged the plaintiff's evidence with the suggestion that although he had been medically discharged from the police force in 2011, he was nevertheless capable of doing other work. The suggestion was that, as he had done many years earlier, he could perform the work of a toll collector, which the plaintiff noted, was now an obsolete position: T56.15 - T56.34. The defendants also suggested to the plaintiff, in general and non-specific terms, that he was physically capable of carrying out household chores.
The plaintiff denied each of those suggestions with adequate supporting reasons: T59.31 - T59.36; T60.27 - T60.47; T61.1 - T61.5. I have accepted the reasonableness and the aptness of those denials.
I found both the plaintiff and Mrs Parrish to be credible and reliable witnesses. I entirely accept their evidence. There were no challenges of significance made to the expert evidence of his treating orthopaedic surgeon, Dr Nabavi-Tabrizi.
The defendants sought, in a limited way, to explore a number of matters in the evidence of the plaintiff. These were: the plaintiff's history of previous injury and his history of exposure to trauma as a police officer (T40.40 - T41.10; T42.28 - T43.8; T51.32); some past tensions in his life during 2004 and 2005 (T43.33); his history of prior surgical treatment for previous injuries (T43.45 - T44.3); his apparent delay in seeking treatment for his accident-related psychological problems (T45.7); and in relation to his neck problems (T47.48); his return to police duties for a time (T45.32); some of his post-accident medical issues (T46.47 - T47.2); his surgical history (T47.20; T48.10; T51.12), some further injuries sustained in the line of duty after returning to work post-accident (T48.25 - T48.47); and the reasons for his retirement from the police force on medical grounds: T51.45 - T55.41.
In my assessment, the plaintiff's evidence concerning those matters, did not raise any doubts as to the veracity of his evidence, nor did it detract from the consistency or the reliability of his evidence.
I accept that the plaintiff gave truthful accounts of his accident-related problems when he provided histories to the various practitioners who examined him. Accordingly, in addition to drawing upon his oral evidence, I consider it appropriate to draw upon the historical reports of those practitioners as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]-[143]; s 60 of the Evidence Act 1995.

Findings on other relevant matters of fact

I now turn to my findings of fact on other relevant matters. Unless otherwise qualified, in the following paragraphs, I set out my findings of fact concerning: (1) the plaintiff's background circumstances; (2) a summary of his pre-accident health and injury history; (3) the post-accident medical treatment and reviews of the plaintiff; (4) my evaluation of the medical evidence as it relates to damages issues; (5) his injuries from the subject accident; (6) the treatment he obtained; (7) the identification of findings as to the plaintiff's remaining disabilities; (8) work effects; (9) domestic effects; (10) mitigation; and (11), the plaintiff's most likely circumstances but for the subject accident.

(1) Plaintiff's background

The plaintiff was born in 1965. At the time of the accident he was aged 41 years. At the time of the hearing he was aged 52 years. He is married with an adult daughter from his marriage, and there is another adult daughter from his wife's first marriage. Both daughters are independent.
The plaintiff's work history commenced at the age of 15 years, when he left school and worked in his father's panel beating and spray painting business. He qualified as a panel beater in 1984. He continued in that employment for a further 2 years, and then for the next 2 years, he worked as a loss prevention officer for a department store. That work led him to work in the law enforcement profession, initially with the Department of Corrective Services as a prison officer, and then, after obtaining his Higher School Certificate at TAFE in 1990, when aged 25 years, he joined the NSW Police Force, initially as a security officer.
In 1992, the plaintiff completed the police training course at the Police Academy. Thereafter he was promoted through the ranks from Probationary Constable to Leading Senior Constable Level 2, and then in September 2004, at age 39 years, he was appointed Acting Sergeant and then Sergeant at the Campbelltown Local Area Command. At various times he also acted in the role of Inspector. At the time of the accident, he was pursuing a course of study for promotion to that role: T83.26 - T83.31.
Along that timeline, the plaintiff had undertaken work duties in the Police Dog Unit, he had completed qualifying courses in incident and emergency management, and as a firefighter. In May 2004, the plaintiff obtained police departmental approval to work as a firefighter in employment that was secondary to his primary employment as a police officer. In addition to being a dedicated police officer he was a committed firefighter. The plaintiff was described as having lived and breathed the job of being a police officer: T20.43.
Mrs Parrish gave unchallenged evidence of her assessment that the plaintiff was proud to be a police officer, that he intended to work until retirement age (T65.45 - T66.5), that he wanted to remain in the police force for as long as he could possibly do so.
Before the subject accident, as foreseeably occurs in the deployment of police officers, the plaintiff had sustained a number of physical injuries in the course of carrying out his duties. In the period leading up to the subject accident, he had also experienced a number of other psychologically stressful and distressing circumstances that had confronted him in the course of having to attend to tragic and unpleasant tasks that were required of him as a matter of duty when carrying out his work as a police officer. As already observed those matters are well recognised as being an unavoidable part of police duties, with potentially damaging effects.
That said, before the subject accident on 24 May 2006, I infer from the fact that the plaintiff was assigned to unrestricted duties that he had been assessed and considered by his employer as being physically and psychologically fit for work, in which he was assigned to general duties. There was no evidence that in his pre-accident work, he had any form of physical or psychological impairment that would have prevented him from carrying out his work as a police officer. It was in the course of those duties that he sustained the physical and psychological injuries that are the subject of his claim for damages in these proceedings.
In light of the causation issues raised by the defendants, before setting out my findings as to the nature and the extent of the injuries the plaintiff sustained in the subject accident on 24 May 2006, it is relevant to first identify some details of the plaintiff's pre-accident health and injury history.

(2) Previous health, injury and medical records history

As would be expected by the nature of the police work, the plaintiff's previous history of injury when hurt on duty as a police officer has been extensively documented. Some of that documentation was tendered in the evidence. As is all too common for police officers, when carrying out their duties, and as part of such duties, they place themselves at risk of injury on a daily basis in a variety of foreseeable circumstances. The plaintiff's work as a police officer was no exception in that regard.
In light of the guiding principles identified at paragraph [16] above, it is both relevant and necessary to undertake a factual survey of the plaintiff's pre-accident history of exposure to psychological trauma, and also his experience of physical injury.
The plaintiff's past history of exposure to distressing and traumatic events that predated the subsequent accident, and which related to his work as a general duties police officer, is summarised as follows 1. The Thredbo land subsidence disaster, which was widely known to have involved death, injury, and the destruction of property; 2. A house fire where he was first on the scene, where he found a number of dead and burnt children; 3. The drowning of a 5 year old child; 4. A murder suicide involving a father who had kidnapped his children and killed them in gruesomely horrific circumstances; 5. A short period of historical stress due to some interpersonal difficulties that had arisen between himself and a supervisor, whom he felt had treated him unfairly. That issue resolved when that supervisor moved on quickly to another location.
As was observed in an unchallenged report of a psychiatric evaluation of the plaintiff, he had experienced situational stress from the above events, and the content of those events have to a degree remained as triggers for him, such as smells, that continue to trouble him in the form of intrusive phenomena that he continues to experience, particularly relating to those involving grotesque and traumatic deaths of children. Although each of those events may have led to brief psychological sequelae, none of those events have led to any chronic debilitating psychological sequelae for the plaintiff until the time of the subject motor vehicle accident: Exhibit "B", Tab 11, p 181.
In addition to the above events of a psychological nature, the plaintiff's pre-accident health records reveal the following history of physical injury and some other sources of stress: 1. On 19 June 1992, whilst a student police officer, the plaintiff fractured a rib during a police football match: Exhibit "1", p 184; 2. On 6 August 1992, whilst a student police officer, the plaintiff sustained abrasions to his left hand, both knees, bruising and shock when he was in a motor vehicle that collided with a tree: Exhibit "1", pp 185 - 186; 3. On 1 January 1994, the plaintiff sustained a strained knee when, whilst on duty as a police officer, he attended a brawl. At Campbelltown Hospital a painful left knee was identified, he had pain in the right cheek from being punched, and an injury to the medial side of the right arm was also identified: Exhibit "1", pp 187 - 188; 4. On 18 February 1994, Dr Peter Giblin, an orthopaedic surgeon, carried out an arthroscopy of the plaintiff's right knee which found a loose chondral body and some minor early arthritis on the medial side of that knee and mild chondromalacia of the patella: Exhibit "1", p 190; 5. On 8 April 1995, the plaintiff injured his left shoulder in the course of arresting a violent offender. This resulted in a left shoulder reconstruction that was later carried out by Dr Giblin, and he was certified as being unfit for work between 17 June 1996 and 27 August 1996: Exhibit "1", p 191; 6. On 4 April 1996, Dr Giblin saw the plaintiff for soreness to both shoulders, and an MRI scan was ordered to better define the problem: Exhibit "1", p 192; 7. On 25 June 1996, the plaintiff underwent surgical decompression of the left shoulder and excision of the distal clavicle at Bigge Street Private Hospital under the care of Dr Giblin: Exhibit "1", p 194; 8. On 10 January 1997, the plaintiff presented to Campbelltown Hospital Emergency Department with pain and swelling to the left shoulder: Exhibit "1", p 195; 9. On 29 November 1997, the plaintiff sustained a fracture of his left thumb during the arrest of a violent offender, and for a limited time, he was assigned to restricted duties: Exhibit "1", pp 196 - 198; 10. On 13 April 1998, the plaintiff suffered an injury to his left shoulder, left leg and shin, and to the right side of his forehead during the arrest of several offenders during an incident involving violent disorder: Exhibit "1", p 199; 11. On 12 August 1998, the plaintiff was referred to a police psychologist to assess his ability to manage anger. This step was taken in light of a complaint made against him that was ultimately not sustained. The psychologist considered the plaintiff had no evidence of psychopathology, and it was considered that he did not have an anger management problem. He was assessed as being fit to perform full police duties: Exhibit "1", pp 200 - 201; 12. On 9 September 1999, the plaintiff injured his right knee whilst arresting and restraining an offender: Exhibit "1", pp 205 - 206; 13. On 4 April 2000, the plaintiff developed soreness and swelling to both knees whilst undertaking a simulated search of a bulkhead area whilst crawling in a confined space: Exhibit "1", p 207; 14. On 2 July 2000, the plaintiff sustained bruising to his right abdominal muscles after jumping over a fence and gate in the course of his policing duties. At that time, he was certified unfit until 22 July 2000: Exhibit "1", p 208; 15. On 16 July 2000, the plaintiff was admitted to Campbelltown Hospital Emergency Department after he experienced a choking episode, breathing difficulty, and an associated 60 second period of loss of consciousness. Neurological examination was suggested. The consultant Accident and Emergency doctor recorded the impression that the plaintiff had suffered a coughing fit which led to a vasovagal event, and therefore, a possible hypoxic event: Exhibit "1", pp 210 - 211; 16. On 13 October 2000, the plaintiff suffered aggravation discomfort to his left and right shoulders whilst controlling two police dogs on dog squad duties: Exhibit "1", pp 212 and 216; 17. On 9 June 2001, Dr Giblin carried out a right shoulder decompression procedure on the plaintiff at Sydney South West Private Hospital: Exhibit "1", p 217; 18. On 30 September 2001, the plaintiff suffered swelling and bruising to both arms, the chest, and a laceration to the ear whilst arresting an offender at a brawl in a car park: Exhibit "1", p 218; 19. On 21 March 2002, the plaintiff suffered a twisted left knee whilst carrying out an arrest: Exhibit "1", p 220; 20. On 23 March 2002, the plaintiff presented to the Camden Hospital Emergency Department following an assault upon him by a prisoner, during which the plaintiff was kicked in the face by his barefooted assailant: Exhibit "1", p 219; 21. On 23 November 2003, the plaintiff suffered a cervical injury. He had hurt his neck whilst wrestling to control some persons who had been fighting: Exhibit "1", p 132; pp 221 - 222; 22. On 1 December 2003, the plaintiff sustained bruising to his hips from wearing the utility pouches on his appointments belt, which resulted in him having some soreness to his lower back: Exhibit "1", p 223; 23. On 27 February 2004, the plaintiff sustained injuries comprising a bruised left rib with associated swelling, and injuries to his right eye, shoulder, arm and a knee. These injuries occurred when he was arresting a violent offender: Exhibit "1", p 225; 24. On 6 May 2004, the plaintiff underwent spirometry or lung capacity tests for an unspecified reason: Exhibit "1", p 224; 25. On 10 May 2004, the plaintiff underwent repeat spirometry tests for an unspecified reason: Exhibit "1", p 224; 26. On 11 October 2004, the plaintiff suffered a laceration to his right shin when he ran into contact with a water meter: Exhibit "1", p 227; 27. On 20 December 2004, the plaintiff was seen by a police doctor for aggravation of his left shoulder, with a history of pain in that region for the previous 2 months: Exhibit "1", p 224; 28. On an unspecified date, possibly in May 2005 (the record is difficult to interpret) the plaintiff received work-related stress counselling: Exhibit "1", p 224; 29. On 26 January 2005, the records of the New South Wales Fire Brigade noted the plaintiff was going through a difficult and stressful family situation: Exhibit "1", p 231; 30. On 11 February 2005, the plaintiff presented to the Camden Hospital Emergency Department complaining of a painful right hand following an injury when a door struck his hand two days earlier: Exhibit "1", p 228; 31. On 26 February 2005, the plaintiff presented to the Camden Hospital Emergency Department complaining of a painful right hand and elbow, and an abrasion to the chin after an assault upon him: Exhibit "1", pp 229 - 230; 32. On 1 March 2005, the plaintiff attended the Camden Hospital Emergency Department for a follow-up review of the previous injuries to his right hand and right elbow: Exhibit "1", pp 232 - 233; 33. On 13 August 2005, the plaintiff sustained a heavy fall on his left and right knees during the foot pursuit of an offender: Exhibit "1", pp 244 - 245; 34. On 29 September 2005, the police records noted that the plaintiff appeared, whilst on a period of 2 weeks stress leave, to be upset and agitated about the time that was being taken over the completion of some internal affairs investigations in relation to him, and he indicated he would be seeking independent counselling and in those events, the plaintiff complained of a lack of faith in police support in relation to those matters, and the consequential stressful work environment: Exhibit "1", pp 235 - 244; 35. On 30 November 2005, the plaintiff underwent a knee arthroscopy that was carried out by a Dr Dave at the Macarthur Private Hospital: Exhibit "1", p 246; 36. On 14 May 2006, the plaintiff presented at the Camden Hospital Emergency Department for treatment of a laceration and some small puncture wounds to the pulp of his right middle finger that had been injured on barbed wire: Exhibit "1", pp 251 - 252;
No cross-examination of substance was directed to the detail of the matters outlined above to suggest that prior to the subject accident, the plaintiff was in any way restricted by any underlying work incapacity, on either physical or psychological grounds.
In those circumstances, I infer that those multiple instances of exposure to psychological trauma, or physical injury, as identified in the series of sub-paragraphs of paragraphs [81] and [83] above, either individually or collectively, did not adversely affect the plaintiff's fitness to continue in his work as a police officer at the time of his injury. If the position was otherwise, it would have been unlikely that the plaintiff would have been permitted to continue working in full and unrestricted police duties at the time of the subject accident.
That said, I accept that the nature of the plaintiff's documented prior physical injuries suggest that he may well have been made vulnerable to further aggravating injuries in those affected areas if he were to sustain further physical injuries in those areas.
The unchallenged psychiatric opinion was that the plaintiff was someone who, by reason of his exposure to the described prior incidents that were productive of distress or psychological trauma, was highly vulnerable to the development of a PTSD, and as such, he was primed for the development of that disorder in the course of his work, with the potential that, if this occurred, it may lead him to psychologically decompensate into a distressed and disabled state: Professor Nicholas Glozier; Exhibit "B", Tab 11, p 185.
The evidence does not reasonably permit a precise assessment to be made in percentage terms, of the likelihood or extent of such possibilities, of either aggravation occurring in respect of an underlying condition, or for psychological decompensation to occur, absent the effects of the subject accident. My assessment is that absent additional trauma, the probability of such decompensation occurring was very low: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643.
In view of the dispute as to the nature and the extent of the injuries the plaintiff sustained in the subject accident, I consider it necessary to review the entire fabric of the medical and allied evidence to identify salient factual features within that body of evidence before making definitive factual findings which identify the plaintiff's injuries.

(3) Post-accident medical treatment and reviews

In view of the defendants' argument that the plaintiff's medical retirement from the police force was due to non-accident-related causes, it is necessary to undertake a review of the plaintiff's post-accident medical and allied attendances and treatments. Those attendances and assessments are summarised, in chronological sequence, as follows. 1. On 28 May 2006, a few days after the accident, the plaintiff first saw his general practitioner, Dr Samir Michael, about the accident. He was prescribed Temazepam tablets, 10mg, to be taken at the dose of 1 - 2 per night as directed. Dr Michael also gave the plaintiff counselling: Exhibit "1", Tab 6, p 156; Exhibit "B", p 264; 2. On 16 June 2006, at about 18:25 hours, the plaintiff was seen at Camden Hospital Emergency Department for complaints of pain in the right groin and lower abdomen. The notes recorded that the plaintiff had PTSD secondary to witnessing the accidental death of a man in a crash. The clinical notes refer to the plaintiff having jumped out of the way of a vehicle, which subsequently led to him experiencing groin pain and a diagnosis of an inguinal hernia: Exhibit "1", pp 254 - 255. Those relatively contemporaneous notes, made 3 weeks after the accident, serve to rebut the defendants' suggestion that the plaintiff had delayed making a complaint about the psychological effects of the accident. It is doubtful that such a detailed history of the accident would have been taken at that time if there were no evident psychological symptoms in the plaintiff's presentation. The reference to PTSD suggests there had been a sudden onset of such symptoms from the time of the accident, continuing until the time that note was made: Exhibit "1", pp 254 - 256; 3. On 22 June 2006, the plaintiff was examined by Dr Edwin Lim, who assessed the plaintiff's right inguinal hernia and advised the workers' compensation insurer that this was a work related injury: Exhibit "B", Tab 15, p 313; 4. On 27 June 2006, Dr Lim repaired the plaintiff's right inguinal hernia. He removed the surgical sutures on 6 July 2006 and he arranged for a review of the plaintiff on 28 August, 2006: Exhibit "B", Tab 16, p 314; 5. On 6 July 2006, which was five weeks post-accident, the plaintiff was referred to a rehabilitation consultant for "Hernia and Psychological Trauma". At that time he was assessed as being totally unfit for work: Exhibit "1", p 267; 6. On 10 July 2006, Dr Lim wrote to Allianz Workers Compensation Division to report on the result of right inguinal hernia repair that he carried out on 27 June 2006: Exhibit "B", Tab 16, p 314. He advised the hernia repair had been carried out on 27 June 2006, without complications; 7. On 31 July 2006, Dr Lim reviewed the plaintiff again after the inguinal hernia repair, and he noted that the plaintiff's residual left groin pain was probably due to adductor tendonitis and left knee pain: Exhibit "1", p 257; 8. On 31 July 2006, Dr Lim wrote to Dr Nabavi-Tabrizi (Exhibit "B", Tab 17, p 315) about seeking an opinion on the management of the plaintiff's groin pain from probable adductor tendonitis and his left knee problems: Exhibit "B", Tab 17, p 315. Dr Lim considered that the plaintiff's complaints of left knee and left groin pain were preventing him from returning to work. He considered the left groin pain to probably be due to adductor tendonitis. As a result, he referred the plaintiff to Dr Nabavi-Tabrizi for further opinion and management of these problems; 9. On 1 August 2006, the plaintiff consulted Dr Nabavi-Tabrizi for left hip pain due to impingement pain of adductor origin, and a probable labral tear, as well as left knee pain, which continued after arthroscopy for a meniscal tear and chondromalacia behind the patella: Exhibit "1", pp 260 - 262; 10. On 11 August 2006, Dr Nabavi-Tabrizi reported that an MRI scan showed adductor tendonitis and tendinosis of the associated tendons (of the plaintiff's left hip) and a small tear of the gluteus minimus muscle, with complex symptomatology, for which local anaesthetic and steroid injections were planned: Exhibit "1", p 262; 11. On 1 September 2006, Dr Nabavi-Tabrizi reviewed the plaintiff post-injection of the injured tendon and hip muscles and suggested a review in 6 weeks: Exhibit "1", p 263; 12. On 12 September 2006, Dr Nabavi-Tabrizi noted the plaintiff had only obtained temporary relief from the injections to the left hip. He suggested surgical exploration and repair: Exhibit "1", p 264; 13. On 29 September 2006, Dr Nabavi-Tabrizi performed left hip arthroscopy, an open release of the adductor tendon and an open release of the IT Band of the plaintiff's left hip. Weight bearing with crutches and physiotherapy was recommended: Exhibit "1", pp 265 - 266; 14. On 18 October 2006, which was about 20 weeks post-accident, Ms Littlejohn, a rehabilitation counsellor, noted the plaintiff had seen a psychologist and was talking to the Police Chaplain, but was receiving no other active counselling: Exhibit "1", pp 268 - 269; 15. On 18 December 2006, the plaintiff attended Macarthur Health Service with a painful left elbow, tendonitis and a puncture wound to his left forearm after moving some furniture a week earlier: Exhibit "1", pp 264 - 265 and pp 271 - 272; 16. On 2 January 2007, Dr Nabavi-Tabrizi noted the plaintiff was coping with 4 hours per day of office duties: Exhibit "1", p 273; 17. On 20 February 2007, Dr Nabavi-Tabrizi reviewed the plaintiff and noted he had done well, and was running 1km per day: Exhibit "1", p 275; 18. On 28 March 2007, Ms Virginia Littlejohn, a physiotherapist and rehabilitation consultant, noted the plaintiff had a second operation carried out on his left leg, and that he had returned to work on full police duties at Camden Police Station. She obtained the agreement of the Camden Police Local Area Command, a representative of the NSW Force, and a representative of Allianz, the workers' compensation insurer, to close the plaintiff's 24 May 2006 injury file, which listed the injuries as "Hernia and Psychological Trauma". The content of the record relates to post-operative rehabilitation, not psychological assessment or treatment. It is not apparent as to the extent, if any, that the plaintiff's psychological trauma had been assessed at that time: Exhibit "1", pp 276 - 277; 19. On 6 September 2007, the records of the plaintiff's general practitioner refer to the plaintiff having supra pubic symptoms in conjunction with abdominal pain and gastro-intestinal problems. There was no apparent relevance of these matters to the subject accident: Exhibit "1", p 281; 20. On 13 April 2008, the plaintiff, then in the work role of an Acting Inspector, received a punch to the head and face, and a graze to his left shin, a sore right knee and redness and pain to the neck, which he sustained in the course of arresting two violent offenders: Exhibit "1", pp 278 - 280; 21. On 14 April 2008, the plaintiff saw his general practitioner for "knee pain": Exhibit "1", p 281; 22. On 6 June 2008, Dr Nabavi-Tabrizi noted the plaintiff was complaining of increasing right knee pain which was injured at the same time as he had the hip injury. MRI screening showed unstable Grade III flaps in the right patella: Exhibit "1", p 282; 23. On 27 June 2008, Dr Nabavi-Tabrizi performed a right knee arthroscopy and chondroplasty procedure on the plaintiff's patella-femoral joint: Exhibit "1", pp 283 - 284; 24. On 5 August 2008, Dr Nabavi-Tabrizi noted that 6 weeks post-operatively, the plaintiff still had significant anterior knee pain with a click: Exhibit "1", p 285; 25. On 18 September 2008, the plaintiff filled out a recurrence of injury form which stated that there was wear and tear and deterioration of the left knee relating back to a heavy fall whilst charging an offender on 14 August 2005. Severe pain and restriction of movement were noted: Exhibit "1", pp 286 - 287; 26. On 3 October 2008, Dr Nabavi-Tabrizi carried out a left knee arthroscopy and chondroplasty, with an associated autologous chondrocyte implantation: Exhibit "1", pp 288 - 289; 27. On 14 October 2008, Dr Nabavi-Tabrizi reviewed the plaintiff 2 weeks post-operatively. At that time he planned a second stage tubercle osteotomy and implantation procedure for the left knee: Exhibit "1", p 290; 28. On 30 October 2008, Dr Nabavi-Tabrizi performed a left knee autologous chondrocyte implantation procedure on the left tibial tubercle with internal fixation and he then referred the plaintiff for rehabilitation: Exhibit "1", pp 288 - 289 and pp 291 - 292; 29. On 9 December 2008, Dr Nabavi-Tabrizi reviewed the post-operative x-rays of the plaintiff's left knee which showed a united tubercle osteotomy. A lot of quadriceps wasting was noted to be present, which required rehabilitation: Exhibit "1", p 293; 30. On 20 January 2009, the plaintiff was noted to be undertaking a home physiotherapy programme to strengthen his leg muscles: Exhibit "1", p 294; 31. On 27 January 2009, Dr Nabavi-Tabrizi noted the plaintiff had been doing extremely well with his left knee, and noted that he was having a similar problem with the right knee. He suggested a return to work for a period of time "to see how both knees behave and hold up to the insults of police work": Exhibit "1", p 295; 32. On 17 February 2009, Dr Nabavi-Tabrizi noted the plaintiff's left knee was doing very well but the plaintiff was noted to be having increasing problems with his right patello-femoral joint, which he considered would require surgery similar to that which was performed on the left knee: Exhibit "1", p 296; 33. On 24 June 2009, Dr Nabavi-Tabrizi carried out a right knee arthroscopy, chondroplasty procedure with an associated autologous chondrocyte implantation: Exhibit "1", p 297; 34. On 24 July 2009, the plaintiff fell and injured his left knee whilst arresting an offender. The left knee was reported to be swollen and sore: Exhibit "1", pp 298 - 299; 35. On 7 August 2009, Dr Nabavi-Tabrizi performed a planned arthroscopy procedure on the plaintiff's right knee with chondroplasty as a first stage autologous chondrocyte transplantation harvest: Exhibit "1", p 301; 36. On 10 August 2009, the plaintiff consulted his general practitioner who noted the plaintiff had knee pain and a soft tissue injury: Exhibit "1", p 281; 37. On 9 September 2009, Dr Nabavi-Tabrizi carried out a second state chondrocyte implantation procedure on the plaintiff's right knee: Exhibit "1", pp 303 - 304; 38. On 11 March 2010, the plaintiff underwent a post-surgical MRI scan of the right knee for investigation of right medial compartment pain and to also review the previous surgical site: Exhibit "1", pp 305 - 306; 39. On 22 March 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for knee pain: Exhibit "1", p 309; 40. On 30 March 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for knee pain: Exhibit "1", p 307 and p 309; 41. On 6 April 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for neck pain. Diagnostic imaging was arranged for the plaintiff's left shoulder, neck and lumbo-sacral spine: Exhibit "1", p 309; 42. On 7 April 2010, the plaintiff sustained a back strain, and he was certified as unfit for work from that date until 4 January 2011: Exhibit "1", pp 312 - 314; 43. On 9 April 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for neck pain. A recurring problem of ongoing pain in the left shoulder was also reported at that time: Exhibit "1", p 309; pp 310 - 311 and pp 315 - 316. There is no suggestion that the subject accident relevantly aggravated the plaintiff's previous shoulder problems, which of themselves, did not affect his ability to work; 44. On 21 April 2010, Dr Nabavi-Tabrizi carried out a right knee arthroplasty, chondroplasty procedure, with drilling of the lateral femoral condyle, and removal of screws from the right and left tibiae: Exhibit "1", pp 317 - 318; 45. On 28 April 2010, the plaintiff underwent a CT of his lumbar spine which was reported as showing muscle spasm which was thought to account for loss of lumbar lordosis. Disc bulging at L4/L5 and L5/S1 was also noted: Exhibit "1", pp 322 - 323; 46. On 7 May 2010, Dr Nabavi-Tabrizi reviewed the plaintiff and noted that he was making good progress following the recent arthroscopy procedure. He noted the plaintiff's complaints of cervical pain and related upper limb pain, numbness and paraesthesia. He considered those symptoms to be radicular with possible mild rotator cuff problems. MRI of the cervical spine was suggested, along with a proposed review by a nominated spinal surgeon, Dr Darwish: Exhibit "1", p 319; 47. On 11 May 2010, the plaintiff's general practitioner certified the plaintiff to be unfit for work until 3 June 2010 on account of pre-existing left shoulder problems: Exhibit "1", p 328; 48. On 18 May 2010, the plaintiff underwent an investigatory MRI scan of his cervical spine, left shoulder, and lumbar spine. The cervical spine was noted to be of normal appearance but disc narrowing and protrusion was noted at some levels. The lumbar spine was reported to show degenerative changes and some disc bulging and degenerative facet disease. The left shoulder was reported to show minor sub-acromial bursal oedema, tendinosis, a partial tear of the articular surface of the infraspinatus tendon, and features of previous bony decompression procedure: Exhibit "1", pp 320 - 321; 49. On 24 May 2010, the plaintiff was examined by Dr Balsam Darwish, a neurosurgeon and spinal surgeon, in relation to the history of neck pain. He reviewed the MRI scans. He advised a C5/6 anterior cervical discectomy with decompression of both C6 nerve roots and a cervical fusion: Exhibit "1", pp 324 - 325; 50. On 4 June 2010, the plaintiff's general practitioner noted that the plaintiff had cervical spine problems and referred him for specialist review: Exhibit "1", p 330; 51. On 5 July 2010, Ms Clair Baker, a psychologist, interviewed Dr Michael about the plaintiff's history of psychological trauma: Exhibit "1", Tab 6, p 20; 52. On 7 July 2010, Ms Baker prepared a pre-liability report for the workers' compensation insurer after interviewing the plaintiff, his police colleagues and his general practitioner: Exhibit "1", Tab 6, pp 20 - 50; 53. On 16 July 2010, the plaintiff's general practitioner certified the plaintiff to be unfit for work between 21 July 2010 and 21 August 2010 because of PTSD, which at that time was planned to be managed by counselling: Exhibit "1", p 331; 54. On 20 July 2010, Dr Nabavi-Tabrizi reviewed the plaintiff to discuss the planned cervical fusion proposed by Dr Darwish. He deferred to Dr Darwish's expertise on that matter: Exhibit "1", p 326; 55. On 20 August 2010, the plaintiff was admitted to Campbelltown Private Hospital where a C5/6 anterior cervical discectomy and fusion was carried out by Dr Darwish. He was discharged on the following day: Exhibit "1", p 327 and p 333; 56. On 2 September 2010, the plaintiff was reviewed by Dr Darwish for post-surgical neck pain, which it was noted, was to be expected. An x-ray was ordered, with physiotherapy and medication: Exhibit "1", p 334; 57. On 1 October 2010, the plaintiff's treating general practitioner certified him as unfit to work between 4 October 2010 and 4 January 2011 on account of neck problems: Exhibit "1", p 338; 58. On 15 October 2010, the plaintiff was reviewed by Dr John Crozier, a vascular surgeon for cyanotic discolouration of the right ankle against a history of the accident, weight gain, and bilateral knee surgery. A compression stocking was recommended. Dr Crozier also recommended to the plaintiff that he stop smoking: Exhibit "1", p 335; 59. On 28 October 2010, the plaintiff was reviewed by Dr Darwish for neck pain radiating to the right shoulder, and the experience of lower back pain in the mornings. Medication was prescribed and a 6 week review was arranged: Exhibit "1", p 336; 60. On 17 November 2010, the plaintiff underwent a psychological assessment by Ms Madhu Misra, a psychologist at the St John of God Hospital at the referral of Dr Selwyn Smith. The plaintiff's history was of deteriorating mental health for a considerable period of time since 2006. The focus of that referral was the subject accident. The assessment was of significant PTSD with depression and anxiety associated with work-related traumas experienced over the past 20 years: Exhibit "1", pp 339 - 342; 61. On 24 November 2010, at the request of the NSW Police Force, the plaintiff was examined by Dr Graham George, a consultant psychiatrist: Exhibit "B", Tab 12, pp 192 - 198. Dr George reviewed the plaintiff's prior history of hurt on duty claims including shoulder injuries that resulted in a period of leave for 12 months (at pp 193 - 194), he considered the plaintiff's presenting complaints, his past psychiatric medical, family, personal and industrial history (at pp 194 - 195), and following a mental examination of the plaintiff, he set out his psychiatric diagnosis and opinion (at pp 196 - 198). He noted the plaintiff's history of inability to cope with his work as a police officer, and considered that this was directly related to the subject accident, which was a catalyst for the plaintiff's psychological condition. In essence Dr George was of the opinion that the plaintiff had chronic PTSD, major depression with anxious mood, and alcohol dependence and abuse, probably over a 4 year period, with a decreased level of functioning over that period. He considered those conditions to be the direct result of the subject accident, which he incidentally referred to as being on 23 March 2006. Nothing turns on that misdescription. Dr George considered the plaintiff to be unfit to work as an operational police officer. He also considered that if there was an attempt to assign him to such duties, there would be an "immense risk" of relapse from his current treatment programme. He considered the plaintiff was incapable of returning to work in non-operational duties. He identified his view that the plaintiff was totally and permanently disabled, and he supported the plaintiff's discharge from the NSW Police Force. He considered that a return to work by the plaintiff would be a source of reaction to most triggers in the work environment, such as police talk about traumatic incidents, briefs, viewing photographs and descriptions of events, being associated with violent people, or being subject to any form of trauma; 62. On 3 December 2010, Dr Nabavi-Tabrizi reviewed the plaintiff for continuing right knee pain, with crepitus, catching, swelling and discomfort. Dr Nabavi-Tabrizi considered nothing else could be offered to the plaintiff other than a knee replacement procedure: Exhibit "1", p 346; 63. On 25 January 2011, the plaintiff underwent MRI scans of his left shoulder and right knee at the request of Dr Nabavi-Tabrizi. A tiny partial thickness tear was seen in the shoulder, and chondral wear was noted in the knee: Exhibit "1", pp 347 - 349; 64. On 10 March 2011, Dr Darwish reviewed the plaintiff in light of the MRI findings. He explained to the plaintiff that his neck problems were muscular in nature, and there was no need for further surgery at that time: Exhibit "1", p 350; 65. On 25 March 2011, Dr Nabavi-Tabrizi reviewed the plaintiff's MRI scans. He considered that the shoulder scan did not show any significant pathology. The right knee MRI showed a complete loss of cartilage. He recommended a right patella-femoral knee joint replacement: Exhibit "1", p 351; 66. On 21 April 2011, Dr Nabavi-Tabrizi corresponded with the plaintiff's general practitioner advising that the planned right knee replacement surgery was booked for 27 April 2011. He noted that the plaintiff suffered from depression and PTSD, and continued to complain of pain in the interscapular region and paraesthesia in both hands, which he thought was most likely due to a minor bilateral carpal tunnel syndrome for which he prescribed Epilim. Weight loss and hydrotherapy were recommended. Exhibit "1", p 352; 67. On 27 April 2011, Dr Nabavi-Tabrizi carried out a patella-femoral joint replacement procedure on the plaintiff's right knee: Exhibit "1", pp 353 - 354; 68. On 28 April 2011, Ms Lisa Steele, a clinical psychologist, wrote to the Treasury Managed Fund to report on a programme of prolonged psychological treatments the plaintiff had attended for his PTSD with co-morbid major depression. That treatment had consisted of some 20 sessions to that time: Exhibit "1", Tab 7, pp 285 - 287; 69. On 2 June 2011, Dr Darwish reviewed the plaintiff, noting a history of continuing paraesthesia in his hands which had responded well to Epilim. He had normal muscular power and sensation in both hands. On 9 June 2011, Dr Darwish advised the plaintiff's general practitioner that he would discharge the plaintiff back into his care: Exhibit "1", p 355; 70. On 20 June 2011, an x-ray of the plaintiff's right knee showed the knee prosthesis was in a normal position, without evidence of loosening: Exhibit "1", p 356; 71. On 7 July 2011, Dr Selwyn Smith, a consultant psychiatrist, provided a report to the plaintiff's solicitor: Exhibit "B", Tab 9, pp 171A - 171H. Dr Smith saw the plaintiff on 15 July 2010 at the referral of Dr Michael, and on eight further occasions up to 22 June 2011. He perused the plaintiff's detailed dossier of exposure to distressing and traumatic events during his serve with the NSW Police Force. After taking a history of relevant psychological stressors and physical injuries, he noted (at p 171B), that the plaintiff has experienced heightened levels of anxiety and depression, with accompanying irritability and aggressiveness, with difficulty focussing and concentrating, and with dissociative flashbacks pertaining to his earlier exposure to distressing events. Dr Smith stated (at p 171C), that the plaintiff displayed clinical evidence of PTSD in association with depressive and anxiety symptoms, with secondary alcohol dependence. A programme of attendance for PTSD treatment was commenced but despite this, Dr Smith noted (at p 171C), that the plaintiff continued to be troubled by intrusive memories and flashback episodes, and was significantly handicapped by his orthopaedic injuries. Dr Smith identified the prognosis for recovery to be poor, and he stated (at p 171D), that maintenance and supportive treatment including appropriate pharmacology was required to assist the plaintiff to develop coping strategies for his physical and psychological impairments. Dr Smith's view was that (at p 171E), it was highly unlikely the plaintiff would reintegrate at work, and it was also highly unlikely that he would have the capacity to engage in alternative employment as he was disabled on psychiatric grounds. At that time, Dr Smith was of the opinion that from a psychiatric point of view, the plaintiff was not in need of domestic assistance, but that need was predominantly related to his physical restrictions; 72. On 5 September 2011, the plaintiff underwent an MRI scan of his left hip which showed trochanteric bursitis, and a slight irregularity of the superior labrum. The latter finding was thought to not exclude degeneration: Exhibit "1", p 360; 73. On 8 September 2011, Dr Nabavi-Tabrizi saw the plaintiff again in relation to his (left) hip pain. He considered there was evidence of femoral acetabular impingement and arranged for the plaintiff to have a trochanteric bursa steroid injection with local anaesthetic: Exhibit "1", p 361; 74. On 18 April 2012, the plaintiff underwent a left trochanteric bursal injection under ultrasound guidance, without complication: Exhibit "1", p 366; 75. On 15 May 2012, Dr Nabavi-Tabrizi reviewed the plaintiff's right knee replacement 12 months post-surgery. He considered the result to be excellent, but noted the plaintiff reported mild to moderate discomfort. He suggested trying to delay total knee replacement until the plaintiff was older. An arthroscopic examination of the left hip was suggested as the plaintiff no longer responded to bursal injections. A further review was arranged for July 2012: Exhibit "1", p 367; 76. On 16 July 2012, the plaintiff had a lumbar MRI scan which was interpreted as showing mild left neural exit foraminal stenosis due to facet joint arthropathy and mild disc bulge: Exhibit "1", p 368; 77. On 18 July 2012, Dr Nabavi-Tabrizi carried out a left hip arthroscopy procedure and a left femoral and acetabular osteoplasty. Arrangements were made for a review in two weeks: Exhibit "1", pp 369 - 370; 78. On 13 August 2012, Dr Darwish reviewed the plaintiff regarding his lower back pain. He reviewed the MRI scans of the lumbo sacral spine which showed an L5/S1 disc protrusion and L5/S1 foraminal stenosis with potential compression of the L5 nerve root in the foramen. There were no radicular leg symptoms. Physiotherapy and anti-inflammatories were recommended as treatment, with a suggestion for possible treatment by L5/S1 epidural cortisone injection at a later stage: Exhibit "1", p 371; 79. On 16 August 2012, Dr Nabavi-Tabrizi reviewed the plaintiff four weeks post-hip surgery. An MRI of the pubic symphysis was arranged because of discomfort in that region and adductor symptoms. Dr Lim was asked to review the plaintiff's hernia repair: Exhibit "1", p 372; 80. On 22 August 2012, the plaintiff underwent an MRI of the pubic symphysis which revealed chronic osteitis pubis with bony hypertrophy and osteophyte formation. The adductor insertions appeared normal: Exhibit "1", p 373; 81. On 2 October 2012, Dr Nabavi-Tabrizi reviewed the MRI of the pubic symphysis and arranged to inject that area with steroids and local anaesthetic. The plaintiff also had symptoms of left shoulder pain which suggested subacromial impingement, for which physiotherapy was ordered: Exhibit "1", p 374; 82. On 12 October 2012, the plaintiff had a CT guided pubic symphysis injection of steroid and local anaesthetic, without complication: Exhibit "1", p 375; 83. On 8 November 2012, Dr Darwish reviewed the plaintiff concerning his complaints of lower back pain and stiffness. A cortisone injection was recommended but declined. Swimming and weight loss were suggested to the plaintiff, along with a review in six weeks' time: Exhibit "1", p 376; 84. On 16 November 2012, Dr Nabavi-Tabrizi noted the plaintiff was finding it difficult to walk around following his pubic symphysis injection which had only afforded him temporary relief. A referral to a Melbourne specialist, a Dr Young was arranged: Exhibit "1", p 377; 85. On 8 December 2012, the plaintiff experienced an episode of syncope with a short period of unconsciousness for about a minute. Cardiac follow-up was arranged: Exhibit "1", pp 378 - 382; 86. On 18 December 2012, Dr Darwish reviewed the plaintiff for low back pain and stiffness not relieved by medication. The plaintiff agreed to have an L5/S1 epidural steroid injection for this problem: Exhibit "1", p 381; 87. On 9 January 2013, Dr Darwish prepared a report at the request of the third party insurer, in which he expressed the opinion that all of the plaintiff's injuries were related to the accident on 24 May 2006: Exhibit "1" p 385. He noted (at Exhibit "1", p 382) that those multiple injuries were to both knees, the right shoulder, the neck, and the adductor muscles of the left hip: Exhibit "1", pp 382 - 385; 88. On 5 April 2013, Dr Nabavi-Tabrizi reviewed the plaintiff for his left-sided adductor pain and his pubic symphysis pain. He was still trying to arrange a tertiary referral to Dr Young in Melbourne: Exhibit "1", p 386; 89. On 22 July 2013, Dr Darwish viewed the plaintiff's lower back symptoms of stiffness, which were described as having become worse over the preceding three months. The plaintiff found it difficult to bend over to tie his shoelaces. There were no radicular leg symptoms. A further MRI scan of the lumbar spine was arranged: Exhibit "1", p 387 and p 390; 90. On 15 August 2013, Dr Darwish reviewed the plaintiff and noted that he continued to complain of lower back pain and pain in the left sacro-iliac region and that this was not benefitted by cortisone injection. Physiotherapy, hydrotherapy and Oxycontin were prescribed: Exhibit "1", p 391; 91. On 12 September 2013, Dr Darwish reviewed the plaintiff and his continuing complaints of lower back pain and stiffness. It was noted that physiotherapy provided significant improvement. An appointment was arranged for the plaintiff to see Dr Young in Melbourne in the following month: Exhibit "1", p 392; 92. On 15 January 2014, Dr Nabavi-Tabrizi wrote to an insurer indicating that the plaintiff's persisting pain was related to arthroscopy. He stated it was possible that the plaintiff's hip symptoms originated from the plaintiff's lower back: Exhibit "1", pp 388 - 389; 93. On 30 May 2014, Dr Nabavi-Tabrizi reviewed the plaintiff's continuing left hip problems. The recent MRI did not show any overt arthritis. He considered the plaintiff to have an irritable hip joint, and he flagged the possibility of a hip prosthesis as an operative option: Exhibit "1", p 393; 94. On 5 June 2014, Dr Michael produced an up to date copy of his complete file of the plaintiff's clinical records to that time: Exhibit "B", Tab 14, pp 223 - 312; 95. On 27 June 2014, at the request of the solicitor for the plaintiff, the plaintiff's treating psychiatrist, Dr Selwyn Smith, prepared a further report summarising the progress of his clinical contact with the plaintiff as a follow-up to his report dated 7 July 2011. In that follow-up report he reviewed the plaintiff's continued history of attendance at treatment sessions and pharmacotherapy. He identified the plaintiff's ongoing rumination about the accident and other disturbing events he had experienced, he noted the plaintiff's increasing alcohol consumption, his irritability and proneness to aggression, his continued unemployment and his continued episodic dissociative experience of flashbacks to the events he had undergone. Dr Smith confirmed his earlier diagnosis of PTSD, major depression and his poor prognosis, which he considered would require treatment for an indefinite period. He also noted the plaintiff's continued unfitness for work. His opinion was that the accident on 24 May 2006 was the substantial contributing factor to those problems, compounded by the plaintiff's exposure to other traumatic events: Exhibit "B", Tab 9, pp 172 - 177; Exhibit "1", pp 395 - 398; 96. On 21 July 2014, Dr Nabavi-Tabrizi performed a left hip arthrography and cortisone injection procedure on the plaintiff. That procedure did not improve the plaintiff's left hip symptoms. This indicated the pain was not arising from the hip joint: Exhibit "1", p 394; 97. On 8 August 2014, Dr Nabavi-Tabrizi recounted the plaintiff's history post-hip injection of cortisone and considered the plaintiff's left hip pain was severe enough to offer him a prosthetic hip replacement: Exhibit "1", p 399; 98. On 21 August 2014, at the request of his then solicitor, the plaintiff was examined by Dr James Bodel, an orthopaedic surgeon. Dr Bodel recorded (at p 407) that in the incident, when the plaintiff dived out of the way of the oncoming truck, he injured his pelvis and groin, both knees and abdomen, as well as experiencing neck and back pain. After recording the post-accident surgical history (at p 407), Dr Bodel noted the plaintiff's current complaints of pain in both knees, the right being worse than the left, with aggravation on attempts at squatting or climbing, left hip, groin and adductor pain, pubic symphysis pain, continuing neck and left arm pain with numbness and tingling in the left ring and little fingers, and low back pain. He did not comment on the plaintiff's psychological problems. On his examination of the plaintiff, he noted (at p 409), that the shoulder problems were unrelated. His stated diagnosis (at p 411), was of injuries to both knees, the neck, back and left hip and the left adductor muscle group of the left thigh. He assessed the plaintiff as unfit for work. He also considered the plaintiff needed domestic assistance for heavy household maintenance and cleaning activities: Exhibit "1", pp 406 - 412; 99. On 21 August 2014, at the request of the plaintiff's former solicitor, the plaintiff was assessed by Dr Julian Parmegiani, a consultant psychiatrist: Exhibit "B", Tab 1, pp 1 - 8. Dr Parmegiani noted (at p 3), that the plaintiff had developed nightmares and flashbacks immediately after the accident, and became increasingly withdrawn and unmotivated, with decreased appetite, with a 17 kg weight gain due to reduced activity and increased use of alcohol. He also noted the plaintiff's history of discomfort in crowds, avoidance of leaving home, depression, poor sleep, lack of confidence and self-esteem. Dr Parmegiani noted (at p 3), that the plaintiff had seen an employment assistance psychologist, and was also seeing Dr Smith for psychiatric treatment. Dr Parmegiani expressed his diagnosis and opinion (at pp 4 - 5), that the plaintiff had PTSD and secondary depression, anxiety, and secondary alcohol use disorder. He considered the plaintiff's condition to be stable, and he attributed the cause of those psychiatric injuries to the subject accident, with a prognosis for no likely change in the foreseeable future. He also expressed the view that it was unlikely the plaintiff could undertake any paid work. Dr Parmegiani commented that (at p 6), at that time, the plaintiff's alcohol intake could be injurious to him; 100. On 22 August 2014, Dr Parmegiani provided a subsequent commentary dealing with impairment ratings: Exhibit "B", Tab 1, pp 6 - 7. In that report (at p 6), he stated his view that it was unlikely that the plaintiff could live independently without regular support; 101. On 3 September 2014, at the request of the Treasury Management Fund, the plaintiff was examined by Dr Vijay Panjratan, a consultant orthopaedic surgeon: Exhibit "B", Tab 13, pp 199 - 208. The letter of instruction to Dr Panjratan was not tendered, nor was the list of the materials he was asked to consider, but I infer from the terms in which he expressed his views, that he was specifically requested to consider the plaintiff's need for total left hip replacement surgery. He considered the plaintiff's hip pain was not originating from the lower back. He advised against a total hip replacement "at this stage of [the plaintiff's] life". His argument against Dr Nabavi-Tabrizi's suggestion for a hip replacement was that there was no arthritis in the hip. He did not support a need for that surgery as the best option for the plaintiff. He said it was difficult for him to arrive at a conclusive diagnosis of the reasons for the plaintiff's painful left hip, but the injury description was consistent with the diagnosis of a painful hip. He suggested further opinions be obtained before surgery was undertaken; 102. On 11 September 2014, Dr Nabavi-Tabrizi wrote to the workers' compensation insurer. He emphasised that the plaintiff had great difficulty walking, including managing stairs and inclines, and had a pronounced limp, placing more load on the right knee which was becoming increasingly more painful, and the hip was very irritable, with marked restriction in the range of movement, with narrowing of the hip joint seen on MRI. He based his recommendation for a hip replacement on those factors: Exhibit "1", pp 403 - 404; 103. On 3 October 2014, Dr Nabavi-Tabrizi noted that on examination, the plaintiff was getting increasing pain in his left knee, probably related to his left hip pathology, which he hoped would get better after hip replacement surgery: Exhibit "1", p 405; 104. On 22 October 2014, Dr Nabavi-Tabrizi performed a left total hip replacement procedure on the plaintiff: Exhibit "1", pp 413 - 414; 105. On 27 October 2014, Dr Nabavi-Tabrizi referred the plaintiff to Dr Mark Dubossarsky, a specialist rehabilitation physician, following his hip replacement surgery: Exhibit "1", pp 415 - 416; 106. On 13 November 2014, Dr Smith sent a supplementary report to the plaintiff's solicitor after he had reviewed a file that documented the plaintiff's employment in the NSW Police Force. He expressed the opinion that it was the subject accident, and not other events occurring in the plaintiff's employment as a police officer, that had substantially contributed to the plaintiff developing PTSD: Exhibit "B", Tab 10, pp 176 - 177. His opinion in that regard was stated in the following terms: "It is my opinion that although Mr Parrish was exposed to a number of traumatic incidents during his employment with the NSW Police Force, as is expected given the nature of his employment, he was nevertheless able to cope relatively well and did not display any significant psychiatric symptoms. His psychopathology emerged following the motor vehicle accident that occurred in 2006 when the semitrailer lost control on the F5 and killed a man and severely injured Mr Parrish. Since that time he experienced significant pain, has required multiple surgical procedures as a result of his injuries and developed Post-Traumatic Stress Disorder. He was subsequently discharged from the NSW Police Force on 17 February 2010 having not been able to work since 2008. In my opinion the most significant event that has substantially contributed to the development of Mr Parrish's psychiatric disorder relates to the motor vehicle accident that occurred on 24 May 2006. Other events in my opinion did not result in the development of a Post-Traumatic Stress Disorder. [Exhibit "B", Tab 10, p 176] 1. On 2 December 2014, Dr Nabavi-Tabrizi reviewed the plaintiff six weeks post-surgery. The hip replacement surgery was noted to have been successful. An MRI scan was ordered so that a further assessment could be made of the plaintiff's left knee: Exhibit "1", p 417; 2. On 3 December 2014, an MRI scan of the plaintiff's left knee was reported as showing Grade IV chondromalacia of the patella, with focal partial thickness chondral ulceration of the medial-lateral weight bearing areas of the medial compartment cartilage: Exhibit "1", pp 418 - 419; 3. On 6 January 2015, Dr Nabavi-Tabrizi saw the plaintiff again to assess the MRI findings in the left knee. He did not think the Grade 4 changes were bad enough to warrant surgical intervention. He recommended an injection of platelet rich plasma and physiotherapy. The hip surgery was assessed and described as progressing well: Exhibit "1", p 420; 4. On 13 February 2015, Dr Nabavi-Tabrizi injected the plaintiff's left knee with two ampoules of platelet rich plasma: Exhibit "1", p 421; 5. On 27 March 2015, at the request of the solicitor for the defendants, the plaintiff was examined by Dr John Stephen, an orthopaedic surgeon: Exhibit "1", pp 9 - 18. Dr Stephen concluded (at p 17), that the final whole person impairment assessment would need to be assessed in a further six to nine months' time. In his analysis, Dr Stephen considered (at p 14), that the accident could have caused patella-femoral symptoms, and could at least in part be responsible for the plaintiff's cervical problems. He was unconvinced, but did not say why, that any injury to the hip had occurred. He did not engage in an analysis of the cause of the plaintiff's back symptoms, which he did not assess as there was no "radiculopathy, muscle spasm or asymmetry of movement": p 17; 6. On 29 April 2015, at the request of the solicitor for the defendants, the plaintiff was assessed by Professor Nicholas Glozier, a consultant psychiatrist: Exhibit "B", Tab 13, pp 178 - 191. The plaintiff's solicitor re-served that report on the defendants. Professor Glozier reviewed the plaintiff's history, the history of the events of the accident, the evaluation of the plaintiff's physical and psychological symptoms, the history of treatment, including medications, and after assessing the plaintiff's mental state and other reports, he stated his opinion that the plaintiff had PTSD, an alcohol abuse disorder, and a major depressive disorder. Professor Glozier reviewed the plaintiff's history of other incidents in the course of his work and considered those matters made him highly vulnerable or primed to developing his current disorder. He considered the subject accident had in large part led to the development of the plaintiff's PTSD. He considered the plaintiff's prognosis to be poor, and he considered the plaintiff fit for only highly intermittent, undemanding menial or manual work; 7. On 14 May 2015, at the request of the solicitor for the plaintiff, the plaintiff was assessed by Ms Vanessa Kirkham, a consultant occupational therapist: Exhibit "B", Tab 6, pp 58 - 121. Her report will be analysed in connection with the claim for quantification of damages for domestic assistance; 8. On 19 June 2015, Dr Nabavi-Tabrizi provided an estimate for the cost of proposed prosthetic hip replacement surgery: Exhibit "1", pp 422 - 423; 9. On 2 September 2015, at the request of the solicitor for the defendants, the plaintiff underwent a vocational capacity assessment that was carried out by Mr John Raue, a vocational psychologist (Exhibit "1", pp 46 - 59), a functional capacity assessment that was carried out by Ms Gillian Skinner, a physiotherapist (Exhibit "1", pp 32 - 45), and a labour market analysis that was carried out by Ms Liz Atteya, a mental health social worker: Exhibit "1", pp 60 - 74. In my assessment these voluminous reports, which purported to provide job match details for alternative employment positions, for example, as a warehouse administrator, dispatch officer, customer service worker and administrator, casual sales assistant, Christmas casual retail assistant, after sales customer sales assistant, and a retail sales assistant in a shopping centre, are all theoretical recommendations based on physical considerations that in my view demonstrate a lack of understanding of the plaintiff's psychological problems relating to his PTSD condition. I consider those recommendations to have no probative value in this case. I do not regard that evidence as proof that the plaintiff has a residual earning capacity. 10. On 5 October 2015, at the request of the defendants, Ms Liz Atteya, a Rehabilitation Counsellor, who has legal and social work qualifications (mental health), undertook a "Labour Market Search" of possible jobs it was suggested the plaintiff could perform. I found that evidence to have no probative value: Exhibit "1", Tab 3; 11. On 22 February 2016, at the request of the State Insurance Regulatory Authority, the successor to the Motor Accidents Authority, Assessor Enrico Parmegiani, a consultant psychiatrist, assessed the plaintiff's PTSD as chronic, and his secondary depression, and alcohol dependence, as being caused by the subject accident. He assessed the degree of the plaintiff's impairment as greater than 10 per cent (23 per cent), thus entitling the plaintiff to claim damages for non-economic loss: Exhibit "B", Tab 8, pp 161 - 171. Based on his review of the assessment criteria he outlined in his certificate (at p 170), Dr Parmegiani considered the plaintiff's psychiatric symptoms would render him unable to participate in any form of employment; 12. Dr Parmegiani identified his psychiatric diagnosis of the plaintiff to comprise chronic PTSD, secondary depression and alcohol dependence. After setting out his reasoning, based upon his review of the plaintiff's history concerning self-care and personal hygiene, his social and recreational activities, his out of home travel pattern, his social functioning, his memory, concentration and persistence, and his adaptive skills, he assessed the plaintiff to have a 23 per cent permanent impairment for MAS purposes: Exhibit "B", Tab 8, pp 169 - 170; 13. On 24 February 2016, Dr Nabavi-Tabrizi performed left knee patella-femoral joint replacement surgery on the plaintiff: Exhibit "1", pp 424 - 425; 14. On 26 February 2016, Dr Dubossarsky reported on the course of the rehabilitation treatment the plaintiff had received after his left knee replacement surgery, and noted that on discharge, on 7 March 2016, he was referred for physiotherapy treatment: Exhibit "1", pp 426 - 427; 15. On 5 April 2016, Dr Nabavi-Tabrizi reviewed the plaintiff six weeks after patella-femoral joint replacement surgery. Apart from noting swelling in the left calf which was investigated for possible deep vein thrombosis, the plan was for a review in a further six weeks: Exhibit "1", p 428; 16. On 21 October 2016, MAS Assessors, Ian Cameron, Robin Fitzsimmons and Wing Chan, considered the plaintiff's level of permanent impairment on grounds of physical injury. Their MAS Review Panel Certificate reviewed the previous assessment of Assessor Wilding dated 3 February 2016: Exhibit "1", pp 1 - 8. Dr Wilding's combined assessment of the accident-related impairment to the plaintiff's lumbar spine, cervical spine, left hip, left knee and right knee had been stated to be 58 per cent. The review panel went on to consider matters and documents not in evidence in these proceedings (at pp 4 - 5), and concluded (at p 8), that none of the claimed physical injuries were caused by the subject motor vehicle accident. In my view, that opinion is unreliable as it lacks the level of reasoning required by UCPR r 31.27(1)(c) and Sch 7 cl 5(1)(c). This is apparent from the following text extracted from page 7 of Exhibit "1": "The Panel met by teleconference for a second time on 21 October 2016 and considered all of the available evidence. The Panel noted the history as described by Mr Parrish. In the subject incident there was clearly substantial danger and psychological impact. Mr Parrish continues to be greatly distressed with reference to these events. He sees that the development of multiple symptoms, both psychological and physical, is the natural consequence of the events of 24 May 2006. He is also currently distressed and perplexed that the injuries that he sees as the direct consequence of these events have been accepted by the Workers Compensation insurer but are being challenged by the CTP insurer. The Panel understands the distress that this causes for Mr Parrish. However, when viewing the events from a medical standpoint, it would be expected that the effects of physical trauma on the body causing any significant and substantial physical injury would be apparent in the short period after trauma. The reasons are that tissue injury that is inevitably associated with significant pain. While there can be a delay of some days, or even a few weeks, where there has been substantial psychological trauma (or in cases, unlike those of Mr Parrish, of other major physical injuries), this is not the situation for Mr Parrish's injuries. There is a very long period from the crash until the listed physical injuries are recorded. Mr Parrish was able to recover and return to full time police work. He has been progressively more disabled subsequently and the multiple surgical treatments appear not to have been effective and have probably led to increased disability. The Panel noted the criteria for causation in the SIRA (MAA) permanent impairment evaluation system. Section 1.9, page 2 MAA Permanent Impairment Guidelines, states "There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes." The Panel concluded that it could not determine that this test was satisfied because it was not clear that the listed injuries were materially contributed to by the motor accident. There were alternative explanations for the occurrence of the symptoms that were defined as injuries and these were symptoms related to injuries sustained at other times, or bodily symptoms occurring due to intrinsic processes associated with ageing and within the usual experience of an adult that, were interpreted as injuries by the medical practitioners advising Mr Parrish. The additional impairment and disability, currently experienced by Mr Parrish has been the consequence of multiple surgical procedures. The Panel acknowledges that this has occurred but is unable to establish that these impairments are related to the subject motor vehicle crash using the criteria that are set out in the SIRA (MAA) impairment evaluation system. The Panel determined that these surgical procedures would have been performed even if the motor vehicle accident had not taken place." [Exhibit "1", p 7] The reasoning of the panel to the effect that the plaintiff's symptoms were associated with ageing and within the usual experience of an adult, and wrongly interpreted as injuries, is a most problematic and unreliable statement for several reasons. First, the statement was general and not specifically referrable to particular symptoms. Secondly, the level of reasoning was left general, and its sparseness was not compliant with UCPR r 31.27(1)(c) and Sch 7 cl 5(1)(c). Thirdly, the statement that the surgical procedures would have been performed even if the motor vehicle accident had not taken place is an unacceptable ipse dixit of the kind that must be critically examined for its foundations, and if unsupported, it must be eschewed in legal analysis on causation issues: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [86], [87]. 1. On 9 November 2016, the abovementioned MAS review panel comprising Assessors Cameron, Fitzsimmons and Chan concluded "Nil injuries related to the motor accident". That conclusion overturned a previous assessment by Assessor Wilding, which had assessed the plaintiff's degree of permanent impairment as a result of the subject accident, for lumbar, cervical, left hip, left and right knees, at 58 per cent: Exhibit "1", Tab 1, pp 1 - 8, at pp 2 and 8; 2. On 24 January 2017, Dr Stephen prepared a supplementary report at the request of the solicitor for the defendants based on "additional documentation": Exhibit "1", pp 19 - 28. At that time, he was not given the opportunity for an examination of the plaintiff in order to enable him to clarify the unspecified additional documentation which he described as "rather detailed". He considered (at p 20), the Review Panel Report of Assessors Cameron, Fitzsimmons and Chan. Based on that process, Dr Stephen stated, (at p 22) that: "Having reviewed the documentation that you have supplied in some detail, including my own report, I find that my opinion is now closely aligned with of the Review Panel and that on the balance of probabilities, none of the physical injuries sustained was (sic) caused by the incident of 24 May 2006 nor was there any significant material contribution." [Exhibit "1", p 22] The reliability, and therefore, the acceptability of that last cited statement, and Dr Stephen's change of mind is open to question, and I will consider it in the course of my evaluation of the medical evidence. 1. On 27 April 2017, at the request of his solicitor, the plaintiff was reassessed by Dr Julian Parmegiani for the purpose of updating his previous opinion given in August 2014: Exhibit "B", Tab 2, pp 9 - 13. Dr Parmegiani noted (at pp 10 - 12) that little had changed for the plaintiff. He still had the psychiatric symptoms previously identified. These were reported as being: an emotionally impoverished lifestyle; often crying at minimal triggers; struggling to regain control of his emotions; neglecting his personal hygiene; appearing dishevelled; and was still under the care of Dr Smith. Dr Parmegiani reiterated (at pp 12 - 13), his previous diagnosis of PTSD, a secondary depression, and an alcohol use disorder due to the subject accident. He considered the plaintiff to be in a chronic state of debilitation, and not fit for any gainful employment, without the likelihood for change in that position; 2. On 3 May 2017, at the request of his solicitor, the plaintiff was assessed by Dr Robin Higgs, a consultant orthopaedic surgeon: Exhibit "B", Tab 3, pp 14 - 29. Dr Higgs carried out a thorough examination of the plaintiff and he undertook a similarly detailed consideration of the plaintiff's medical history. His analysis will be revisited in the causation consideration. For present purposes, it is sufficient to note that he identified his views to the effect the accident contributed to the cause of the plaintiff's neck, low back and knee problems, but not his shoulder problems. He endorsed the orthopaedic treatment the plaintiff had received, and stated (at p 28), that the plaintiff was not fit for any work activity. Dr Higgs concluded that in the accident the plaintiff suffered: 1. An injury to his cervical spine in the form of a permanent aggravation of pre-existing degenerative cervico-thoraco spinal pathology, which has resulted in neck pain and restricted neck movements; 2. An injury to the lower back also in the form of a permanent aggravation of pre-existing degenerative pathology localised to the lumbo-sacral region causing low back pain and a restricted range of lumbo-sacral motion; 3. Injury to both knees in the form of permanent aggravation of pre-existing bilateral age-related patella-femoral joint degenerative pathology necessitating the need for bilateral patella-femoral joint arthroplasty, which has resulted in significant impairment in the function of both lower limbs; 4. Injury to the left hip in the form of aggravation of pre-existing age-related degenerative pathology in the left hip, which has necessitated surgery for a total replacement of the left hip joint, the result of which also contributes to impaired function of both of the plaintiff's lower limbs; 5. Injury to both shoulders where there had been pre-existing problems in relation to the left and right gleno-humeral joints and their functioning where those shoulders had previously and respectively been operated upon in 1996 and 2000. Dr Higgs concluded that any ongoing shoulder problems were not accident-related; 6. Dr Higgs suggested the plaintiff be reviewed by a general surgeon in relation to an inguinal hernia and an abdominal hernia; 7. Dr Higgs considered that from the orthopaedic perspective, the plaintiff was unfit for any work activity, and should take care with the physical activities that he may undertake. In my view, a fair reading of Dr Higgs' report does not inculpate the shoulder problems as an impediment to the plaintiff working as a police officer; 1. On 1 June 2017, at the request of his solicitor, the plaintiff was assessed by Dr Neil Berry, a consultant surgeon: Exhibit "B", Tab 4, pp 30 - 36. Dr Berry primarily focussed his analysis on the plaintiff's groin complaints and (at p 33), he noted the MRI evidence of inflammation of the pubic symphysis, and he also identified the accident as the cause of the plaintiff's left adductor tendinitis as part of the hip injury, along with the need for hernia repair. He noted that the plaintiff had undergone an open right inguinal hernia repair at the same time as the left adductor release during open surgery on the left hip, and he also noted the subsequent repair of the umbilical hernia. He concluded (at p 34), that the plaintiff was unfit for employment on account of the history of cervical fusion, chronic back pain, left hip replacement, and bilateral partial knee replacements. He considered that the inguinal hernia, and its subject repair, were only minor contributing factors to the plaintiff's inability to undertake employment. He also noted the plaintiff to be well above the desirable weight range for his height; 2. On 26 June 2017, at the request of his solicitor, the plaintiff was examined and assessed by Dr Sophia Lahz, a consultant rehabilitation physician: Exhibit "B", Tab 5, pp 37 - 57. Dr Lahz undertook a detailed examination of the plaintiff and she also reviewed and summarised the extensive array of reports that had been supplied for her consideration. Of particular relevance was the history she obtained from the plaintiff of him diving out of the way of the airborne vehicle, and landing heavily on his knees and hips with his arms stretched forward. After reviewing other medical opinions, Dr Lahz recorded the history she obtained from the plaintiff (at pp 45 - 48), and she then recorded the plaintiff's current symptoms (at pp 48 - 49), as being psychological and physical, with the latter referring to the neck, shoulders, mid back, lower back, left hip and groin, the pubic symphysis, and the knees. She also noted the plaintiff's history of being plagued since that time with pain in both knees, left hip, groin and lower back: Exhibit "B", Tab 4, p 46. Dr Lahz attributed the plaintiff's knee problems, hip problems, inguinal hernia and mechanical backache to the subject accident. She recorded the plaintiff's functional abilities (at pp 49 - 50), as being a limited standing and walking tolerance of 10 - 15 minutes before needing to rest due to knee pain. She noted that the plaintiff's limited ability for household chores stems from widespread pain, as well as significant psychological symptoms, specifically, depression, anxiety, sleep disturbance, nightmares, flashbacks, concentration difficulties, a lack of drive and motivation. After reviewing a range of identified imaging studies (at pp 51 - 54), Dr Lahz identified her diagnoses and causation conclusions (at pp 54 - 55), these being that the plaintiff's knee problems, hip, groin and low back problems, and his overweight and deconditioned state, as well as his psychological problems, were due to the subject accident. She stated that she found it difficult to relate the plaintiff's neck problems to the accident because of the apparent delay of 2 - 3 years for its onset. In my view, that latter doubt on her part must be read in conjunction with the plaintiff's evidence on that matter, and in conjunction with the analysis advanced by Dr Higgs. Dr Lahz supported the plaintiff's need for domestic assistance, and with travel (at p 57), and implicit in her analysis that the plaintiff did not have an identified capacity to work; 3. On 6 July 2017, at the request of the defendants, the plaintiff was assessed by Ms Victoria Gracey, an occupational therapist. Her report was dated 10 August 2017. It originally formed part of the defendants' tender bundle that was admitted as Exhibit "1", appearing at pp 75 - 129 of that bundle. However, its tender was rejected on grounds provided at that time, namely, the service of that report did not comply with the requirements of UCPR r 31.28, and there were no exceptional circumstances identified to invoke a discretion to admit the report notwithstanding such non-compliance: T114.20 - T114.21; 4. On 1 September 2017, at the request of the solicitor for the plaintiff, the plaintiff was re-assessed by Ms Vanessa Kirkham: Exhibit "B", Tab 7, pp 122 - 160. Ms Kirkham's opinions will be analysed and cited in connection with the assessment of the plaintiff's claim for damages for domestic assistance.
The clinical records of the plaintiff's treating general practitioner were tendered: Exhibit "B", Tab 14, pp 223 - 312. On examination of those records it appears they comprised three sets of copies. The first lot represents the records as at 30 November 2011 (Exhibit "B", Tab 14, pp 263 - 287). The second lot of copies represents the records as at 18 May 2012 (Exhibit "B", Tab 14, pp 288 - 312). The third lot of copies represents the records as at 5 June 2014: Exhibit "B", Tab 14, pp 223 - 262.
The latter records cover consultations for the period 28 May 2006 to 5 June 2014. Essentially, those records indicate that the plaintiff first attended at that practice on Sunday 28 May 2006 for insomnia. He was given counselling and Temazepam tablets: Exhibit "B", Tab 14, p 240. There were a number of unrelated attendances. He also attended on subsequent dates for knee pain (14 April 2008; 19 May 2008; 10 August 2009; 22 March 2010; 1 October 2010; 11 March 2011; 6 June 2011; 30 September 2011; 22 November 2011; 28 November 2011), variously for neck, shoulder and back pains (6 April 2010; 9 April 2010; 11 May 2010; 11 December 2010), PTSD (1 May 2010; 25 June 2010; 7 September 2010; 19 November 2010; 18 May 2012), hip pain (29 August 2011; 6 September 2011; 24 January 2012).
I now turn to my consideration and evaluation of the medical evidence and the medico-legal opinions on matters in dispute.

(4) Evaluation of medical evidence

Having undertaken the survey of the medical evidence as outlined at paragraphs [90] to [92] above, in the paragraphs that follow, I now set out my assessment and my conclusions on the reliability of relevant aspects of the medical evidence concerning the psychiatric and physical consequences that have arisen for the plaintiff in this case.

Psychiatric opinions on consequences of accident

It is convenient to commence that evaluation with a consideration of the evidence comprising the reports of the consulting psychiatrists. The overwhelming conclusion to emerge from that evidence is that the subject accident has caused the plaintiff to suffer a debilitating PTSD condition with associated depression and anxiety, which has led to other symptoms and conditions of a psychological nature, including the plaintiff's use of alcohol to excess. His earlier historical exposure to psychological trauma in his work as a police officer had primed and predisposed him to develop those psychological problems but were not the relevant cause.
The content of the psychiatric opinions in evidence in this case lead me to conclude that it was most unlikely that the plaintiff would have developed the described debilitating psychological illnesses absent an exposure to trauma of the kind that he in fact experienced in the subject accident.
In that regard, the expert opinions of the plaintiff's treating psychiatrist, Dr Selwyn Smith, and the medico-legal experts, Dr Julian Parmegiani, Dr Graham George and Professor Nicholas Glozier are in substantial agreement, as is also the effect of the MAS assessment of Dr Enrico Parmegiani, as variously cited at sub-paragraphs (61), (71), (95), (99), (106), (112), (117), (118) and (125) of paragraph [90] above.
The fact that it might have been possible for the plaintiff to have developed PTSD from some other exposure to psychological trauma in his work but for the accident, is an imponderable and unquantifiable background possibility. That said, because the plaintiff had an underlying vulnerability to develop that condition, that is a matter that will be taken into account in the assessment of damages: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643.

Opinions on physical consequences of the accident

In order to arrive at findings on the nature of the plaintiff's physical injuries and his ongoing disabilities, it is necessary to consider and to reconcile aspects of the medical evidence, reports and opinions that deal with the physical consequences for the plaintiff of the subject accident.
The key to determining those issues is to first consider the evidence of the treating doctors, Dr Michael, Dr Lim, Dr Nabavi-Tabrizi and Dr Darwish, in conjunction with the opinions of the medico-legal examiners on matters of a physical nature, as well as the expressed views of the members of the MAS Review Panel. That consideration should take place in light of the entire fabric of the medical evidence as set out and reviewed in paragraphs [79] to [88] and [90] to [92] above.

Dr Michael's records and interview - physical consequences of accident

Dr Michael's clinical records are sparse. In my view, the content of Dr Michael's interview by Ms Baker (at Exhibit "C", pp 32 - 33), in which he said the plaintiff had not indicated to him, before 1 June 2010, that he was experiencing any psychological distress, should be discounted in light of the content of his clinical record on 28 May 2006 which referred to counselling: Exhibit "B", Tab 14, p 240, and duplicated at other places.
In my view, it must be recognised that the brief entries in the clinical records of Dr Michael do not represent a full transcript of matters discussed at consultations he had with the plaintiff. Essentially, it appears that his role was to oversee the plaintiff's management through referral of the plaintiff to various specialists for assessment and treatment of his physical and psychological issues.
It is plain that the substantive aspects of the plaintiff's physical problems have been managed by the specialists to whom the plaintiff was referred. As already observed at paragraph [49] above, the plaintiff's evidence, which I accept, was that he was in the early days preoccupied with the physical consequences of his accident. The chronological events that evolved concerning his physical problems is amply demonstrated in the numerous various sub-paragraphs of paragraph [90] above, to confirm that view. I do not consider Dr Michael's records to materially derogate the claims made by the plaintiff.

Dr Lim - physical consequences of accident

The essence of Dr Lim's role was to surgically treat the plaintiff's right inguinal hernia, the cause of which he related to the subject accident. That view remained unchallenged and uncontradicted. The plaintiff's attendances on Dr Lim for treatment are summarised at sub-paragraphs (3), (4), (6), (7) and (8) of paragraph [90] above. Dr Lim's role had concluded on 31 July 2006 when he referred the plaintiff to Dr Nabavi-Tabrizi for management of the plaintiff's groin, tendon and lower limb problems.

Dr Nabavi-Tabrizi - physical consequences of accident

In addition to the many contemporaneous letters that Dr Nabavi-Tabrizi has provided in respect of his care and treatment of the plaintiff, as chronologically listed at sub-paragraphs (9) to (13), (16), (17), (22) to (24), (26) to (46), (54), (62), (65) to (67), (73), (77), (79), (81), (84), (88), (92), (93), (96), (97), (102) to (105), (107), (109), (110), (114), (119) and (121) of paragraph [90] above, he also gave oral evidence at the hearing: T91 - T105.
Dr Nabavi-Tabrizi recalled his consultations with the plaintiff very well: T91.18; T96.6. The effect of his evidence was that he treated the plaintiff for his lower leg, both knees and left hip problems (T97.33), the latter being a very complex problem because there was a combination of problems with his musculature, his tendons, and his joints. He also had an abnormal gait due to his hip problems. He said that all these problems were related, and he explained that the plaintiff's hip stiffness also affected the lower back: T91.40 - T92.38.
Dr Nabavi-Tabrizi observed the plaintiff to have gained significant weight over the time he was treating him: T92.50. This had the effect of placing mechanical stresses on the joints which had the effect of accelerating the damage to cartilage tissue, which had contributed to worsening symptoms over the years: T94.10. In giving that evidence, Dr Nabavi-Tabrizi was aware of the plaintiff's history of previous knee injury: T91.50 - T94.22.
Dr Nabavi-Tabrizi gave consideration to the fact of the plaintiff's post-accident right knee injury sustained in the course of his duties in April 2008, in the course of making an arrest, when he fell on that knee, had produced symptoms of soreness. He considered that injury to have been minor because on the subsequent sensitive ultrasound test that was undertaken, there was no effusion of swelling due to swelling by fluid, thus negating the existence of any significant trauma: T94.15 - T94.47.
Significantly, Dr Nabavi-Tabrizi was of the opinion that, on the probabilities, the plaintiff's pre-accident knee problems would not have progressed but for the subject accident, and he would not have had low back, hip or groin problems but for that accident: T94.49 - T95.8. As the treating orthopaedic surgeon he was in a position of expert advantage to form that view.
Dr Nabavi-Tabrizi was asked to consider the fact that, on 20 February 2007, he had considered the plaintiff fit to resume full policing duties. He rejected the proposition that this indicated there had been no permanent injury by that stage. In the course of that rejection, he explained, persuasively in my view, that the natural course of joint damage is that symptoms fluctuate from day to day, and at times symptoms could be under control, including by medication: T101.13 - T101.34. He went on to emphasise the fact that symptoms are resolved in the context of a damaged joint, the permanent nature of that condition means that symptoms could arise again with activity: T101.45 - T102.4; T103.7 - T103.13. His observations about the plaintiff's weight gain, as already cited, are also relevant to those conclusions.
Dr Nabavi-Tabrizi was not cross-examined on his opinions as to the need he saw for the plaintiff to undergo hip replacement surgery.
Nothing arose from the oral evidence of Dr Nabavi-Tabrizi which cast doubt on his evidence that the plaintiff's claimed orthopaedic problems were accident-related. I accept entirely his oral evidence and the evidence that comprised his correspondence that described the plaintiff's post-accident problems and treatment.

Dr Darwish - physical consequences of accident

Dr Darwish's involvement in the plaintiff's treatment was at the referral of Dr Nabavi-Tabrizi. Dr Darwish's treatment of the plaintiff was limited to treating the plaintiff's neck injury by means of an anterior cervical fusion on 20 August 2010. The plaintiff's treatment by Dr Darwish is summarised at sub-paragraphs (46), (49), (64), (69), (78), (83), (86) to (90) and (92) of paragraph [90] above.
Dr Darwish's opinion dated 9 March 2013, in which he stated the plaintiff's neck problems were due to the subject accident, was not contradicted by any other specialist of like qualifications. His opinion, as the treating surgeon, therefore carries a high probative value in these circumstances. I accept his opinion that the plaintiff's neck problems were accident-related.

Dr Panjratan

In Dr Panjratan's 3 September 2014 report to Treasury Managed Fund (at Exhibit "B", Tab 13, pp 207 - 208), he did not support the plaintiff's need for a left total hip replacement as the best option for the plaintiff at 49 years of age.
That view was expressly addressed to the Treasury Managed Fund Claims Manager, and it referred to a file review conducted by a Dr Barbara Schiff, whose opinion was not in evidence. Dr Panjratan questioned the justification for Dr Nabavi-Tabrizi's advice for the recommended hip replacement procedure absent arthritis in the hip. The context was that Dr Nabavi-Tabrizi had considered the plaintiff sufficiently disabled to warrant offering him hip replacement surgery.
In that regard, Dr Panjratan wrote: "I do not consider that we should rush into a hip replacement. Perhaps in the future Mr Parrish may need one, but this is not indicated right at this point. The fact that the operation has been scheduled even before approval is given is putting pressure on all of us. I believe Mr Parrish is a candidate for a clinical meeting and the opinions of peers would be worthwhile. A hip replacement in a 49-year-old man who has no arthritis in the hip and the joint is clear, does not seem right to me, although I could be wrong. In my opinion, a further opinion (not a medico-legal opinion) from a hip surgeon, such as Dr Warwick Bruce at Concord, who specialises in that, is worthwhile. If the Doctor also agrees that a hip replacement is required, so be it, but on the present situation, I am unable to accept that a hip replacement is indicated." [Exhibit "B", Tab 13, p 208]
The defendants did not introduce any opinion evidence from Dr Bruce concerning the justification for hip replacement surgery.
The total left hip replacement procedure went ahead on 22 October 2014: Exhibit "1", pp 413 - 414. The cross-examination of Dr Nabavi-Tabrizi by the defendants did not raise any of the doubts and comments expressed by Dr Panjratan. Dr Nabavi-Tabrizi's justification for the plaintiff's left hip replacement as outlined in his letter dated 11 September 2014, as summarised at sub-paragraph (102) of paragraph [90] above, remained unchallenged. I therefore do not accept the evidence of Dr Panjratan in which he sought to cast doubt upon Dr Nabavi-Tabrizi's opinion as to the plaintiff's need for left hip replacement surgery.

Dr Bodel - physical consequences of accident

The 21 August 2014 report of Dr Bodel and the unchallenged opinions he expressed therein, is summarised at sub-paragraph (98) of paragraph [90] above. I accept Dr Bodel's reasoned conclusions on the connection between the subject accident and the plaintiff's complaints concerning his knees, his pelvis, groin, left hip, left pubic symphysis and adductor tendon problem, his neck and related problems, and his back problems, as all being causally connected to the subject accident.

MAS Review Panel - physical consequences of accident

The MAS Review Panel Certificate was based on an assessment carried out on 21 October 2016. The certificate, which was issued on 9 November 2016, is not an expert evidentiary medical report. An analysis of that report appears at sub-paragraph (122) of paragraph [90] above. It had the limited purpose of determining whether, on grounds of the assessment of permanent impairment due to physical injuries according to the applicable statutory assessment protocol, the plaintiff met the threshold for being able to claim damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90]; Brown v Lewis [2006] NSWCA 87, at [23].
A significant extract of the MAS Review Panel Certificate has already been incorporated in sub-paragraph (122) of paragraph [90] above. The defendants place reliance on the MAS Review Panel's Certificate, and Dr Stephen's subsequent agreement with that assessment: MFI "4", par 17 and par 18.
For the present purpose of demonstrating that Certificate is unreliable and unacceptable as evidence in these proceedings, it is sufficient to cite three of the conclusions of the Review Panel.
First, the Review Panel's stated inability to establish that the plaintiff's impairments were related to the subject motor vehicle accident cannot be considered to be reliable evidence in these proceedings because that stated inability related to the application of statutory assessment criteria and systems that has little if any relationship to the manner in which the Court must consider questions of attribution or causation of injury. The nomination of a zero physical impairment assessment on that criteria does not bind the parties in this case.
Secondly, the Review Panel's statement of alternative formulation against causality of injury, which asserted that the medical practitioners advising (and treating) the plaintiff had misinterpreted the plaintiff's symptoms as injury-related, when instead they might have been due to intrinsic processes associated with ageing within the usual experience of an adult must, on the other unchallenged evidence, be rejected as being inapplicable to the plaintiff's circumstances in this case.
That rejection arises on account of its unreasoned generality and the lack of challenge by the defendants to the assessments made by those treating practitioners. I prefer the evidence of the plaintiff's treating and assessing practitioners to the unjustified and conjectural comments of the Review Panel.
Thirdly, the Review Panel's determination that the surgical procedures performed on the plaintiff would have been performed even if the subject motor vehicle accident had not occurred, is a sweeping conjectural proposition that, in terms of legal analysis, is simply unbelievable due to the lack of supporting reasons: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [86], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
The MAS Certificate is of no probative value to the determination of any of the factual issues which I have to decide. Its conclusions do not meet the requirements of UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c) which applied at the time it was issued.
The only relevance of considering the MAS Review Panel Certificate in these proceedings is that it was ultimately relied upon by Dr Stephen in his second report. Accordingly, it must be examined in that context.

Dr Stephen - physical consequences of accident

Dr Stephen examined the plaintiff on 27 March 2015. His first report and opinion which followed that examination is summarised at sub-paragraph (111) of paragraph [90] above.
The effect of Dr Stephen's opinion at that time was that he accepted a causal connection between the accident and the plaintiff's knee and neck problems. He did not engage in a consideration of the cause of the plaintiff's back problems, and he said he was unconvinced of the cause of the plaintiff's hip problems.
Accordingly, the inference that I consider must be drawn from Dr Stephen's first report is that it was not intended to represent a final or conclusive analytical opinion on the matters he was asked to consider.
In my view any doubts expressed by Dr Stephen about the plaintiff's hip problems have been effectively answered in the unchallenged evidence of Dr Nabavi-Tabrizi.
On 24 January 2017, at the request of the solicitor for the defendants, Dr Stephen prepared a supplementary report. He did so without the benefit of a further examination of the plaintiff. That explanatory report was by way of a paper review, which included a copy of the MAS Review Panel Certificate and other "additional documentation", not specified by him or otherwise identified in a letter of request. In that supplementary report, he agreed with the Review Panel assessment that "none of the physical injuries" claimed by the plaintiff were caused by the accident and he also negated any material contribution of the accident to those matters complained of by the plaintiff.
In my opinion, the cited opinions in Dr Stephen's supplementary report have no probative value in these proceedings. That report is infected and contaminated by the non-probative views of the Review Panel which does not constitute acceptable expert evidence for the reasons already identified. His conclusions which adopted the views of the Review Panel similarly lack any probative value. He has not adequately explained his conclusions by an acceptable process of reasoning for the changes to the tentative opinions he had expressed in his first report: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. The evidence of Dr Stephens does not serve to contradict any other medical evidence relied upon by the plaintiff in this case.

Dr Berry - physical consequences of accident

Dr Berry's general surgical assessment dated 1 June 2017 is summarised at sub-paragraph (127) of paragraph [90] above. Dr Berry primarily focussed his assessment on the plaintiff's groin, hernia, pubic symphysis, and adductor tendon problems. He considered those matters, and the plaintiff's neck and back complaints as being related to the accident. He considered that these problems have rendered the plaintiff unfit for employment. I accept those opinions.

Dr Lahz - physical consequences of accident

Dr Lahz's expert rehabilitation assessment dated 27 June 2017 is summarised at sub-paragraph (128) of paragraph [90] above. I consider her report to be appropriately reasoned in compliance with UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). I accept her unchallenged opinions except as to her views on causation of the plaintiff's neck problems, where she expressed doubt about a connection between those neck problems and the subject accident.
In that regard, I prefer and accept the unchallenged opinion of the treating spinal surgeon, Dr Darwish, and the reasoned medico-legal analysis provided by the report of Dr Higgs as to the existence of a relevant causal connection between those neck problems and the subject accident.

Dr Higgs - physical consequences of accident

My analysis of Dr Higgs' orthopaedic opinions dated 3 May 2017 is summarised at sub-paragraph (126) of paragraph [90] above.
I accept Dr Higgs' analysis as to the nature and effect of the plaintiff's injuries. His opinions are appropriately reasoned: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). His reasoning was not challenged and that reasoning was expressed in acceptable terms: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
In my view the only questionable issue that emerges from Dr Higgs' report is that he has unnecessarily sought to ascribe a ratio of proportions for accident-related symptoms and pre-existing symptoms.
The proper analysis is that once the accident has been shown to be responsible for an injury resulting in discomforting or disabling symptoms, where this is in part due to aggravation of an underlying condition, the next question to be addressed is: whether the subject accident has materially contributed to the relevant disabilities.
In my view, when Dr Higgs' opinions are properly understood, he was saying that the physical injuries the plaintiff suffered to his cervical spine, his lumbo-sacral spine and to both knees, resulted in permanent aggravations of pre-existing pathology. I take this to mean that the accident has materially contributed to the plaintiff's disabilities in those regions of his body.
Whether the assessed contribution of the accident to those disabilities was three-fifths as in the case of the plaintiff's neck function, nine-tenths as in the case of the plaintiff's low back function, or two-fifths of function as in the case of the plaintiff's lower limbs because of knee and hip problems, becomes an irrelevant consideration.
This is because it must be recognised that the subject accident was the material contributor that caused the disabling symptoms in those regions. In that regard, the defendants have no answer to Dr Higgs' opinions (at p 27), that the subject motor vehicle accident is "the main substantial contributing factor" to the plaintiff's injuries and his present condition, and that a direct relationship or causal nexus exists between the accident and the plaintiff's present condition. In my view, that opinion establishes a sufficient materiality to make the defendants liable to the plaintiff in damages, as claimed by the plaintiff.
There is no reliable evidence to suggest that the symptoms of which the plaintiff complained in those areas of his body would have arisen in any event as a natural process of ageing, deterioration or degeneration, or if so, when this might have otherwise occurred. When analysed as above, Dr Higgs' views on proportionality do not assist the defendants to "disentangle" accident-related and non-accident-related symptoms.
The state of the evidence is that before the subject accident, despite the plaintiff's injury and treatment history, he was fit for his work as a police officer, and he was unaffected by the symptoms and problems in his neck, low back, left hip and lower limbs, that now affect him in the form of disability. On the evidence, the only factor which changed that position was the subject accident, which tipped the balance into disability.
In that sense, the defendants have to take the plaintiff as he was found, with whatever underlying asymptomatic pathology that might have been intrinsic to him. To avoid responsibility for those matters, by showing that the plaintiff's disabilities, or any of them, are due to underlying causes, and are not injury related, the defendants carry an evidentiary onus of disentangling those matters. In my view that evidentiary onus has not been discharged in this case: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462, at [134]; Glen v Sullivan [2015] NSWCA 191, at [43] - [47]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201, at [58] - [74].
Having surveyed the medical evidence, and for the reasons identified at sub-paragraph (122) of paragraph [90] above, I find that the evidence comprising the MAS Review Panel Certificate (Exhibit "1", Tab 1, pp 1 - 8), and the opinions of Dr Stephen (Exhibit "1", Tab 2, pp 9 - 28), do not represent a reliable basis upon which the defendants could discharge that onus.
The causation tests to be applied in this case concern material contribution, as considered in the preceding paragraphs, and the requirements of s 5D of the CL Act. The relevant portions of s 5D of that Act provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). …"
In my assessment, the plaintiff's described injuries were materially contributed to by the trauma of the accident in that the underlying aged-related and prior injury-related degenerative changes, described as pathologies, were permanently aggravated by the trauma so as to render those underlying conditions symptomatic. The attribution of proportionate estimates is necessarily imprecise and it is not a relevant consideration in this case.
The relevant consideration is that the effect of the described permanent aggravations have produced a level of symptoms and dysfunction that was not present beforehand. In that sense, the permanent aggravation would not have occurred but for the subject accident, thus satisfying the requirements for factual causation envisaged by s 5D(1)(a) of the CL Act. The evidence does not demonstrate a level of symptoms, if any, that would have arisen even if the accident had not occurred.
The plaintiff's injuries and aggravations, and the consequent symptoms, would not have occurred were it not for the negligence of the defendants. Therefore the scope of liability requirements of s 5D(1)(b) of the CL Act are also satisfied. There are no exceptional circumstances: s 5D(2) of the CL Act.
Having worked through the above analysis of the medical evidence in conjunction with the effect of the plaintiff's evidence, I now turn to the required task of making findings on the nature and the extent of the plaintiff's accident-related injuries and disabilities.

(5) Injuries sustained in the subject accident

Having reviewed the circumstances of the accident as described at paragraph [30] above, and having considered the evidence of the plaintiff, and the content of the already identified and summarised voluminous medical records as they related to him, I am satisfied that the plaintiff sustained injuries as he has claimed.
I find that the plaintiff experienced a series of shocking, rapidly occurring, and confronting psychological traumas at the accident scene, at which time he witnessed the tragic death of someone he was trying to protect, as well as experiencing a near-death experience in relation to himself, and in relation to his colleagues who were also at the scene. Those events caused the plaintiff to suffer a shocking psychological trauma that has had a continued and adverse effect on him in the form of PTSD, and the related sequelae of depression and anxiety.
I find that in addition to that described psychological injury, when the plaintiff dived or leapt out of the way of the defendants' fast approaching vehicle, and landed heavily on the hard road surface, he experienced multiple jolting physical injuries causing him to experience pain all over his body, as he has stated. The circumstances described by the plaintiff would doubtless have been a physically jolting if not bruising experience.
The plaintiff's immediate sensations of pain and discomfort were in both knees, his chest, his neck and his lower back, his pelvis and left hip region, as well as feeling pain in his whole body.
Of the expert medical assessments that surveyed the plaintiff's injuries, I find the reports of Dr Higgs dated 3 July 2017, and Dr Lahz dated 25 June 2017, to be the most comprehensive and insightful: Exhibit "B", Tab 3, pp 14 - 29; Exhibit "B", Tab 5, pp 37 - 57.
Dr Higgs took a careful history of the plaintiff's neck injury being associated with left upper limb brachalgia. He also noted the right inguinal hernia, which Dr Lim attributed to the subject accident.
As recorded by Dr Higgs (at Exhibit "B", Tab 3, p 16), in the week following the accident, the plaintiff continued to suffer pain in his lower extremities, in his knees, his hips, especially the left hip, in his neck and in his groin. Those pains gradually worsened.
Those descriptions by the plaintiff as extracted from his oral evidence, and the summary of the plaintiff's pain and progress as outlined by Dr Higgs, comfortably persuade me that in the subject accident, the plaintiff was injured in those described areas.
Dr Higgs traced the plaintiff's history of pre-accident injury and treatment to both knees and concluded (at p 17), that the subject accident had caused gradual worsening of the plaintiff's bilateral knee joint pain, and which later led to multiple surgical interventions, as will be set out in the chronology of reviews and treatment.
Dr Higgs gave consideration to the plaintiff's history of post-accident neck pain with left-sided brachalgia and low back pain, and concluded (at p 17), that those pains were probably caused by the subject accident.
Dr Higgs concluded (at pp 25 - 26), that the accident has caused permanent aggravation of pre-existing cervico-thoracic spinal pathology resulting in neck pain and restriction of movement and that the plaintiff's impairment of neck function was two-fifths related to pre-existing degenerative changes, and three-fifths caused by the permanent aggravation that occurred in the subject accident. Given the plaintiff's description of his actions in diving or leaping out of the way of the defendants' vehicle, and arching his head backwards, it is quite plausible, and not otherwise improbable, that he would have sustained a straining injury to his neck in that manoeuvre, either from the arching back movement of his head and neck, or from the general jolting that he sustained when he landed on the road. In those circumstances it is not necessary to identify the mechanism of injury with precision.
Dr Higgs concluded (at p 26), that in the accident, the plaintiff received soft tissue musculo-ligamentous strain to his lumbo-sacral spine permanently aggravating pre-existing pathology in that region, resulting in pain, restriction of movement and restricted range of back movement. He considered that one-tenth of the impairment was associated with pre-existing pathology.
Dr Higgs concluded (at p 26), that the age-related degenerative changes in the plaintiff's left and right knee joints, and in his left hip joint, which were permanently aggravated by the subject accident, led to the documented surgical procedures. He attributed three-fifths of the plaintiff's impairment to the pre-existing degenerative pathology, and the remaining two-fifths to the subject accident.
The plaintiff's low back injury and pelvic, hip and groin injuries, could easily have been contributed to, if not caused by, the plaintiff's heavy police appointments belt.
Dr Higgs concluded (at p 27), that the plaintiff's pre-existing shoulder impairments, which included surgery to the left shoulder in 1996, and to the right shoulder in 2000, were not related to the subject accident. The plaintiff makes no claims in respect of his shoulders: T175.19.
I accept all of Dr Higgs' unchallenged opinions on those identified causal connections as described above, with one qualification, as follows.
Although Dr Higgs has sought to define and express the cited proportional contributions to the plaintiff's pains in terms of that which relates to the underlying age or pre-injury related pathologies and that which is accident-related, that is not the correct legal analysis. Dr Higgs in effect acknowledged this (at p 27), when he stated that it was his opinion that the subject motor vehicle accident "is the main substantial contributing factor to Mr Parrish's injuries and to his present condition".
Dr Lahz took a careful history from the plaintiff, she undertook a careful examination of him, and undertook a thorough review of the imaging studies that related to his injuries: Exhibit "B", Tab 5, pp 45 - 54. She concluded (at pp 54 - 55), that the plaintiff's described problems were attributed to the subject accident. However, she had difficulty attributing the plaintiff's neck problems to the accident. In that regard, I consider that difficulty is satisfactorily resolved by the reasoning provided by Dr Higgs (at Exhibit "B", Tab 3, pp 25 - 26), where he analysed the injury to be an aggravation of underlying degenerative changes that permanently aggravated the pre-existing pathology. I accept Dr Higgs' analysis concerning the plaintiff's neck injury and find that the accident has permanently aggravated the underlying pathology, which led to the plaintiff ultimately needing surgery for a cervical fusion.
In addition to the above survey, I also accept the combined effect of the opinions of Dr Lim and Dr Nabavi-Tabrizi to the effect that the plaintiff's left hip, his groin, and the related ligaments and musculature, were injured in the subject accident.
In arriving at the findings as to the plaintiff's injuries, I have not overlooked the purported concession made by the plaintiff that there is no claim for the actual cost of the plaintiff's cervical fusion procedure: T175.16.
That concession does not derogate from the opinion of Dr Higgs that the accident was a relevant cause of the plaintiff's neck problems. Since the basis for the cited concession is not before me, and it may be a matter for which the parties had good reason to agree upon, I leave that matter to the accounting exercise that the parties must undertake after these reasons are published, as is required when effect is given to the provisions of s 151Z of the WC Act.
In arriving at the above conclusions I have not accepted the conclusions of the MAS Review Panel report comprising Exhibit "1", pp 1 - 8, or the conclusion in the final report of Dr Stephen as relied upon by the defendants. In my view, the causation opinions expressed in those reports are unreliable, my reasons for that view, and for preferring the opinions of Dr Higgs, have already been identified.

(6) Treatment

It is plain from the evidence of Mrs Parrish, as surveyed at paragraphs [37] to [40] above, that the plaintiff's psychological experience in the accident became the overwhelming primary focus of his thinking in the days following the accident.
On 28 May 2006, a few days after the accident, the plaintiff first saw his general practitioner, Dr Michael, at which time he was prescribed Temazepam tablets, 10mg, to be taken at the dose of 1 - 2 per night as directed. The records show that Dr Michael also gave the plaintiff counselling: Exhibit "1", p 156; Exhibit "B", pp 255 - 312. Dr Michael's records did not elaborate on the need or the focus of that counselling.
Dr Michael's extensive file of progress notes comprising the plaintiff's health records was tendered as part of Exhibit "B", at Tab 14, pp 223 - 312. As the parties did not make much detailed reference to that file, I simply note that it contains relatively brief notes relating a series of consultations with the plaintiff between 28 May 2006 and 5 June 2014.
The plaintiff has had extensive physical assessments by his treating doctors. He has had some 19 invasive surgical procedures as is evident from the chronology of events set out in the sub-paragraphs of paragraph [90] above.
The initial surgery was for inguinal hernia repair by Dr Lim. Dr Nabavi-Tabrizi has carried out multiple procedures on the plaintiff's knees, left hip, and pubic symphysis in an endeavour to alleviate the plaintiff's disabling symptoms.
In these proceedings, the defendants sought to downplay the significance of the plaintiff's described problems as being due to the accident. That approach proceeded by reference to the sparseness and the timing of the documentation of the plaintiff's psychological problems. Sparse though the documentary evidence may be in that regard, the incontrovertible fact is that on the very first consultation with his general practitioner a few days after the accident, the plaintiff was given counselling: Exhibit "1", Tab 6, p 156. I infer from the proximity to the circumstances of the accident, the traumatic nature of those events, and the objective evidence of the plaintiff's distress at those events, including from Mrs Parrish, to the effect that since the accident the plaintiff was "broken" and "hasn't mended properly", that the counselling related to the psychological impact of the accident on the plaintiff.
In coming to that conclusion, I have not overlooked the fact that the workers' compensation insurer had, at a much later stage, interviewed Dr Michael on 5 July 2010, at which time Dr Michael stated that the plaintiff had not indicated to him that he was experiencing any psychological distress until 1 June 2010: Exhibit "1", Tab 7, p 32.
In that regard, it is uncertain as to whether Dr Michael had the plaintiff's clinical records before him at the time of that interview. Irrespective of whether he did or did not have that file before him, Dr Michael appears to have overlooked the fact that on 28 May 2006, a few days after the subject accident, he recorded the fact that he had counselled the plaintiff: Exhibit "1", Tab 6, p 156. I infer that counselling was for the counselling consequences of the subject accident.
Some cross-examination of the plaintiff was directed at seeking to establish, based on the limited content of his medical records, that he had made very few initial complaints of physical injury at the time he first sought medical attention after the accident.
The defendants have sought to harness that evidence to seek a finding that some of the plaintiff's claimed physical injuries were either due to his underlying history of injury, or were otherwise due to supervening events, which it was argued, ought to limit the extent of the damages to be assessed in this case. For the reasons that follow, I do not accept the defendants' submissions made along those lines.
First, as was adequately and satisfactorily explained by the plaintiff, I accept that he did make complaints of having sustained physical injuries, and he cannot be responsible for the selected notes written by his doctor: T50.48; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8]; Mason v Demasi [2009] NSWCA 227, at [2]. In that respect, having regard to the nature and the limited structure and content of those notes, I consider they must be seen to be simply a memory aide for the doctor writing those notes, rather than representing a transcript of the entire detail of what was said by the plaintiff in the identified consultations.
Secondly, in considering the events contemporaneous to the plaintiff's initial consultation with his general practitioner, I consider it more probable than not, that the primary focus of the plaintiff's first presentation concerned non-physical matters, such as his accident-related insomnia, for which he was prescribed a benzodiazepine drug to help him sleep: Exhibit "B", p 255; p 312. In my view, the relative sparseness of the notes of the plaintiff's complaints of a physical and psychological nature are in my view consistent with the plaintiff's general stoicism.
Thirdly, in answer to the challenge (at T50.21 - T50.31), that a reading of Dr Michael's records suggests the plaintiff did not make a complaint about psychological problems for some years, about 4 years after the accident, I accept the plaintiff's evidence that those problems had "never not been stated" by him to his doctor: T50.33. The first consultation with Dr Michael tends to confirm that evidence, as cited at paragraph [182] above. Furthermore, the unchallenged evidence comprising the content of the statement from the plaintiff's police colleague who encouraged him to seek psychological assistance, tends to contradict the appropriateness of that challenge: Exhibit "C", Tab 3, p 15, par 12 to par 13.
Before leaving matters of injury and treatment, it is necessary to revisit and consider a matter of supervening knee injury the plaintiff sustained in April 2008 in the course of making an arrest. I accept Dr Nabavi-Tabrizi's evidence to the effect that injury was relatively minor: T94.16 - T94.47. I therefore consider that further knee injury played no significant part in the plaintiff's long term knee disability and need for treatment.

(7) Disabilities that remain

Having heard, read and considered the plaintiff's oral testimony, and from my reading of the tendered medical reports, it is plain that the plaintiff's predominant post-accident disability is an entrenched psychological problem that has been aptly described as PTSD. In stating that view, I do not minimise the plaintiff's accident-related physical restrictions and related frustrations. These are also inextricably bound up with his psychological problems.
The plaintiff's oral evidence on the subject of his psychological distress was brief. In my view, it was somewhat stoically understated by him. It was however well evidenced in his answers to questions when he exhibited spontaneous episodic upset and distress when questioned: T14.41; T16.35; T56.50; T57.12 - T57.23. As a result of such reactions, the cross-examiner fairly and considerately decided to employ brevity in the remainder of the cross-examination on matters of a psychological nature: T57.39. The evidence of Mrs Parrish described and well-illustrated the severe nature of the plaintiff's psychological problems in more detail. In my assessment she did so without embellishment.
Mrs Parrish described the plaintiff's post-accident state as being an angry and a frustrated man who was very different compared to how he was before the accident: T76.47 - T77.12; T86.30 - T86.44. She described how beforehand, laughter was a frequent occurrence in their home (T70.7), and how in his daily life, the plaintiff had been able to deal with the stressful consequences of his work: T67.20 - T67.42. She went on to describe how he has abused alcohol since the accident (T70.14), at times consuming a bottle of Scotch to get to sleep: T72.25 - T73.7. She also described how he screams out in his nightmares, and how he lashes out in his sleep, and how he sweats profusely at those times: T70 - T71. She also described his changed and reduced involvement in domestic chores since the accident.
The plaintiff summed up his psychological problems by identifying a number of circumstances that tend to set off the florid aspects of his psychological condition. These include small things, like sudden noises, such as nearby trucks or breaking glass. Such occurrences provide triggers for him: T19.20.
The plaintiff has experienced constant nightmares and recurring feelings of guilt since the accident: T19.48 - T20.4. In order to try and obtain some peace of mind he has taken the unusual step of going to see the wife of the deceased truck driver to apologise to her for being unable to save his life: T44.49 - T45.2. However, his feelings of guilt nevertheless remain.
The plaintiff suffers from insomnia and he sleeps for only a few hours at night: T19.45; T31.31. His nightmares have resulted in him, over the past three to four years, sleeping in a separate room to his wife, so he does not disturb her: T21.27. He has at times taken to using alcohol to excess: T22.7. He no longer copes well with stressful situations, and his decision making skills have become adversely affected: T22.26. He has experienced irritability and at times he has been uncharacteristically abusive to junior officers at work when he should have adopted a more tolerant and nurturing role. These matters have impacted on his dealings with others: T22.40 - T23.3.
On 7 February 2011, the plaintiff was involuntarily discharged from the police force both for psychological and physical reasons: T55.4. This has devastated him. This is because he loved his work, and policing was all he ever wanted to do workwise: T30.41 - T31.3. For him, his involuntary discharge from that role represents a substantial loss.
In his enforced retirement, the plaintiff has at times become neglectful of himself and his personal hygiene, and his wife needs to prompt him in that regard: T32.16 - T32.26. At times he has struggled mentally, and he did not eat adequately, or do anything meaningful: T32.35 - T32.45. He is now significantly overweight: T31.43.
The plaintiff feels unable to work because of both physical and emotional factors: T33.50. He needs the assistance of his wife to manage his many medications because of forgetfulness on his part: T34.17. He has at times felt suicidal, but has been constrained from acting on such thoughts because of his family, and because of the gratuitous collegiate help he has received from being able to talk things through with a number of older retired police officers who live nearby, and who have a work-based understanding of the significance of his experience, and what he has been through: T57.12.
Prior to his enforced retirement, the plaintiff sought to suppress the psychological component of his post-accident problems, and his physical pain. He did so because he wanted to stay in the job: T46.8; T47.36. Also, in the first few years after the accident he was concentrating on his physical problems and the various surgical procedures he had undergone: T46.5 - T46.8; T51.5.
The plaintiff distinguished the psychological effects of the subject accident from his previous exposures to disturbing events that occurred in the course of his police work, as follows: "… A. I have had previously very - you know, I didn't sleep but that was - I think I might have had a couple of periods with - after each little incident, be it the, the young children that were burnt or the little girl that was debowelled or - that's natural from the police. We tend to not have it - we have a couple of rough nights and then we just move on, it gets put into the back of our head and we just go back to normal. Q. Those incidents that you've just discussed and these traumatic incidents, if I can use that, before this motor vehicle, you had flashbacks about them from time to time, didn't you? A. Initially, after the, the incident, yes. As I said, it - there's what we call - I guess, what they call triggers. If - an analogy to it would be that if - a smell, for example, may trigger off something related to being within - when they were doing post mortems. There's a certain smell, which is Vicks, because the PMA used to use Vicks under his nose, so if I smell Vicks I smell the - the morgue. So they're just triggers." [T58.19 - T58.34]
The plaintiff acknowledged the previous incidents as being "in my head every day": T59.5. He identified the context as being that when he saw Dr Selwyn Smith, the treating psychiatrist to whom he had been referred, for the effects of the subject accident, he was asked to identify those earlier experiences.
In that regard, as a background aid to understanding the plaintiff's history of exposure to traumatic events, Dr Smith had asked the plaintiff to prepare a chronological list of relevant previous police incidents he had attended over the course of time. That process had created episodes of flashbacks and teariness for the plaintiff. It appears this was a temporary reaction and it no longer occurs, except perhaps, for example, if he goes past the site of a child murder, which can give him flashbacks: T59.11 - T59.16.
As already referred to at sub-paragraph (112) of paragraph [90] above, I accept Professor Glozier's interpretation of those events as primers for the plaintiff to psychologically decompensate if he was exposed to further trauma in his work as a police officer: Exhibit "B", Tab 11, p 185.
The plaintiff's physical disabilities centre around his experience of constant pain, as well as discomfort and restriction of movement in his knees, the left knee being worse than the right knee: T25.12 - T25.18. The left knee also regularly swells: T25.17.
The plaintiff has experienced increasing problems with neck pain on waking. He initially attributed this to poor sleeping posture, but on reflection, he now ascribes his neck pain to the action of throwing his head back in the events of the accident: T30.20 - T30.27. Dr Nabavi-Tabrizi identified the phenomenon that it is not always possible to take a detailed history of every part that hurts in cases where patients present with multiple problems: T100.20. Absent medical commentary on that matter, I accept the plaintiff's factual analysis as being reasonable and not inherently improbable. Despite having had an operation on his neck, he has been left with shooting pain and a sensation of pins and needles in his left arm and hand: T30.10 - T30.35.
The effect of the plaintiff's experience of knee pain and lower back pain has been that he cannot bend in order to dry himself below his knees, and he needs the assistance of his wife with this, as well as needing her assistance to tend to his toenails, and to some aspects of dressing: T32.25.
Despite having had hip replacement surgery, the plaintiff continues to get pain in his hip, knee and lower back, which prevents him from sustaining commonplace household tasks he previously undertook, such as cleaning or vacuuming. He cannot sustain those for more than 5 minutes or so (T35.6), after which he needs to sit down due to pain. As a result, he does as little as possible, but even then, finds he must then take pain relieving medication: T59.41 - T60.7. His physical problems relating to his knees, left hip and lower back have been contributed to by his post-accident weight gain: T92.25 - T94.10.
In combination, all of the plaintiff's problems as outlined above adversely and severely impact on his ability to work and to function normally.

(8) Work effects

I accept that before the subject accident, the plaintiff "lived and breathed" his job in the police force: T20.44. He was obviously ambitious for promotion, as is implicitly evident from his pursuit of study in order to seek to qualify for the position of Inspector.
Although the plaintiff was pursuing that career pathway, for the expedient purpose of simplicity of calculation of damages for past economic loss, without reference to the need for the consideration of prospects of promotion and the interpretation of the complicated awards that are incorporated into Exhibit "D", the plaintiff's legal advisors have sought to quantify that aspect of his claim without reference to promotional considerations: T87.10 - T87.32.
In his supervisory position as Sergeant, the plaintiff's work was predominantly of an administrative nature comprising office work: T22.36. On his initial return to work in November 2006 following surgical treatment, the plaintiff was appointed as Acting Supervisor at Camden Police Station. He had post-accident difficulties doing that work despite the fact that it involved predominantly office work. He persevered and kept working because he wanted to stay in the job: T26.16 - T26.34. The work to which he returned was essentially the same as his pre-accident duties: T28.47.
Following his return to work, the plaintiff found that he continued to have problems with his left leg, and then with the right leg when transferring weight bearing from his left leg to his right leg: T28.50 - T29.1. At that time, and on account of those matters, he was obviously not physically fit for full police duties due to the effects of the accident. That position has not changed. The plaintiff had regular periodic bouts of absences and then return to work on restricted duties with on and off attempts at full duties before his enforced retirement: T48.20 - T48.23; T54.6 - T54.11.
In February 2011, the plaintiff ultimately found himself in the position where he had no choice but to accept the fact that a decision had been made by the Police Commissioner to discharge him from the NSW Police Force on medical grounds: T30.45; T52.20. He believed that the reasons he was given for that discharge was on account of both psychological (T54.27) and physical (T55.4) factors. The documentary evidence does not contradict that evidence and I accept the plaintiff's account in that regard because it also accords with the pre-liability assessment dated 7 July 2010, comprising Exhibit "C", Tab 7, and the 2 December 2010 report of Dr George: Exhibit "B", Tab 12.
The plaintiff now feels that he cannot work because of his psychological problem in which he experiences psychological reactions, such as when seeing a truck. He has anxiety, and he does not like dealing with people. He stays at home because that is his refuge: T56.46. - T56.48. He now has very few outings: T19.37 - T19.38; T59.28; T75.28 - T76.14. He does not want to deal with people any more: T56.45 - T56.48.
The plaintiff feels he cannot do anything: T32.44. He has not sought out any work since his medical discharge as he feels that physically and emotionally, he is unable to work: T33.45 - T33.50; T55.41. He is embarrassed at being unable to work: T32.40 - T32.41. I consider that his assessment of his inability to work and his circumstances is realistic. The preponderance of the medical evidence supports that assessment.
I reject the notion that the plaintiff could work as a toll collector. This is not only because there is doubt about whether such work still exists, but also because that work involves prolonged standing, which is difficult for him: T56.32 - T56.48. Given his post-accident reticence to be around people, which is part of his psychological illness, it is difficult to envisage him working in any meaningful capacity.

(9) Domestic effects

In my assessment, the plaintiff's evidence concerning his need for the gratuitously provided domestic assistance was somewhat understated. He described needing assistance with showering and toileting, and some aspects of personal care: T32.17 - T32.26. He needs Mrs Parrish to correctly manage his medications: T34.10 - T34.21. He relied on others, predominantly a neighbour, to fulfil outdoor domestic and maintenance tasks such as gardening: T33.14 - T33.36.
Mrs Parrish has had knee replacement surgery. She is therefore limited in her ability to clean the family home. The plaintiff is only able to carry out cleaning tasks for about 5 minutes because of his experience of pain in his hip, knees and lower back: T35.1 - T35.12; T59.41 - T60.11. This is different to how he used to assist with domestic tasks whenever he could before the accident: T59.20. The plaintiff has already moved house since the accident. There are no immediate plans to downsize the family home: T80.39 - T81.16.
Now the plaintiff lacks the mental motivation and inclination to do things without being prompted and pressed by Mrs Parrish into albeit limited activity, including in relation to showering and to go out of the house: T59.25 - T59.30. Before the subject accident, the plaintiff used to do the cooking at home, but he has lost interest, but he sometimes still helps with minor tasks: T33.41.
In contrast to what I consider to be the understated nature of the plaintiff's evidence on such matters, Mrs Parrish provided persuasively illustrative evidence of the plaintiff's need for assistance in several important respects. She described the plaintiff as being active in doing housework and cooking before the accident: T69.1 - T69.35. She described how he no longer contributed to household tasks such as cooking and vacuuming: T74.15 - T74.30. Beforehand he used to do a lot of the cooking but this is no longer the case: T78.50 - T79.32. He no longer carries out pool maintenance: T76.40. Mrs Parrish now has to prompt him to shower, at times she has to assist him with personal care, and with regard to his appearance because he no longer takes care about how he looks: T74.36 - T75.9. She also assists him with foot care and with putting on his shoes: T83.35 - T83.40. The plaintiff's need for such prompting is a regular occurrence, which she described as "ground hog day": T80.32 - T80.37. I accept her evidence on those matters.
Mrs Parrish estimated that she would spend some four to five hours per day tending to the plaintiff's needs before she started doing other things that she needed to do: T121.1 - T121.6. Her evidence concerning those matters may be conveniently defined as involving specific tasks, as follows: 1. It takes her about an hour to an hour and-a-half each day to cajole or argue with the plaintiff to get him to have a shower: T117.22 - T118.6; 2. It takes her about 30 to 40 minutes per day to encourage the plaintiff to pursue personal hygiene tasks: T118.18 - T118.27; 3. It takes her 20 minutes or so, about three days per week, to get the plaintiff out of the house to go to see his friends: T119.1 - T119.9; 4. She also hovers in the background when the plaintiff's friends visit because at times he can get agitated during conversation, and she intervenes to "calm the waters" to avoid the escalation of raised voices: T119.10 - T119.30; T123.3 - T124.1; 5. She drives the plaintiff to and from medical and allied appointments at varying frequency. This amounts to 2 to 3 hours per week: T119.45 - T120.15; T125.8 - T125.43; 6. She goes with the plaintiff to medical appointments because he does not always remember what his doctors tell him he is required to do. She accompanies him to ensure such matters are given proper attention: T120.26 - T120.33. This extends to ensuring that when he sees his doctors, he gives an adequate and forthcoming account of his problems: T120.36 - T120.47; 7. Every six weeks or so she drives the plaintiff to see his treating psychiatrist, Dr Smith, which involves a drive of between 30 to 40 minutes, which I infer involves between an hour to an hour and twenty minutes for a return trip: T125.45 - T126.28.
The plaintiff has provided expert evidence from Ms Kirkham, an occupational therapist, which has more closely analysed his need for domestic and related assistance. I consider that Ms Kirkham has provided realistic estimates of the time required to fulfil those needs.
In making her recommendations, Ms Kirkham had regard to the plaintiff's history of described difficulties with personal care, some of which she has also observed. These included: difficulty dressing his lower limbs, including putting on and taking off socks due to low back and left hip pain, and restricted movement; occasional assistance with toileting due to restricted ability to reach behind him, difficulty with showering and drying; and toenail trimming. She also recorded the plaintiff's difficulties in carrying out housework, and his inability to carry out garden, lawn and pool maintenance.
In her two reports, dated 14 May 2015 and 4 September 2017 (at pp 111 - 115 and pp 149 - 152), Ms Kirkham analysed the plaintiff's need for past care and domestic assistance into seven relevant periods, with quantification of the hours expended, as follows: 1. 24 May 2006 to 30 June 2008 at 3 hours per day, or 21 hours per week, over 109.7 weeks, calculated at 2303.7 hours 2. 30 June 2008 to 31 December 2009, at 3.25 hours per day, or 22.75 hours per week, over 78.4 weeks, calculated at 1783.6 hours. In that period the plaintiff had 6 documented surgical procedures; 3. 31 December 2009 to 25 July 2012, at 3.5 hours per day, or 24.5 hours per week, over 133.9 weeks, calculated at 3280.6 hours. In that period the plaintiff has had 4 documented surgical procedures; 4. 25 February 2012 to 14 May 2015 (being the date of her first assessment), at an average of 25.5 hours per week, over a period of 146.1 weeks, calculated at 3725.7 hours; 5. 14 May 2015 to 24 February 2016, at 25.4 hours per week over 40.86 weeks, calculated at 1041.93 hours; 6. 24 February 2016 to 6 April 2016, at 27.5 hours per week, over a period of 6 weeks, calculated at 165 hours; 7. 6 April 2016 to 1 September 2017, at 25.5 hours per week, over a period of 72.38 weeks, calculated at 1868.64 hours.
In recognition of the fact that the above calculation of hours for past care and assistance are necessarily estimates, because precision is not possible, in assessing the value of those services that have been provided to the plaintiff, it is necessary to apply some discounts, which will be identified and explained in my reasons for assessment.
Ms Kirkham's final report, dated 7 September 2017 (Exhibit "B", Tab 7), estimated the extent of the plaintiff's probable future care needs as follows: 1. Domestic tasks at 4.5 hours per week; 2. Personal care tasks at 12 hours per week; 3. House and property maintenance tasks at 0.75 hours per week; 4. Lawn, garden and pool maintenance, at 2 hours per week.
Those estimates total 19.25 hours per week. The future domestic assistance items and needs as outlined in the immediately preceding paragraphs will be revisited in my analysis and assessment of the claim for damages for future domestic assistance.

(10) Mitigation

The plaintiff was under a legal obligation to mitigate the deleterious effects that his injuries had upon him. That obligation arose both pursuant to s 136 of the MAC Act, as well as pursuant to s 151L of the Workers' Compensation Act 1987. I am satisfied from both the evidence of the plaintiff, and from the evidence generally, that the plaintiff has discharged his duty to mitigate under both of those regimes. There was no submission made by the defendants to the contrary. The question of failure to mitigate was considered by the defendants during the hearing (at T56.5 - T57.12) but that question was not subsequently argued.

(11) Plaintiff's most likely circumstances but for the accident

It is necessary to identify the plaintiff's most likely circumstances but for the accident as a preliminary matter before making an assessment of the claim for future economic loss: s 126 of the MAC Act. In that regard, I find that the plaintiff's most likely circumstances but for his injury would have been according to the following assumptions: 1. Consistent with the plaintiff's long and dedicated commitment to his career as a police officer, he would most likely have continued to be employed as a police officer, at least at the rank of Sergeant, for as long as was permitted by age limits on service, and his health; 2. The plaintiff would not have been able to serve as a police officer beyond the age of 67 years; 3. It was highly likely, given his long service as a police officer, his good reputation and aptitude for the job as identified by his colleague (at Exhibit "C", Tab 3), his ambition and actions in seeking promotion, that the plaintiff would have advanced in his seniority and rank in his continued service in the NSW Police Force as long as his health permitted; 4. Although the plaintiff had a history of sustaining physical injury in the course of his work as a police officer, and requiring occasional time off work for treatment, absent any further aggravating injuries, none of those physical injuries and their sequelae presented an impediment to the plaintiff's continued employment as a police officer; 5. Although the plaintiff's experience of previous exposure to distressing and stressful circumstances in the course of his police work predisposed or primed him for possible decompensation when exposed to further traumatic or gruesome events, either directly or indirectly, there were no signs of him decompensating, as had occurred following the subject accident; 6. At the time of the accident, the plaintiff had a stable home life with a supportive and understanding spouse. There is no sound basis for assuming that situation would not continue. This suggests that he would have been supported in managing routine non-extraordinary stressful work-related events that might arise from time to time in his work as a police officer; 7. In his senior role as a supervising Sergeant, with predominantly administrative duties, the chances of the plaintiff being intensively or routinely exposed to distressing events as a general duties police officer would be relatively diminished when compared to the experience of an officer of a lesser general duties rank. This is a relevant consideration to assessing the prospect of the plaintiff suffering a decompensating illness from some other cause or exposure to distressing events in the future, absent the occurrence of the subject accident; 8. Recognition must be given to, and account must be taken of, the imponderable impact of possible adverse future events that might otherwise have led the plaintiff to suffer, either individually or in combination, physical or psychological debilitation due to the ordinary adverse vicissitudes of life so as to cause an impairment in future earning capacity; 9. Assessing the possible future impact of adverse vicissitudes of the kind outlined above is an evaluative discretionary exercise that must be undertaken in such cases: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.

Assessment of damages

In the paragraphs that follow, I set out my assessment of the heads of damage claimed by the plaintiff.

Actuarial factors

At age 52 years, according to published median life tables conventionally used in the assessment of damages in such cases, the plaintiff has an estimated statistical life span of 33 years. At his present age, his ordinary expected working life is 14.5 years. The 5 per cent multipliers for projection of future losses on account of those factors are 855.7 and 542.3 respectively.

Non-economic loss

On behalf of the plaintiff, it was submitted that his damages for non-economic loss should be assed at $375,000. In contrast, on behalf of the defendants, it was submitted that non-economic loss damages should be assessed at $200,000, at the highest, $300,000: T166.23 - T166.39.
The plaintiff's injuries as identified at paragraphs [156] to [176] above, and the resultant combination of physical and psychological disabilities identified at paragraphs [191] to [209] above, including the limiting effects of the numerous surgical procedures that left him with scars, have had a wide ranging and permanently deleterious impact upon his life and upon his ability to enjoy the amenity of his life, including the loss of his career. The satisfaction he would otherwise have gained from his work as a police officer, including hopes of promotion, is now lost to him.
A review of the details of the numerous invasive treatments the plaintiff has undertaken, as outlined in sub-paragraphs (4), (11), (13), (23), (26), (28), (33), (35), (37), (44), (55), (67), (74), (77), (83), (96), (104), (110) and (119) of paragraph [90] above, reveals that the plaintiff had some 19 documented invasive procedures ranging from injections administered under imaging guidance, open surgery, variously for joint arthrography, steroid injections, arthroscopy, joint replacement, and a cervical fusion, all of which would have had unpleasant consequences, and which would have left some form of scarring. But for the accident, the plaintiff would not have required any of those procedures. These matters also have a bearing on the amount of damages for non-economic loss.
The plaintiff's loss of amenity of life on account of his psychological problems comprising his PTSD and his nightmares is a significant matter to be taken into account. As a result of his nightmares, he and Mrs Parrish now sleep in separate rooms. This is also a significant change in the amenity of his former life.
The plaintiff's non-economic loss submission represents the upper end of the range for such damages in a case such as this one. In my view, since the plaintiff is to be compensated for the complete loss of his earning capacity, the assessment of his damages for non-economic loss should be moderated in a discounted amount to reflect the need to avoid overlap or double compensation.
In assessing the appropriate discounted amount to be awarded for non-economic loss I have also taken into account the principles identified at paragraph [19] above, which require that regard must be had to the possibility that the plaintiff's previous injury history, which is unconnected to the subject accident, may have caused, or might still cause, him to develop disability as he ages. On the medical evidence I have reviewed, I consider that possibility to represent a relatively small contingent prospect. This is because as a Senior Sergeant, irrespective of his prospects of promotion to Inspector, it was far less likely that the plaintiff would have been exposed to physical and psychological stresses associated with hands on field work, including pursuing and manhandling offenders. Nevertheless, it is still a factor that must be taken into account: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643.
As was indicated during the course of oral submissions, I consider that the non-economic loss submission by the defendants represents inadequate compensation: T166.25. In my view, the proper amount to be awarded for this head of damage, in fairness to the plaintiff without visiting unfairness on the defendants, is the sum of $340,000.
I therefore assess the plaintiff's damages for non-economic loss in the amount of $340,000.

Past economic loss

On behalf of the plaintiff, it was submitted that his damages for past economic loss should be assessed in the sum of $629,512.75. The basis of the calculation was the already identified conservative assumption that the plaintiff's past economic loss should be assessed on the basis of his level of earnings at the time of his accident without reference to the effects of fluctuating increments in the applicable awards that would have arisen over the course of the 12 years since the accident.
On that basis, the plaintiff's gross rate of earnings at the time, $92,783, equates to $1784.29 per week gross, or $1325.29 per week net.
The plaintiff was paid refundable weekly compensation for two periods during which he was off work. The first period was between 26 June 2006 and 12 November 2006, a period of 19 weeks, which at the rate of $1325.29 per week net, results in a calculation of loss of $25,180.51. The second period was in the submitted period from 1 August 2008 to the date of hearing, a period of 475 weeks, which at the same weekly rate, results in a calculation of loss of $629,512.75. The combined total of those losses is the sum of $654,693.26.
In contrast, on behalf of the defendants, it was contended that there should be no assessment of damages for past economic loss because, but for the subject accident, the plaintiff's earnings would have been equal to his actual earnings. In that regard the defendants contend that although the plaintiff has been assessed as being unfit for work on account of his psychological injuries, because he was, it was submitted "unfit for work in any event because of physical injuries" there should be no award of damages for economic loss: MFI "4", par 70. The defendants called no reliable medical evidence to support that contention. Accordingly, I do not accept that submission.
Consistent with my analysis of the medical evidence and the plaintiff's involuntary retirement for accident-related reasons, I find myself unable to accept the defendants' cited submission. The plaintiff would not have needed to have involuntary medical retirement imposed upon him but for the effects the accident. I find that the plaintiff should be compensated for the full period of his claim for past economic loss, as submitted, but subject to what now follows.
In assessing the plaintiff's damages for past economic loss, in this case I consider that some measure of discount ought to be applied to the above calculation to reflect the fact that the plaintiff was in an occupation that foreseeably posed some risks to his physical and psychological wellbeing.
This is confirmed by the evidence of other historical instances in which he was hurt on duty. This raises the possibility that he might have incurred further or aggravating injuries from other causes that could well arise in the course of fulfilling this police duties if he had worked in the 6 year period from his enforced retirement in 2011, until the hearing of his case: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643.
To reflect the possible impact of such imponderable factors, I consider it appropriate that the calculation for past economic loss damages should reflect a relatively modest discount component of 5 per cent because discounting past damages involves different considerations compared to future damages. The resultant discounted calculation is $621,958, which I round off to $620,000.
I therefore assess the plaintiff's damages for past economic loss in the amount of $620,000.

Past loss of superannuation

The plaintiff's damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of the amount of $620,000 as assessed for past economic loss, namely $55,800.

Fox v Wood

Following the subject injuries, the plaintiff was paid weekly payments of workers' compensation. Tax was deducted from those payments. The plaintiff is entitled to have the total amount of that deducted tax included in his damages award: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.
The parties have been unable to agree on the amount to be included in the plaintiff's damages assessment for this head of damage. Those matters were ventilated at further hearings listed on 7 September 2018 and 12 September 2018.
The parties were able to reach only limited agreements on Fox v Wood damages on the discrete assumption that the plaintiff's retirement was on grounds of PTSD alone. That agreement was in the amount of $3151.64: Transcript, 7 September 2018, T4.22.
At that time, the parties indicated that due to complications arising from the position taken by Allianz, the workers' compensation insurer, on this question and on the question of the application of s 151Z of the WC Act, it would be necessary to first make my findings of fact available to enable those consequential matters to be either agreed or to be further litigated for resolution. In cases where s 151Z of the WC Act must be applied, it has been observed that the latter course would be costly and undesirable: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492, at 503F.
At a further listing on 12 September 2018, at which time those issues were ventilated, the parties were required to provide the up to date calculations for the plaintiff's incurred treatment costs, the weekly payments of compensation, and the tax deducted from those weekly payments: MFI "6".
In response, the parties produced a schedule which, amongst other things, on a provisional basis, identified the amounts of tax deducted from weekly payments of compensation in the total sum of $38,314.06: Exhibit "3".
That aggregated sum was based on the assumption that the plaintiff's weekly payments of compensation related to his PTSD condition ($3151.64), injuries to his left knee, right groin and hip ($24,018.42), and injuries to his right knee ($11,144).
That aggregated sum of $38,314.06 did not include any allowance for Fox v Wood damages in relation to payments of weekly compensation for the plaintiff's neck and back injuries, which I have found to be accident-related aggravations. It therefore remains uncertain as to whether reclaimable tax was deducted from payments made in respect of compensation for neck and back injuries.
Accordingly, it is not possible to assess the plaintiff's total entitlement to Fox v Wood damages until those calculations are modified to reflect my findings of fact on those matters. This means that I am only able to make provisional or interim findings which the parties are required to address with consequential short minutes to be brought to court to reflect those findings.
I therefore make an interim assessment of the plaintiff's Fox v Wood damages in the amount of $38,314.06.

Future economic loss

On behalf of the plaintiff, it was submitted that his damages for future loss of earning capacity should be assessed in the amount of $752,799.44.
In contrast, and consistent with the defendants' submissions in respect of past economic loss, the defendants submitted that the plaintiff's most likely future earning capacity but for the subject accident would equate to his present and actual future earning capacity. For the reasons already identified, I do not accept that submission.
The combined and compelling effect of the medical evidence of the consultant psychiatrists, Dr George, Dr Smith, Dr Parmegiani and Professor Glozier (Exhibit "B", Tab 12, pp 192 - 198; Tab 9, pp 171A - 171H; Tab 9, pp 172 - 177; Tab 1, pp 1 - 8; Tab 13, pp 178 - 191; Tab 8, pp 161 - 171; Tab 2, pp 9 - 13), and the evidence of the physical medicine specialists, Dr Bodel, Dr Higgs, Dr Berry and Dr Lahz (Exhibit "1", pp 406 - 412; Exhibit "B", Tab 3, pp 14 - 29; Exhibit "B", Tab 4, pp 30 - 36; Exhibit "B", Tab 5, pp 37 - 57), leads me to the overwhelming conclusion that the plaintiff is and will remain incapable of exercising an earning capacity, due to the effects of the subject accident.
Not only did that accident cause the plaintiff to suffer PTSD, but the ongoing effects of the plaintiff's physical injuries exacerbate his problems. All of these matters impact on the plaintiff so as to adversely affect his earning capacity.
In my view, the plaintiff has no practical or exercisable residual earning capacity and that position is most unlikely to change for the remainder of his life. His earning capacity has been effectively destroyed by the subject accident, and his damages for future loss of earning capacity must be assessed on that basis, without any practicable residual earning capacity.
The quantification of the plaintiff's future economic loss submission was premised upon assumptions to the effect that the applicable Crown Employees (Police Officers - 2014) Award provided for a Senior Sergeant, 5th Year to be paid $121,323 per annum, and that by the time of the hearing, the plaintiff would have been comfortably within that income bracket.
That level of earnings equates to an income of $2333.13 per week gross or $1660.13 per week net.
I accept the reasonableness of those assumptions, noting that the plaintiff was aiming for the even higher position of Inspector, and has on occasion since the accident, acted in the Inspector's role. As a dedicated long-serving police officer, there was a real possibility that he would achieve a higher rank of that nature but for his injuries. Accordingly, I consider that the quantum submission made on behalf of the plaintiff was expressed in conservative terms.
The 5 per cent actuarial projection of a net weekly loss of $1660.13 over 14.5 years to age 67 (x 542.3) yields the sum of $900,122. In balancing the factors that underpin that projection, including my assessment of the plaintiff's most likely circumstances but for his injury, against the plaintiff's occupational injury history, and his predisposition for potential decompensation in the face of future trauma, I consider that it is appropriate to apply a slightly higher than conventional discount for possible adverse vicissitudes.
I assess that discount at 20 per cent. In that regard, the factors to be balanced are, on the one hand, the standard or conventional vicissitudes discount of 15 per cent, aligned with the fact that with advancing seniority, if not likely promotion, and less stressful administrative work, the conventional 15 per cent discount would be sufficient, and on the other hand, the potential for decompensatory exposure of the plaintiff, as a sensitised, predisposed or primed police officer, to direct or indirect trauma, might be a random event which could have severe disabling consequences. In the senior largely administrative role, those severe consequences are in my view much less likely to have arisen for the plaintiff. When that discount of 20 per cent is applied, the projected amount is reduced to $720,097.
I therefore assess the plaintiff's damages for future economic loss in the amount of $720,097.

Future loss of superannuation

The plaintiff's damages for future loss of employer funded superannuation benefits are assessed in the claimed percentage of 13.58 per cent of the amount of damages assessed for future economic loss, $720,097, namely the sum of $97,789.

Past domestic assistance

On behalf of the plaintiff, it was submitted that his damages for past gratuitously provided domestic assistance should be assessed in the amount of $329,554.89. That amount relates to care and assistance that has been variously provided to the plaintiff, as calculated in the schedule incorporated in MFI "1", at the applicable rates as specified by s 141B of the MAC Act.
In contrast, the defendants submitted that no damages should be awarded for past domestic assistance. The basis for the defendants' submission was the factual contention that if the subject accident had created a need for the plaintiff to be given such assistance, any such need would have arisen in any event, due to the plaintiff's subsequent work related physical injuries.
In light of my acceptance of the evidence of Mrs Parrish, as outlined at paragraphs [221] to [222] above, and in light of my assessment of the reasonableness of Ms Kirkham's estimates, which I also accept as being generally applicable to the plaintiff's circumstances, the claim for monetary assessment of this head of damage necessarily arises.
With few exceptions, the medical witnesses did not attempt to quantify this head of damage: Sampco Pty Ltd v Wurth [2015] NSWCA 117; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443. That said, Professor Glozier was adequately qualified, from his perspective as a psychiatrist, to identify a medical basis for the plaintiff's need for assistance. I accept his opinion that the plaintiff has such a need. The quantification of that need, in terms of the hours required, is best undertaken by the evidence of Ms Kirkham, an occupational therapist.
Dr Lahz (at Exhibit "B", Tab 5, p 57), has, on an assessed physical basis, cogently and persuasively identified the plaintiff's need for domestic assistance with elements of personal care and assistance for the household tasks of cleaning, meal preparation, laundry, shopping, transport, maintenance and allied tasks, due to physical and psychological factors.
Mrs Parrish's estimate of the time taken up in her provision of assistance to the plaintiff, to the extent of four to five hours per day, as extracted at paragraph [220] above, which equates to between 28 and 35 hours per week, was not intended to be a precise calculation and I do not regard it to be so.
The tasks to which she allocated estimated times broadly add up to about 16 hours per week, which does not include her background activity in which she hovers about the plaintiff when he is in the company of some retired colleagues, ready to intervene if needed, because of his psychological problems, and the potential for his reactions to escalate in his interactions with others. Mrs Parrish's time estimates must be analysed from several perspectives.
First, given my acceptance of Mrs Parrish's reliability as a witness, her own estimates have significant probative value as she is the provider of those services and she gave her evidence on those matters from a reasonable and reliable vantage point: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55]. I consider her described estimates, totalling some 16 hours per week as outlined at paragraph [279] above, to be understated in light of Ms Kirkham's analysis.
Secondly, it must be recognised that Mrs Parrish's figures were only broad estimates, which in my view, precludes making an undiscounted calculation, as was submitted on behalf of the plaintiff, based on Ms Kirkham's reports dated 3 June 2015 and 4 September 2017: Exhibit "B", pp 111 - 115 and 149 - 152.
Thirdly, I consider that in assessing this head of damage, several other discounting factors need to be taken into account, as follows: (1) there is a need to reflect the possibility that as the plaintiff advances in age, uninjured, he may have needed a measure of personal and domestic assistance in any event, including on an incremental basis, albeit that it appears this possibility may not have arisen for some considerable time: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 - 643; (2) some of the assistance given to the plaintiff was not provided in the form of dedicated blocks of time, but rather, the times have been aggregated from randomly occurring events, which makes the estimate vulnerable to an element of unintentional over-estimation; (3) it must be recognised that with ageing, some people, even when uninjured, become less independent and less able to carry out a full range of indoor and outdoor domestic tasks without assistance.
It is convenient to address that lastmentioned factor at this point. I consider that the most appropriate way of dealing with it is to identify a reasonable age limit for the projection of the claimed weekly expense involved in the claim for future domestic assistance. Guided by authority, I consider that any projection of such damages should be limited to the plaintiff's age of 75 years, that is, a further 23 years. This analysis reveals that that the plaintiff's claim for past gratuitous domestic care and services provided to him is not affected by that discounting factor.
Turning then to the other discounting factors, and recognising that the evidence does not permit precision, the threshold question to be addressed in whether the claimed care exceeds the minimum statutory threshold for assessment, namely 6 hours per week for 6 months: s 141B of the MAC Act.
In my assessment, the description of the assistance tasks described by Mrs Parrish, which I accept as reasonable and understated, compels me to infer that the minimum statutory threshold has plainly been met in this case. This appears to be so even without attempting to take into account the gratuitous assistance provided to the plaintiff by his neighbour with regard to assistance with gardening: T33.11 - T33.36.
It therefore remains to apply a discount to the identified estimate of 16 hours per week. Taking into account those discounting factors, I consider that a rounded down allowance of 2 hours per day, or 14 hours per week is the appropriate means by which to address past gratuitous services whilst being fair to the plaintiff and not unfair to the defendants. The discount is roughly identified as being close enough to 15 per cent.
Applying those 14 hours per week after discount, over 414 weeks, in substitution of Ms Kirkham's tabulation which amounts to $329,554, as calculated in MFI "1", this head of damage is in my view reasonably valued at about 85 per cent of that amount, namely $280,000 in round figures.
I therefore assess the plaintiff's damages for past gratuitously provided domestic assistance in the amount of $280,000.

Future domestic assistance

On behalf of the plaintiff, it was submitted that his damages for future domestic care and assistance should be assessed at $51,393.88 per annum or $988.34 per week, for life, resulting in the undiscounted projected sum as calculated in MFI "1", of $845,722.54.
In contrast to the above submission, on the defendants' behalf it was submitted that no such damages should be awarded. That submission proceeded upon the alternative bases that there was no future accident-related need for either gratuitous or paid domestic assistance, or alternatively, that any such need, if found, is due to the plaintiff's subsequent work related physical injuries. I do not accept the defendants' submissions for the reasons that follow.
Professor Glozier, the expert retained by the defendants, expressed the opinion that the plaintiff is unable to live independently, and that from a psychiatric perspective, the care provided by Mrs Parrish was both reasonable and necessary, and will be needed for the foreseeable future: Exhibit "B", Tab 11, p 187.
Whilst Professor Glozier's estimate of 3 hours per day is not to be regarded as being authoritative for assessment purposes, for reasons already stated, Ms Kirkham's estimates are reliably relevant because, as an occupational therapist, she is suitably qualified to provide such considered time estimates. She was not required for cross-examination to justify her assessment.
Ms Kirkham's estimates, which have been analysed at paragraph [227] above, amount to 19.55 hours per week.
I consider that in order to avoid overcompensation in relation to assistive tasks that will necessarily vary in frequency and time taken, Ms Kirkham's estimate requires rounding down to 2 hours per day, or 14 hours per week. I find that to be a reasonable basis for assessment in this case.
Ms Kirkham identified the rates for future paid domestic assistance as varying between $46 and $55 per hour. I consider it would be unreasonable to quantify this head of damage at the statutory hourly rate based on average weekly earnings because of Mrs Parrish's own physical issues, she has an inability to provide the full range of assistance that the plaintiff requires. I therefore consider that a hybrid commercial rate, assessed at $45 per hour, would be a reasonable basis for assessment.
The future projection period has already been discounted for the possibilities of age related debilitation occurring so as to create a need for domestic assistance in any event, and for the possibility that a future housing downsize might reduce the incidence of need. In my view those factors have been sufficiently accommodated by reducing the overall period for projection from 33 years to 23 years.
Given that discount, and at the risk of double discounting, I consider that a further conventional discount of 15 per cent on the projected amount, for possible adverse vicissitudes that might occur over the ensuing 23 years, is an adequate allowance for such factors.
The projection of the value of 14 hours of care per week at $45 per hour, or $630 per week, at 5 per cent over 23 years (x 721.2) is $454,356. After discounting 15 per cent for possible adverse vicissitudes, this yields the amount of $386,202, which I round off to $385,000.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $385,000.

Future out-of-pocket expenses

On behalf of the plaintiff, it was submitted that his damages for future out-of-pocket expenses should be assessed in the amount of $235,180.82: MFI "1". The basis for that assessment was the projection of varying weekly amounts aggregated with some specific lump sum allowances, as follows: 1. GP consultations, monthly, at $100 per consultation, for life, amounting to $19,746.92. This claim was based on the recommendation of Dr Higgs: Exhibit "B", Tab 3, p 15; 2. Specialist consultations, at a cost of $250 per year, amounting to $4113.94. This claim was based on the recommendation of Dr Higgs: Exhibit "B", Tab 3, p 15; 3. Total knee replacements, and associated expenses, at a total cost of $70,000. This claim was based on the recommendation of Dr Higgs (Exhibit "B", Tab 3, p 15), and the recommendation of Dr Lahz: Exhibit "B", Tab 5, pp 55 - 57; 4. ADAPT program, at a cost of $15,000. This claim was based on the recommendation of Ms Kirkham: Exhibit "B", Tab 7, p 156; 5. Psychological treatment, at a cost of $370 per consultation, for 12 sessions, amounting to $4440. This claim was based on the recommendation of Dr Parmegiani: Exhibit "B", Tab 1, p 4; 6. Antidepressant medication, at a cost of $37 per month, for life, amounting to $7306.36. This claim was based on the recommendation of Dr Parmegiani: Exhibit "B", Tab 1, p 4; 7. Pain medication, claimed as a buffer of $100 per month, for life, amounting to $19,746.92. This was argued to be a reasonable allowance that was not otherwise quantified by medical evidence; 8. Equipment, at a cost of $1996.76 per annum, amounting to $32,858.22. This claim was based on the recommendation of Ms Kirkham: Exhibit "B", Tab 7, p 155; 9. Podiatrist, at a cost of $60 per month, for life, amounting to $11,848.15. This claim was based on the recommendation of Ms Kirkham: Exhibit "B", Tab 7, p 156; 10. Occupational therapy assessments and intervention, at a total cost of $1080. This claim was based on the recommendation of Ms Kirkham: Exhibit "B", Tab 7, p 156; 11. Physiotherapy / hydrotherapy / gymnasium program, at an annual cost of $1000 (conservatively assessed as the average cost of a gymnasium membership per year), amounting to $16,455.77. This claim was based on the recommendation of Ms Kirkham (Exhibit "B", Tab 7, p 156), and the recommendation of Dr Lahz: Exhibit "B", Tab 5, p 56; 12. Travel needs, and more particularly, the requirement to travel business class as and when the plaintiff needs to travel, claimed conservatively as a buffer of $2000 per annum, amounting to $32,911.54. This claim was based on the recommendation of Dr Lahz: Exhibit "B", Tab 5, p 56.
Those claimed amounts were submitted to total the sum of $235,180.82: MFI "1". The correct mathematical total is $235,507.82.
In contrast to that submission, on behalf of the defendants, it was submitted that any such damages should be assessed in a much reduced sum, which was not fully developed or calculated in the defendants' submissions.
Although the calculations and projections submitted on behalf of the plaintiff are based on reasoned recommendations extracted from the evidence as cited, I consider that to allow those claims in full, without discount, would be likely to result in overcompensation.
This is because treatments are likely to change over time in response to evolving circumstances, and the intensity and timing of treatment is therefore subject to ad hoc variations. Furthermore, the travel claim is necessarily imprecise and not fully explored in the evidence. These factors aggregate to suggest that a pseudo-mathematical approach resembling precision is contraindicated. Instead, guided by the evidence comprising the recommendations, which underpins the cited submissions, I consider it more appropriate to assess a lump sum buffer amount which would serve to meet those sources of future expenditure, but at the same time incorporating a measure of discount to take into account the imponderables that have been identified. I consider the appropriate buffer allowance to be $150,000.
I therefore assess the plaintiff's damages for future out-of-pocket expenses in the buffer amount of $150,000.

Past out-of-pocket expenses

The parties have experienced considerable difficulty obtaining what was required from the workers' compensation insurer for the purpose of seeking to reach an agreement on the amount of the plaintiff's past out-of-pocket expenses: T132.50 - T133.7.
That difficulty continued in its effect at the further listing on 7 September 2018, and it was only partly resolved at the listing on 12 September 2018, because the total amount of claimable out-of-pocket expenses are dependent upon findings of fact to which injuries were related to the subject accident.
That difficulty appears to have been founded upon the administrative approach taken by the workers' compensation insurer in assigning separate file and claim numbers to the plaintiff's claimed injuries, as follows: 1. Claim number 770519008525, was said to relate to soft tissue injuries to the plaintiff's left knee, groin and hip, for which medical expenses totalled $102,916.86; 2. Claim number 77051903956, was said to relate to soft tissue injuries to the plaintiff's right knee, for which medical expenses totalled $138,817.45; 3. Claim number 770519072899, was said to relate to soft tissue injuries to the plaintiff's neck and back, for which medical expenses totalled $20,568.59; 4. Claim number 770519076463, was said to relate to post-traumatic stress disorder, for which medical expenses totalled $25,589.86.
The total of the above amounts is the sum of $287,892.76, to which must be added a further amount of $1993.10 for refundable payments made by Medicare: Exhibit "3". The plaintiff's written submissions identify an additional amount of $55,360.04 which must be paid to the compulsory third party insurer pursuant to s 83 of the MAC Act. I therefore provisionally include that amount in the assessment of out-of-pocket expenses pending any adjustments required by the anticipated final agreement by the parties on those matters. This yields a provisional total sum of $345,245.90 for the plaintiff's out-of-pocket expenses.
That provisional assessed sum may need to be adjusted as a consequence of my findings that the plaintiff's claim of injury to his knees, his groin, his left hip, his neck and his back, and his post-traumatic stress disorder, are all caused by the subject accident irrespective of whether those injuries were fresh injuries, or whether they comprised permanent aggravations which rendered pre-existing underlying pathology symptomatic, or whether in the case of PTSD, it caused debilitating symptoms due to an underlying predisposition in the plaintiff for this to occur.
I therefore assess the plaintiff's damages for past out-of-pocket expenses in the provisional or interim amount of $345,245.90, a figure which is to be updated before the entry of final judgment.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $340,000 (b) Past economic loss $620,000 (c) Past loss of superannuation $55,800 (d) Fox v Wood (interim) $38,314.06 (e) Future economic loss $720,097 (f) Future loss of superannuation $97,789 (g) Past domestic assistance $280,000 (h) Future domestic assistance $385,000 (i) Future out-of-pocket expenses $150,000 (j) Past out-of-pocket expenses (interim) $345,245.90 Total $3,032,245.96

Before the entry of final judgment the parties should check my mathematical calculations and in particular the past economic loss calculation which may affect the Fox v Wood damages that relate to the precise periods during which the plaintiff received weekly workers' compensation payments.

Application of s 151Z of the Workers' Compensation Act 1987

Before the entry of a final judgment, it also remains for the parties to identify the practical effect of the application of s 151Z(2) of the WC Act. At the listings on 7 and 12 September 2018, the parties indicated that it was necessary for my findings on the damages issues to be made available in order that they may identify how the provisions of s 151Z(2) of the WC Act affect the final outcome of the proceedings. After considering my reasons for decision the parties should bring to Court short minutes that reflect my findings so that final orders may be made for the entry of judgment in the plaintiff's favour in a finite amount.

Costs

I will hear the parties on the question of costs after they have had the opportunity to consider these reasons for decision.

Interim orders

I make the following interim orders: 1. The plaintiff's damages are provisionally assessed in the interim sum of $3,032,245.96; 2. That interim sum is to be adjusted for the correct amounts to be allowed for Fox v Wood damages and out-of-pocket expenses, and to allow for the adjustment required by s 151Z(2) of the Workers Compensation Act 1987, after the parties have had the opportunity to consider the effect of the findings of fact identified in these reasons; 3. The proceedings are listed for mention at 10.00am on 21 September 2018 for the purpose of the parties bringing in short minutes dealing with the required adjustments that reflect the findings of fact, at which time final judgment and ancillary orders will be entered, or alternatively, to set a timetable for those matters to be further argued for resolution.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2018

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Judgment (53 paragraphs)

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Cases Cited (44)