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Pearce claimed injuries to his head, chest, knees and back. His principal financial claim was that cognitive impairment caused by the accident prevented him from working as a solicitor, permanently. His case included alternative explanations: concussion or brain injury, accident-related depression and anxiety, asthma, and sleep apnoea ([38]–[40]).

The evidence was complicated by significant pre-accident health and employment history. Pearce had previously sustained a head injury in a 1981 car accident, had a long history of alcohol abuse, and had experienced depression and mood disorders. He also had asthma and had taken time off work shortly before the 1996 collision because of an asthma recurrence ([25]–[31], [87], [92]). At the same time, the evidence was that he had resumed legal practice in 1995 and was working as a solicitor before the collision ([29]–[30], [32]).

The court accepted that Pearce experienced depression after the accident and that he had some accident-related knee and chest injury. It was not satisfied that the accident caused brain injury, asthma recurrence or sleep apnoea, or that later cognitive deficits were attributable to the collision ([68]–[72], [98]–[100]). It found a limited period of accident-related incapacity for legal work and awarded $150,243 in total damages ([99]–[116]).

The trial began in July 2000, was adjourned to allow psychometric testing, and recommenced in November 2001. O’Brien DCJ delivered judgment on 14 December 2001 ([4]).

Why the court decided this way

The main question was causation: whether the accident caused the enduring cognitive problems that, according to Pearce, made him unable to practise law. The judgment set out two general propositions. A negligent defendant takes a plaintiff as found, including a plaintiff with particular susceptibility or an existing disability. It also referred to the defendant’s role in disentangling disabilities traced to causes unrelated to the accident ([95]). Separately, the court said that whether an act can be regarded as a cause is a matter of common sense and experience ([96]).

Those propositions did not determine the factual issue by themselves. The court weighed the competing medical opinions and the chronology. It noted that the early clinical records and imaging did not reveal significant injury, and that the bulk of the medical evidence supported a finding that Pearce had not suffered concussion ([48], [61]–[68]). Among the matters considered were that he had not reported losing consciousness, there was no retrograde amnesia, and there were no early findings demonstrating brain injury.

Professor German, who had treated Pearce over a lengthy period, initially considered that the post-concussional symptoms and depression had resolved. By January 1998, he had reported that Pearce had recovered and could return to full-time legal work. He later revised his view after receiving observations from Mr Black about Pearce’s performance on a pro bono matter ([42]–[43], [50]–[52], [67]). The judge gave Professor German’s longitudinal observations considerable weight, but did not accept his later view that the accident had caused frontal-lobe damage ([41], [67]–[68]).

The court also considered other possible contributors to cognitive function, including chronic obstructive pulmonary disease, sleep apnoea and alcohol-related history ([55], [60], [65]–[68]). It found that the evidence did not establish that asthma or sleep apnoea had been caused by the accident ([69]–[72]). The court accepted Dr Haywood’s test results but agreed with Mr Hunt that the results obtained four years after the collision could not be related to the accident-related head injury alleged, given the nature of the injury and the other possible influences ([98]).

Credibility was another part of the evidentiary assessment. The judge identified inconsistencies and examples of apparent exaggeration, considered the surveillance footage, and referred to Pearce’s history of alcohol use and the similarity between some alcohol-related symptoms and those he attributed to the accident ([73]–[85], [93]). The court’s finding was not that Pearce had no symptoms. Rather, it was not satisfied that the claimed ongoing cognitive deficits were caused by the collision.

The result was a distinction between temporary and continuing effects. The court accepted that the shock of the collision, depression, knee injury and disruption to Pearce’s new practice contributed to a period of incapacity. It found him incapacitated from working as a solicitor until the end of September 1997, allowed time to re-establish a practice, and compensated loss of earnings until the end of March 1998 ([99], [110]). It rejected the claim for later accident-related cognitive incapacity.

Before and after state of the law

The judgment did not purport to announce a new legal test. Its legal discussion relied on established authorities concerning the “take your victim as you find them” principle, the allocation of the task of disentangling causes, and common-sense causation.

Before the decision, the authorities identified by the judge included Dulieu v White & Sons, Watts v Rake, Purkess v Crittenden and March v E & M H Stramare Pty Ltd. At [95], the court cited Dulieu and Watts for the proposition that damages are assessed in light of the particular plaintiff’s circumstances, including susceptibility or a pre-existing disability. It also cited Watts and Purkess in discussing the defendant’s responsibility to disentangle disabilities attributable to causes in which the accident played no part. At [96], it cited March for the role of common sense and experience in deciding causation.

After the decision, as far as the supplied judgment shows, the legal propositions remain those stated by the court and the authorities it cited. The judgment applies them to its evidence rather than setting out a newly formulated doctrine. The case’s catchwords accordingly describe the cognitive-impairment issue as turning on its own facts. The materials supplied do not include later judgments discussing or applying Pearce v Burke, so no conclusion about subsequent treatment can be drawn here.

For damages, the court applied s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 as it stood for the assessment in this case. It described non-pecuniary loss as a proportion of the maximum amount, assessed according to severity, and said the maximum was reserved for a most extreme case ([102]–[104]). It assessed the loss at 15 per cent of a most extreme case and then applied the statutory amount adjustment described at [108]–[109]. This statutory calculation is part of the historical judgment and should not be assumed to state current limits.

Key passages with plain-English translation

At [95], the court stated that “negligent defendants must take their victims as they find them.” In plain English, a plaintiff’s particular vulnerability or pre-existing condition does not, by itself, mean that injury caused by negligence is valued as though the plaintiff were an average person. The judgment also discussed the burden of separating accident effects from unrelated causes.

At [96], the court said causation is “a matter of common sense and experience.” This explains that the court approached the causal question as a practical evaluation of the evidence, rather than treating a medical label or opinion as automatically decisive.

At [68], the judge ruled out accident-related brain injury as a cause of Pearce’s mental symptoms. That finding addressed the claimed physical mechanism, not whether Pearce experienced distress or other symptoms after the collision.

At [98], the judge said he was “not satisfied on the balance of probabilities” that the claimed cognitive deficits were caused by the accident. This was the key conclusion on the claim for continuing cognitive impairment. It followed the court’s consideration of medical evidence, alternative explanations, timing and credibility.

At [99], the court nevertheless found that Pearce should receive general damages for pain and suffering caused by knee and chest injuries and depression. It also found work incapacity for a limited period. In plain English, rejecting permanent cognitive incapacity did not mean rejecting every injury or loss claim.

At [110]–[112], the court calculated past earnings loss through March 1998, using the plaintiff’s proposed earnings schedule, which the defendant had not disputed, and adding interest. The court also discussed disability insurance payments and concluded that, on the evidence before it, they did not relieve the tortfeasor of liability for the full calculated amount ([111]).

What fact patterns trigger this precedent

The judgment is most relevant as an example where a plaintiff alleges long-term cognitive or psychiatric effects after a motor vehicle accident, but the evidence includes several possible causes and a disputed chronology. The case involved a claimed head injury without clear early evidence of concussion, later neuropsychological testing, competing expert opinions, and other health and personal-history factors that might affect cognition ([48]–[68]).

It may also be relevant where a plaintiff has a pre-existing vulnerability and the parties dispute how to distinguish accident-related effects from unrelated conditions. The court’s discussion at [95] recognises the take-your-victim-as-found principle while also addressing the need to disentangle causes where the evidence supports doing so.

The factual boundaries matter. The court did not find that Pearce had suffered no post-accident depression, or that he had no physical injury. It accepted some temporary accident-related depression, knee symptoms and chest pain, and awarded damages for them ([99]–[107]). It rejected the claim that the accident caused the ongoing cognitive deficits and rejected the asserted causal links to asthma recurrence and sleep apnoea ([68]–[72], [98]).

This was a first-instance assessment of particular evidence. The judgment itself says the issue turned on its own facts. It should not be treated as establishing that cognitive impairment without loss of consciousness can never be accident-related, or that a plaintiff with pre-existing conditions cannot recover for an aggravation. Those broader propositions are not stated in the judgment.

How later courts have treated it

The supplied judgment does not identify later decisions applying, following, distinguishing or otherwise treating Pearce v Burke. Its case references list authorities cited in this decision, but do not provide subsequent treatment. The judgment’s “Last Updated” date is 29 November 2006, which is a document-update detail and does not establish how later courts treated the case.

Accordingly, the supported account is limited: O’Brien DCJ cited Dulieu v White & Sons, Watts v Rake and Purkess v Crittenden on susceptibility and disentangling causes at [95], and March v E & M H Stramare Pty Ltd on causation at [96]. The supplied text does not establish any later precedential relationship between Pearce v Burke and another decision.

Still-open questions

Several questions are left unresolved by the judgment or cannot be answered from the supplied text. First, the court’s conclusion depended on its assessment of the particular medical evidence, timing and credibility. The judgment does not set out a general threshold for proving cognitive impairment after a collision or resolve what evidence would suffice in a different case.

Second, the judgment found that accident-related depression caused incapacity for a limited period but rejected later accident-related cognitive incapacity. That distinction was fact-specific. The decision does not establish a general rule for how long depression-related work incapacity will persist or how it should be separated from other causes.

Third, the court’s analysis of asthma and sleep apnoea depended on the available medical evidence and gaps in the causal history, including uncertainty about the contribution of immobility to weight gain ([69]–[72]). The judgment does not answer how different or more complete evidence might affect causation in another case.

Finally, the supplied materials do not establish how later courts have treated this decision or what statutory amounts apply now. The case’s damages calculation is tied to the legislation and figures discussed in the judgment in 2001 ([102]–[109]).

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.

13 Since September 1998, the plaintiff had been treated by Mr Laurie Shortland who is trained in acupuncture and naturopathy. He was given acupuncture, massage and spinal manipulation.

14 The plaintiff testified that his back is still "sore all over". He now alternates treatment for his back between Mr Shortland who performs spinal manipulations and Mr Kevin Cannon, who is a remedial masseur. The plaintiff claimed that he required another 18 months of treatment.

15 The plaintiff testified that as a result of his knees hitting the dashboard, he could hardly walk and was stiff and sore. There was no bleeding and no abrasions. Dr Buttsworth noted that the plaintiff's knees were slightly tender over the patella. He was referred to Dr Janes, an orthopaedic surgeon in February 1997 because of the problems he was having with his knees. His left knee has now "settled down" and "is probably okay". The plaintiff underwent further tests and radiography and was also injected with Kenacort and Marcaine for pain. He had an arthroscopy on his right knee and testified that he needs a replacement of his right knee.

16 The plaintiff claimed that because he was taking anti-inflammatory medication, that he developed "colonic problems". He underwent a colonoscopy which did not reveal any abnormality.

17 The plaintiff testified that his head injury was the "most horrific thing". He testified that he did not know if there was bruising to his head. The report of Dr Buttsworth of his examination of the plaintiff on 14 April 1996 specifically notes that there was no bruising to the vertex of the head.

18 The plaintiff testified that for the first two years after his accident the medical practitioners were experimenting with drugs for depression. The plaintiff testified that he thought he was seeing and hearing things. He was unable to read, could not retain information and kept forgetting things. He experienced "weird, disconnected, vivid dream nightmares", sleep disturbance and paranoia. At one stage, he felt suicidal. He has been under the care of Professor German, a psychiatrist, since about April 1997 for problems he claims are associated with the accident.

19 The plaintiff testified that he still has a lot of difficulty with reading and writing, and still takes medication for depression.

20 After the accident, the plaintiff testified that he became "a hermit" and had confined himself to the house. He said that he would "pile up about 20 plates of food and sit there and eat and watch TV". He said that 10 minutes after watching a video he was unable to recall its content.

21 He is now attempting to lose weight so that he can undergo a knee replacement. He is able to swim and perform leg exercises in the water but still walks with "a rolling gait because of that knee".

22 The plaintiff has not practised law since the accident. His practising certificate has lapsed. Mr Black, a solicitor by whom the plaintiff had been employed previously, offered the plaintiff some pro bono work in 1997 but the plaintiff was unable to perform this. He testified that he had "no way of prioritising things, planning, sorting out ...". He found that he was very slow and unable to function. He could not sustain concentration. Although the plaintiff gave no evidence that he suffered from headaches, he complained of such to various medical practitioners.

23 Prior to the accident, the plaintiff's intention was to set up a small legal practice and work until he was 70 years of age. He had no intention of going into a big partnership or going back to corporate work. He wanted to have a small, quiet practice which he could handle. He said he was not "an ambitious man".

24 Since the accident, the plaintiff has been receiving payments from a disability insurance policy with National Mutual.

30 He testified that just prior to his accident, he was in good health. He weighed about 86 to 88 kilograms, he was swimming and walking regularly and was not drinking alcohol. He described himself as being in "top shape", "the best shape I've been in for 20 years, probably".

31 In early 1996, the plaintiff suffered from attacks of bronchial asthma. He was treated by Dr Buttsworth with steroids, penicillin and "puffers". This condition had cleared up prior to the accident.

36 Professor German said that the plaintiff's cognitive health was intact when he regained his practice certificate in 1995. He was obsessive about exercising and his weight was appropriate for his build. When he saw the plaintiff in April 1997, he was overweight, sombre, very slow in his speech, tearful and he "felt that his state of health had collapsed complexly around him".

37 Dr Purdie took over as the plaintiff's general practitioner in March 1998. She has seen him on a three weekly basis since then. The frequency of consultations is due mainly to the plaintiff's stress and anxiety about his medical condition. Dr Purdie described the plaintiff's inability to focus and to stay on the point of a conversation. She said a 15 minute consultation would end up taking 30 minutes. She said that the plaintiff seemed unable to grasp the concept of a low fat diet in that he did not seem to understand that such a diet meant cutting out off high fat foods. (Given the plaintiff's objectively assessed superior intelligence, I do not find this to be in any way illustrative of any cognitive deficits). Dr Purdie could not see the plaintiff's condition improving over time and considered that he is unfit to work as a solicitor.

54 Her tests revealed that the plaintiff's current level of intellectual function placed him in the superior range. His speed of information processing was lowered as was his manual motor dexterity. He was slow to form a plan or strategy to complete a task and "this can result in inefficient verbal memory and new learning". In summary, Dr Haywood reported on 5 June as follows:

60 Overall, Professor German was of the view that the plaintiff had suffered diffused brain damage from his drinking and that the impact to his head in the accident shook up the entire brain and produced a "subthreshhold effect" so that the combination led to "unexpected cognitive compromise". This opinion differs from that he expressed in 1993 to the effect that the plaintiff had not suffered brain damage as a result of his drinking. The plaintiff had been a heavy drinker and had suffered blackouts as a result, had already been head injured in the 1981 accident and had "preceding symptoms of substance" which meant that he had pre-existing brain damage. Professor German testified that given that he had pre-existing comprise of his higher-level brain functions, "it takes very little to tip them over into a state where they no longer can support these functions".

61 Dr Mustac, a psychiatrist, Dr Gubbay, a neurologist, and Mr Hunt, a neuropsychologist, who were witnesses for the defendant, were of the view that the plaintiff did not suffer concussion in the accident. Factors bearing on their opinions included the impact to the head in the accident as described by the plaintiff (including the lack of physical signs to the head), the facts that he did not lose consciousness, he was not hospitalised, he was able to recall the accident in detail, there was no retrograde amnesia and x-rays and a CT scan taken shortly after the accident did not reveal any brain injury.

62 When Dr Gubbay saw the plaintiff on 29 March 2000, the plaintiff presented with clear recollections of his problems and the accident, and was able to speak fluently and in an organised fashion. On that day, Dr Gubbay was of the view that the plaintiff had no obvious impairment of memory or of his intellectual functions. Dr Gubbay was of the opinion that the plaintiff's residual headaches "appear to be accident related and caused by the stress of the accident rather than due in to any injury to his brain". This view is confirmed by the opinion of Dr Kermode, a neurologist, whose report dated 25 June 1998, was tendered on behalf of the plaintiff. Dr Kermode considered the plaintiff's headaches were tension produced and excluded "structural cause".

63 Dr Gubbay considered that the plaintiff did not have concussion as he could remember all the details of the accident quite clearly. There was no retrograde amnesia and he assumed that any brain injury was "quite trivial" and had no after effect. In a later report dated 12 July 2000 and after reviewing a report from neurologist, Dr Susan Ho, dated 17 March 2000, Dr Gubbay agreed that frontal lobe damage from the accident is "almost impossible" given that the plaintiff did not lose consciousness and was "certainly not concussed". He opined that it is "highly unlikely that the blow to [the] head would have resulted in any cognitive impairment because [the plaintiff] was not even concussed and had no other collateral evidence of brain injury after the accident".

64 Dr Mustac was of the view that a period of post-traumatic amnesia of a week would be required to cause any significant head injury. He stated that epidemiological research indicates that the period of post-traumatic amnesia is directly related to the severity of the head injury. In this case, there was no loss of consciousness and no period of post-traumatic amnesia and he agreed with Dr Gubbay that the head injury was not significant.

65 Mr Hunt is an experienced neuropsychologist who works regularly with head injured people. He was of the view that on the basis of the information supplied to him, the plaintiff did not sustain "a head injury of sufficient intensity to result in any persisting demonstrable neuropsychological impairment". He did not have the opportunity of testing the plaintiff because any result would be affected by the previous testing. However, he reviewed Dr Haywood's test results and commented that chronic alcoholism, psychological factors, sleep apnoea and asthma could influence her results. He testified that it did not make neuropsychological sense that even if there were subtle changes in cognition in terms of attention concentration or the speed of information processing, that they would be evident four years after the accident, based on the sort of head injury suffered. None of the indicators, such as loss of consciousness, post-traumatic amnesia and lack of neurological signs and symptoms at the time of the accident, support the plaintiff having long-term neuropsychological impairment. Ultimately, Mr Hunt was of the view that it would be speculative to attribute the results of neuropsychological testing to the accident four years previously when the plaintiff had a number of health conditions, which could have impacted on those results.

66 There is evidence, particularly from Professor Musk, to the effect that asthma can cause cognitive impairment. There is evidence from Dr Stewart Cullen, consultant physician in sleep medicine, that the plaintiff suffers from sleep apnoea. This can produce fatigue, lethargy and difficulty working and neuropsychological functions can be affected to varying degrees. Dr Cullen was of the view that the sleep apnoea caused a 3 per cent to 5 per cent impairment of the plaintiff's intellectual performance.

76 After reading the report by Professor Hollingworth dated 3 June 1998, the plaintiff wrote to the Medical Board complaining about certain of the matters contained therein. One of his complaints referred to the mention of broken fingers as part of his prior medical history. The plaintiff testified that he did not mention broken fingers to Professor Hollingworth and he was concerned to ensure that the report was accurate. The plaintiff testified that after the complaint to the Medical Board, he reflected on the matter and decided that he would not pursue the complaint. He wrote a letter dated 18 September 1998 requesting that Professor Hollingworth consider amending his reports to set out the "true facts" contained in some correspondence he enclosed (presumably setting out what the plaintiff considered to be the situation). Mr Black's observations of the plaintiff were from November 1997 until about May 1998. However, they contrast dramatically with the lucid, detailed, well-constructed letter, which the plaintiff wrote to the Medical Board complaint about Professor Hollingworth's assessment of him in June 1998. Certainly, nothing in that letter reflects any of the difficulties which Mr Black spoke of and, in my view, the letter reflects detailed recall of the circumstances of the consultation and a careful examination of the matters the subject of the complaint.

77 In his letter to the Medical Board, the plaintiff described himself as being "seriously injured" in the accident and stated that he almost died on a couple of occasions.

78 The plaintiff also threatened to report Dr Mustac to the Medical Board when he was questioned about his drinking habits.

79 These matters point to the plaintiff's pre-occupation with his litigation arising out of the accident. This is understandable to a certain extent and may be explicable given the plaintiff's legal training. However, they do not reveal a person who is prone to rambling and/or thought disorder.

80 The plaintiff also complained in evidence that his consultation with Professor Hollingworth involved 50 minutes rapid-fire questions and a "two second look over me". This was disputed by Professor Hollingworth who testified that his review of the plaintiff was in accordance with his usual practice with which patients of less intelligence than the plaintiff had coped. The plaintiff complained to Dr Mustac that he was sick of being harassed when questioned about his drinking habits. These complaints reveal a man who is not prepared to accept any responsibility to his stated symptoms which is not favourable to his position in the litigation.

81 A surveillance videotape taken on 13 and 14 July 2000 reveals the plaintiff walking apparently without a limp and any obvious difficulty, swimming several laps of a pool without pausing (albeit slowly) and driving a car. Professor Hollingworth was of the view that the swimming was likely to cause pain to a person with the plaintiff's knee condition and that the rate of walking and swimming suggests that his asthma was not, at that time, "a serious problem". The clinical evidence reveals significant degeneration to the plaintiff's knees, particularly his right knee. However, I have grave doubts that the plaintiff experienced the degree and duration of pain which his evidence suggests.

82 The plaintiff was convicted of his third offence of driving under the influence of alcohol on 28 May 2000. His driver's licence was suspended for life. The surveillance videotape recorded in part on 14 July 2000 shows the plaintiff driving a car to and from his local shops. That was a flagrant breach of an order of the court and prima facie an offence. I have doubts about the plaintiff's overall credibility given that he was apparently prepared to break the law in this way at all, let alone so shortly after his conviction. I reject the suggestion of the plaintiff's counsel that this episode was an illustration of the plaintiff's impaired judgment or "foolish behaviour".

83 According to the plaintiff, he had two "incidents" involving alcohol since his accident. These were in 1998 and 2000. The former involved a drinking session and an assault on a bar man, and the latter the driving under the influence offence. He explains each on the basis that he was under great stress and the incidents were isolated and not indicative of his general drinking habits. I accept that it is a continuing battle for alcoholics not to drink alcohol. There may well be times of relapse, either for a period of time or on isolated and unrelated occasions. The plaintiff also told Mr Jackson and Dr Mustac that he had not had a drink for "yonks". It is a matter of common sense, supported if necessary by the evidence of Professor German and Dr Mustac, that alcoholics often underestimate their alcohol consumption and can hide their addiction. It is not unreasonable to infer that given the plaintiff was apprehended by the police on two separate occasions, that there were other times when he was drinking when he did not come to the attention of the police.

84 The plaintiff testified that he started to drink when he was 17 years old. He said that it did not affect him in the early years but admitted that he would wake up feeling "seedy". He said he started drinking spirits when he was in his thirties. The effects included inadequate sleep, fatigue, difficulty in concentration, confusion, difficulty in working, bad dreams. These effects are identical to many of the symptoms the plaintiff now claims are accident related. The point of this analysis is that I consider that the plaintiff has understated his alcohol consumption. The fact that a number of liver function tests was carried out since the accident and resulted in normal readings does not cause me to doubt this finding as those tests are to identify if there is damage to the liver which is only one possible side effect of drinking too much.

85 In summary, because of the factors mentioned above, I consider that the plaintiff has exaggerated at least some of his symptoms and has sought to overplay the significance of the accident on his physical and mental well-being.

86 The evidence both from the plaintiff and a former client, Mr Donnelly, but more importantly from Mr Black, supports a finding that when the plaintiff commenced practice on his own account in 1995, he was not burdened with the cognitive deficits from which he described in evidence.

87 There is evidence that around the time that he was suspended from practice that he was incapable of conducting a practice even as an employed solicitor. This was attributed to his alcoholism. In support of the plaintiff's application for the renewal of his practising certificate, Professor German reported on 2 March 1993 that the plaintiff had his alcoholism under control but that he would continue to suffer from cyclothymia (mood swings) and manic depression which could be managed under medical supervision. Further, he stated that a CT scan was normal, he could not fault his brain-related performance and that the plaintiff had not sustained any brain damage from his drinking, nor, as far as he could see, from the 1981 road accident. He testified to the effect at the Barristers Board hearing.

88 The plaintiff testified that since then he has remained virtually abstinent from alcohol. He returned to practice and the unchallenged evidence including from the plaintiff himself is that he was able to perform satisfactorily in that role. He had practised on his own account for about eight or nine months before taking time off work in March 1996 due to a recurrence of his asthma. The accident happened in April 1996. The medical evidence is scant as to his symptoms and treatment until he started seeing Professor German in April 1997. Professor German originally concentrated on the plaintiff's depression, which he said resolved by September 1997 [at the latest] due to prescribed medication. Professor German revised his opinion as to his diagnosis after receiving the report of Mr Black about the plaintiff's performance as a law clerk on a pro bono matter. Professor German relied also on his own observations of the plaintiff at that time, contrasting them with his observations made in consultation before the accident.

89 Dr Buttsworth's report dated 14 October 1997 refers to the plaintiff continuing to suffer problems with memory and concentration and "a variety of symptoms from his head injury". These persisted according to Dr Buttsworth's last report dated 2 March 1998. The difficulty with Dr Buttsworth's reports is that he could not be cross-examined as to whether the symptoms referred to in his reports were objectively observable by him or merely reported to him by the plaintiff. Minimal weight can be attached to them for this reason.

90 Professor German's report in January 1998 was to the effect that the plaintiff had recovered from his "depression/post-concussional" syndrome. The plaintiff had, in the meantime, attempted a pro bono case and the evidence is to the effect that he was incapable of performing in a competent way. This assessment was made over a period of some six months. He was reviewed by Professor German again in or around October 1998 when Professor German was of the view that his memory and concentration remained impaired although not as badly as previously. Professor German was significantly influenced by the observations made by Mr Black in revising his opinion as to the cause of the plaintiff's condition.

91 Professor German reported again on 16 November 1999 to the effect that the plaintiff was depressed but had again been prescribed the steroid for his asthma which Professor German believed partially caused his initial depression. In July 2000, Professor German reported that the plaintiff was unable to keep track of the point of discussion, had become garrulous and rambling, wandered off or could not recall the point of a conversation, an inability to cope with abstract concepts. He stated that the plaintiff had continually perseverated since March 1997.

92 The plaintiff had a pre-existing history of depression, anxiety, cyclothymia, manic depression and alcoholism. I have found that he did not suffer brain injury in the accident. The accident caused pain to his knees and chest. The accident also had an emotional effect on the plaintiff in that he thought he was going to die. He had a predisposition to asthma. I find that the plaintiff became pre-occupied with this litigation. This much is apparent by his follow-up of medical interviews with correspondence supplementing information reported by him and/or correcting what he considered to be incorrect information in the medical reports and his threats to Professor Hollingworth and Dr Mustac to report them to the Medical Board for perceived wrongs, which I consider he believed would impact adversely on his litigation.

93 In view of the doubts I have as to the plaintiff's credibility, coupled more particularly with the surveillance videotape evidence (discussed above), I find that the plaintiff has exaggerated his knee symptoms. I have listened to the audiotapes of the plaintiff's interviews with Dr Mustac (about two hours). In my view, his account of his personal and work history and life was generally lucid, if a little prolix, and was otherwise unremarkable. During his first interview in May 2000, he did not sound depressed or unhappy and joked with Dr Mustac from time to time. Therein, he expressed that he had much difficulty in coping with his asthma. He spoke many times of having difficulty in sleeping and resting and that made him feel constantly fatigued and mentally tired. These are complaints which he constantly made to other of his health professionals. His second interview with Dr Mustac was in October 2001, 15 months after he had given evidence at his trial and shortly before his trial recommenced. He sounded flat to me but was still reasonably lucid and still prolix. He terminated the interview when Dr Mustac posed questions relating to his drinking, claiming that he was being harassed and threatened to report Dr Mustac to the Medical Board. In the meantime, he had done a battery of psychological tests administered not only for his trial purposes but also required by his disability income insurer.

94 The difficult issue to determine is whether the psychological symptoms, particularly the compromise to the plaintiff's executive brain function which is the fundamental reason he cannot work as a solicitor, were caused or exacerbated by the accident and if so, to what extent and for how long. I am prepared to accept Professor German's view that the accident was responsible for around 50 per cent of the depression. This resolved with medication at the latest by September 1997. I accept that the plaintiff suffered pain to his knees which immobilised him to a certain extent. There is no medical diagnosis of any back injury and the symptoms resolved after treatment by Mr Shortland. His asthma (unrelated to the accident) was troubling him and pre-occupied his thoughts. He had sleep apnoea (unrelated to the accident) and as a result was constantly fatigued. This was all overlaid on the plaintiff's pre-disposition to mood swings and anxiety. The plaintiff had a significant tax bill (around $85,000 at the end of the 1996 financial year and $140,000 at the end of the 1999 financial year) which had been steadily accumulating for some years. He had a $40,000 debt to the bank and owed other creditors $10,000. His newly established sole practice was interrupted. There was no evidence as to how he coped with the interruption to his practice nor as to how he practically dealt with it and his clients. He admitted to the occasional "bender" resulting on one occasion since the accident in a conviction for driving under the influence of alcohol. On one of these occasions he was also charged with assault but this charge was withdrawn.

97 In summary, the plaintiff had pre-existing depression which was exacerbated following the accident. This exacerbation was, in my view, not because of any brain injury. Professor German's opinion as to the cause of the plaintiff's present symptoms is based firmly, at least in part, on his view that a blow to the head in the accident caused concussion. However, other contributors were the exacerbation of his pre-existing depression, increased anxiety, whilst constitutionally driven, relating to his knees, and asthma.

98 The plaintiff's depressed condition was due, in my view, to the shock of the accident, the disruption to his new practice, the injury to his knees, his asthma, all of which impacted on his already depressed state and pre-existing disposition to mood swings and manic depression. I am not satisfied on the balance of probabilities that the plaintiff's so-called cognitive deficits are caused by the accident. There is little, if any, objective medical evidence until the plaintiff consulted Professor German in April 1997. In January 1998, Professor German considered that the plaintiff had recovered completely from the effects of the accident and was fit to return to work as a solicitor. The neuropsychological testing was not carried out until mid-2000. I accept the results of Dr Haywood's testing. However, I agree with the view expressed by Mr Hunt that the plaintiff's mental condition as determined by Dr Haywood four years after the accident cannot be related to the head injury suffered in the accident. None of the indicators of long-term neurological impairment were present. The plaintiff's reported symptoms do not, according to Mr Hunt, "make any sense in relationship to the injury that he sustained". Further, I have significant doubts as to the plaintiff's credibility.

99 Doing the best that I can with the evidence, I find that the plaintiff should be awarded general damages for pain and suffering caused by injuries to his knees and his chest and for his depression. I find that the plaintiff was incapacitated from working as a solicitor because of his accident related depression until March 1998. The reasons for this date are outlined below. I am not satisfied on the balance of probabilities that any subsequent cognitive deficits were accident related.

$118,949 x 3% x 1.96 years (102 weeks) = $ 6,994.00

TOTAL $125,943.00