Richard Gillam v Cumberland Council

Agreed Facts

1. According to an agreed list of facts: 1. As at 22 June 2017, the Plaintiff was employed by SCO Workforce Pty Ltd. 2. As at 22 June 2017, the Plaintiff was sent by SCO Workforce Pty Ltd (SCO) to perform work for the Defendant on labour hire. 3. At all material times, the Defendant had the care, management and control of the system of work in which the Plaintiff worked. 4. On the evening of 22 June 2017, the Plaintiff injured his wrist whilst working for the Defendant. 5. An incident report book existed at the time of the Plaintiff's injury. 6. It was usual practice for an injury suffered by an employee or labour hire worker to be recorded in the incident report book. 7. The hose used by the Plaintiff was replaced or was changed some time after the accident. 8. Dr. Fairfax and Mr. Cauduro (being experts qualified on behalf of the Defendant and Plaintiff respectively) did not inspect the exact hose used by the Plaintiff at the time of the alleged incident. 9. Neither the Defendant nor the Plaintiff is able to identify the actual trailer used by the Plaintiff on the night of his injury. 10. The Plaintiff received workers compensation for the injury he sustained whilst placed with the Defendant. 11. Prior to the Plaintiff's injury, he was earning, on average, $1,100.00 net per week. 12. The Plaintiff's past out of pocket expenses are agreed as follows $67,026.20. [1]

Witnesses

1. Apart from the Plaintiff himself evidence was also given in his case by Mr John Smith, Mr Jayden Mallin and Ms Loretta Moretti.
2. Mr Smith was a council worker performing general cleaning and labouring duties [2] with the Defendant and its predecessor (Auburn Council) for six years. It is not in issue that he was the person who had been left in charge on the work duties that the Plaintiff performed on the occasion that he had his accident.
3. Jayden Mallin also worked at Auburn Council in 2016 and early 2017 as a labourer doing driving and washing. At the time, he was employed by SCO who referred him to Auburn Council. [3] He gave evidence as to using a high pressure hose to clean bins, sidewalks and "what not". [4]
4. The Defendant in its case called Jeff Roese (a former employee of Auburn Council) that was now retired. He had worked for the Defendant and its predecessor for 30 years and as at June 2017 was a waste and cleansing supervisor. [5] Mr Roese described his role as ensuring the staff had their schedules, their locations as to where they would go to at each time to do their work, make sure that their equipment was functional and well maintained, and ensured they undertook their work correctly. [6]
5. For reasons that are elaborated below, I have reservations as to the reliability of the Plaintiff and Ms Moretti. It was also apparent that Mr Roese had a somewhat limited recollection of events in respect of which he was questioned. However, in assessing their evidence, I have declined to make global findings but instead considered their evidence consistent with what was said in Sangha v Baxter. [7]

Employment

1. The Plaintiff commenced employment with SCO in 2016, first carrying out work on behalf of Leichhardt Council that included whipper snippering, hedging and street cleaning. He subsequently commenced working with Auburn Council where his duties were basically cleaning of one description or another. [8] At some stage, he came to do some high pressure hose cleaning with Auburn Council. [9]
2. In cross examination, the Plaintiff said when he was sent to work with Auburn Council he was told that he would be doing cleansing work but had no idea that it involved high pressure hosing. [10] He had never used a high pressure hose as part of his work duties. [11] He had however used a gurney or high pressure hose before and accepted that it worked on the same principle with pressure building up in the machine and a trigger being pulled to release high pressure water. [12] He stated that what he used in the past was "a little thing" and "a little toy." [13] He said that he had received no instructions from his employer about using a high pressure hose. [14] Furthermore, when he went to Auburn Council he did not go with someone from his employer. [15] In short, he was simply sent to the Auburn depot and told that he was going to work there. [16]
3. When the Plaintiff first arrived at the Auburn depot he stated that he was taken out and shown some of the places that he might have to work. This work was mostly at nights. [17]
4. In cross examination, the Plaintiff stated that when he first started working at the Auburn Depot he was not sure whether he was shown how to start up a heater. [18] The heater needed diesel fuel which he would have to check before he left to depot to make sure it was full and that it would last a shift. [19] He stated that whenever they went out he had to fill two red canisters of fuel. [20] He stated that a full water tank would probably not last the whole shift and it would have to be re-filled from designated places. [21]
5. Describing the high pressure hose cleaning that he performed, the Plaintiff stated that this involved two persons going into a vehicle and sometimes only one. [22] He stated that sometimes when they went to Lidcombe station they would take two vehicles (even though one would do) and they would concentrate on the lower end and then set up at the top end and they would park one of the vehicles and do the other side with just one vehicle. [23] When there were two persons he described that one would stay with the vehicle and one would use the hose and blow off the paving onto the road. The other person would keep an eye that everything was working and as to how much hose was left, checking the water in the fuel and whether there were any pedestrians that would be ushered through as well as providing signals such as "enough", "pat" and "finish". [24] He said the signals would be hand signals or yelling to signify "enough" and "we've run out of." The Plaintiff stated that he was always looking back to see what the other person was doing and what was going on and if there were any pedestrians coming he would move to the side adding that "a lot of things could go wrong". [25] He stated that he had to put out A frames stating "slippery when wet" and was instructed to do it where pedestrians are more likely to be. [26]
6. In further cross-examination, the Plaintiff stated that he could see a person untangling and fixing the hose if he was close enough otherwise the person would call or he would always be looking behind him and he would be aware of what was happening and if there was someone walking up. He said where he couldn't see because the person was far away, the person would tell him to stop either verbally or by a hand signal. [27]
7. In re-examination, the Plaintiff stated that after he used the hose he walked depending on which direction he was in and if he was in the east end away from the vehicle he would bring the hose back to the western end and the second person would be winding it in. [28] The Plaintiff stated that he usually was with someone who would straighten the hose up so as to ensure that it was not messy. [29] He stated that he could see what they were doing down there and he was told to stop when they were sorting it out and then continued on. [30] The Plaintiff was asked whether he had ever told anyone at work that it was a trip hazard and he responded that he was always told to keep it off to the side so it's not a trip hazard. [31]
8. The Plaintiff accepted that he did not need to be told on how to do his job and that it was a simple task. Nevertheless, he maintained that he needed a second person. It was put to him that the second person wasn't there to be watching or supervising him but was there to keep an eye out for pedestrians so they wouldn't slip or trip on the hose. He conceded that this was case adding that the second person was also there at night to prevent being exposed to an assault and to also let him know when the end of the hose is. [32]
9. The Plaintiff acknowledged that in the period leading to 22 June 2017 he had been at the depot for several weeks doing high pressure hose work sufficient to understand what it entailed. [33]

Safe Work Method

1. The Safe Work Method Statement (SWMS) [34] relevant to the Plaintiff's work was tendered in evidence and it noted the possible hazards in executing procedure as follows:

• Slips/trips/fall
• Strains/sprains
• Cuts/abrasions, burns, eye injury The key safety controls and associated procedures were noted as follows:
• Use leather gloves, rubber gloves and wear goggles/face shield
• Ensure hands are clear of pinch points/hot exhaust and high pressure water outlet
• Unroll water hose, inspect cleaner and hose, start engine, depress lever on spray gun handle to activate water cleaner ensuring water sprayed away from people
• Use correct manual handling techniques
• The vehicles must not be driven onto the footpath to ensure the safety of all
• ALL vehicles, (whilst operating high pressure washing unit) is to be PARKED and operations is to be carried out while the vehicle is STATIONARY
• It is imperative that this is a 2 man operation whilst operating this unit at all times (emphasis added).

Position Description

1. The Plaintiff issued a subpoena seeking inter alia a copy of the contract relating to the Plaintiff's performance of cleaning services on the date of accident. [35] Produced by the Defendant in answer to a subpoena served by the Plaintiff was a position description of an Operational Worker in the Cleansing Team position number SP ED-15. [36] The document noted as part of the essential criteria for the position was as follows: Experience in street cleansing operations. Experience in the safe operation of street cleaning plant and vehicles.
2. The principal responsibilities included: Undertake all duties in such a manner that will enable the section to operate in a safe, efficient and effective manner. Maintain a high standard of operational skill whilst operating any plant or equipment.
3. The schedule of duties included: Ensure that the allocated items of plant are operated in a competent and safe manner at all times and that the requirements of the Motor Traffic Act are complied with. To adhere to Council Policies and Procedures at all times. Undertake all necessary training to fulfil the criteria of the position, both currently and in the future.
4. Worker WHS (work health and safety) responsibilities included: Attend all relevant safety training and information sessions provided.
5. The document was meant to be signed by the Plaintiff as accurately reflecting his duties and responsibilities with a place for Mr Warwick Hay as Manager to sign. There is no evidence that he in fact did so. [37]

Plaintiff

1. On 22 June 2017, the Plaintiff stated that he arrived in Auburn around 9:45pm and went up to the lunch room and discussed amongst other things what they would be doing for the night. He stated that he was told that he had to go out to Lidcombe with another worker, John Smith. He said that Mr Smith told him to go out and start the lower end of Lidcombe station as he was going to lock up. He said the duties that he was assigned was working with a high pressure hose which really involved just moving rubbish off the thick pavement. [38]
2. The Plaintiff stated that he knew where he had to go. [39] He described having done high pressure work previously about half a dozen times but only once at Lidcombe station. [40]
3. The Plaintiff stated that he also knew the vehicle that he had to take which depended on the availability of one of the two. [41] Before leaving the depot he knew that he had to ensure that the hose was fully wound up on the reel and that everything was fuelled and watered. [42] He said that he also checked the water [43] but didn't check that the trigger of the nozzle was working properly. [44]
4. The Plaintiff conceded in cross-examination that when he was told by Mr Smith regarding the cleaning he knew it was supposed to be a two man job. [45] He stated that Mr Smith did not say words to the effect of "I'm just going to lock up, you go ahead and I'll join you." He stated that Mr Smith told him to start on the lower end and if he had time to do the eastern end. He conceded that he knew Mr Smith was coming and stated that he specifically wanted him to start on the western end if he had time (and Mr Smith was not there) to go to the eastern end. [46]

John Smith

1. On the day in question, Mr Smith stated that he received a call from his team leader (Sean Albon) stating that he was not coming in tonight and gave him instructions to give to the other workers. He told the Plaintiff that he was with him that night and that he was going to tell the other workers what they were doing. He then turned around and saw the Plaintiff was already driving out. [47] Mr Smith stated that he had told the Plaintiff that he was working at Lidcombe and they were going to "Gerni" the footpath at the train station. Although his hope was that the Plaintiff was to start at one end of the street and he was going to start at the other and they would work towards each other, [48] he did not tell the Plaintiff that. [49] Mr Smith conceded that they were going to take separate trailers. [50] Mr Smith marked the circle where he intended to park at the commencement of the night. [51] Exhibit G is reproduced below:
3. Mr Smith accepted that he did not tell the Plaintiff to "go off you're on your own." He admitted that he did not ask the Plaintiff to wait for him at all but he did say "I've just got to go tell the boys what they're doing." [52] He accepted that he did not tell the Plaintiff to wait and did not say go either. [53] As far as he was concerned his expectation was that the Plaintiff would wait for him and the two of them would go together. [54]

Plaintiff

1. The Plaintiff stated that he thereafter proceeded to Lidcombe station and parked the car down the western end where they always park. The vehicle that he drove was a trailer with a pressure cleaner and a large water container which was used to clean with and a heater and a compressor. [55] He parked at the station and he marked the location with an "X" on Exhibits D, E, F and G. [56] Exhibit D is reproduced below:
3. The Plaintiff said that he parked there because that's where he was shown by Mr Smith. After he parked his car, he stated that he started the engine and did the western end heading the opposite way the vehicle was facing. [57] There he was hosing from the edge of the brickwork hosing out. He stated that the direction that he was working on Exhibit D was a distance approximately 15 to 20 metres away. He marked with an "S" and arrow on Exhibit D the direction that he started work. [58] He described it as not taking very long being approximately six to seven minutes as he was going downhill. [59] After he completed the western end, he stated that he went back to the vehicle pulled out the hosing and flapped it backwards over the side of the ute and went up the hill which he marked on Exhibit D with a pink arrow. He stated that he continued up the hill spraying off the walls as he was continually looking back to see if there were any pedestrians. At this stage, he indicated that he already had some signs out indicating that it was slippery when wet.
4. In cross examination, the Plaintiff stated that when he was at the western end he considered that he was covering around 20 odd metres or so taking a portion to getting himself started and worked downwards until where he had to go and then walked back up the vehicle. Thereafter, he said that he took more hose of the reel because he knew he had to go up the eastern end. [60] He described the reel as free spooling and peeled off the hose that was there but thought there might be a little bit left on. He was not sure because it gets messy and it narrows.
5. Approaching the eastern end he stated that he peeled off more hose because he knew that he had a longer section up the other end. [61] He said that he knew he would need 50 metres in order to finish the job at the other end. [62] It was put to him that logically he would peel off all the hose off the reel in order to take it to where he had to finish his job. He responded stating "Well it all gets messy. It starts to twirl up and it becomes, it can become quite unmanageable and it's also a trip hazard." [63] He earlier stated that it was a fine line and he was worried about people's safety as well as his own. [64] He accepted that he knew that he had to peel off the hose in such a way that it would not become a trip hazard [65] and accepted that's what he did. [66] He reiterated that he pulled some hose off the reel and to his recollection there could have been a little bit left and then he started going up the hill towards the east. [67] The Plaintiff accepted that he would drop the tail gate of the trailer to make it easier for the hose to come off the reel and that generally when he would wind the hose back up he would do so in a clockwise direction. [68] He accepted that he would bring all the hose back down to the back of the ute and then wind it in. [69] By reference to Exhibit 1, the Plaintiff identified the setup of the equipment that was on the trailer that he took from the depot to Lidcombe station on the night of the accident as very similar. [70] He accepted that he flipped the hose over the reel and the trailer before he started going east so that it would have been on the left hand side of the trailer as depicted in Exhibit 1. [71] The Plaintiff replicated on Exhibit 2 where the hose was over the trailer and where he was pulling it out. [72] The intention was that he went east such that the hose would come from the coil section to allow him to finish the job. [73] Exhibit 2 is reproduced below:

Plaintiff

1. The Plaintiff stated that he then went to the lift area and was aware that the hose goes another couple of metres. He proceeded to do the inside of the bins and blasted the area and he noticed that the hose was getting a little bit tight and he thought it was caught. He described pulling on the hose and was thrown forward on his left. He stated that he had the trigger gun in his right and took his hand off that and went straight over. [74]
2. In cross examination, the Plaintiff reiterated that he thought that there was still some hose left and he knew that the hose would go a bit further and pulled on it and it had taken him forward. [75] He conceded that he could not see the reel from where he was and made an assumption that there was more hose to come off the reel. [76]
3. He described the hose as "a rubber hose" and "a blue one". He stated that it has heat in it and he described it as acting like "a bit of bungy and its "pulled me forward and I have just landed on my left hand". [77] He stated that when he was pulled forward he was facing the ute and was watching what was going on that way towards the ute. [78] Just prior to the injury, he stated that he felt that there was more to come and more slack to come. [79] At that point he stated he couldn't see very much at all because of the distance described as well as there not being "huge lighting and good visuals". However, he understood from his previous experience and knew that there was "more slack in it." [80] He marked where he fell on Exhibit F being in a position close to where the bikes were and where the lift was. Exhibit F is reproduced below:
5. The Plaintiff described again that usually the hose would go for at least another two metres. [81]
6. The Plaintiff stated when he pulled back on the hose it was not very far however it was a quick thing and yanked on it and went forward and that's why he described in his own mind he thought it was a recoil on it. [82] The Plaintiff stated that the accident happened the same way whether it was a recoil of one description or another as he was pulled forward. He accepted he asserted that it was a rather rubberised hose that had a degree of elasticity to it. [83] He denied making that up and denied that he tripped as stated in the other recorded histories discussed below. [84]
7. The Plaintiff rejected the suggestion that he tripped on the hose that was on the ground. [85] He accepted that when he spoke to persons he might not have been "very specific". [86]
8. The Plaintiff accepted that there was some lighting in the area where he was working [87] sufficient for him to be able to see where he was walking. [88] The Plaintiff stated that once he got to the end of the bike rack where the incident occurred, he did not have a particularly good view to see the hose all the way back at the trailer. [89] He was not sure if he was able to see the hose on the ground and whether it had been caught up or jammed on anything. [90] The Plaintiff conceded that he had prior to the accident had gone back to straighten some of the hosing because it gets kinks. He stated that he only went back once to untangle the hose. [91] He stated he wasn't all that far away from it and he could see that there was a problem and it kinked and twisted. [92] He described that a person usually stays at the vehicle to keep an eye on the hose and that was that person's purpose so he never really had that problem. [93] The Plaintiff stated that the second person would be pulling out the hose as he goes. [94]
9. The Plaintiff indicated that he had previously not encountered issues with the hose. When the second person was present there was possibly occasions where the other person had to tell him to stop or untangle the cord but he did not recall. [95] He acknowledged that on the particular occasion he untangled the hose he did not need anyone to tell him as he could see it visually. [96] He stated that he had not previously encountered issues with the hose although he never stayed at the vehicle. [97] When he went to untangle the hose on the occasion in question he said that he did not have a look to see how much hose was left as he was not thinking about it. [98] He rejected the suggestion that he went back to gauge how much hose was left about three times describing that as "ridiculous." [99] To his knowledge it was only once where there was a little tangle that he could see and wasn't far away and when there's a lot in a group on the ground there would be a lot more issues. [100] It was accepted that he regularly looked behind to see how the hose was going and to check on pedestrians and anyone else coming along that might interfere with his work or himself. [101]
10. It was put to the Plaintiff that he was an experienced person using this equipment. He responded that he was experienced in blasting. [102] He said that he was not really experienced in removing the hose from the reel and it was always fed to him. [103]

Plaintiff

1. Following the accident, the Plaintiff said that he freaked out and then the pain started to increase as time went on. [104] He described then sitting on the benches near the bus terminal and calling Mr Smith. [105] The position was also marked with a square on Exhibit F. He described calling Mr Smith that he had an accident and dislocated his hand and he needed to be picked up and taken to the hospital. [106] He stated Mr Smith said that he would be there in 10 minutes. [107] At this point he understood that Mr Smith was still locking up the depot. [108] Thereafter, Mr Smith came to the location and packed up his equipment and the Plaintiff jumped in and was sitting in the car. Mr Smith grabbed the Plaintiff's bag and "stuff" that was in his ute and bought it up to him and then drove him to the hospital. He said that the ute that he was in was not the one which he had driven that day but was the one that Mr Smith was driving. [109]

John Smith

1. Mr Smith stated that after the Plaintiff took off from the depot he remembered seeing the other workers off to their jobs and then locking up the depot. [110] He said that he was in the middle of closing the gates when he got a phone call from the Plaintiff stating "I've fallen. I've broken my arm". [111] At that point, he quickly locked the gates and went to see what was happening. He arrived, parked his vehicle and picked the Plaintiff up in his ute, packed up the Plaintiff's ute and trailer, locked it up and took the Plaintiff to Auburn hospital. At the end of the night he stated that he told Mr Roese. [112]
2. Mr Smith stated that when he arrived to Lidcombe station the Plaintiff was on the ground and he had to pick him up from a location opposite the pub on the corner. With an arrow he marked on Exhibit G, the location to which the Plaintiff was positioned. [113] That was at a point to the west of where the Plaintiff marked with an X that the Plaintiff parked his vehicle. [114] At that point, he described that the hose was out but not fully out. [115] He stated that the hose was right up next to the Plaintiff at the location where he found him. [116] He conceded that he was still lying on the section of the pavement although he was expected to be working and then at that point he didn't think he even started that section. The ground was not wet and he thought he was just starting to unpack the equipment. [117] At that point he said that the Plaintiff had not put any signs out and he could not remember any wet process or anything nor could he recall turning off the boiler. [118] He stated that he packed up the Plaintiff's equipment recalling "mainly rolling up the hose" and locking up the utility before taking him to the hospital. [119]

Hose

1. The Defendant produced evidence that the trailer registered number TC26KC was supplied and delivered in December 2016 together with a 50 metre hose. [120] The Plaintiff tendered evidence that the hose on TC26KC was replaced on 30 August 2017. [121] Photos of that trailer appear in Exhibits 1 and 2. By reference to the subpoena issued by the Plaintiff and the production by it appears acknowledged by the Defendant that the relevant trailer was that used by the Plaintiff at the time of the subject accident. [122] However, via Exhibit A, it was agreed between the parties that neither party is able to identify the actual trailer. Nonetheless, the Plaintiff's evidence was that the trailer depicted could be the same one, looked very similar although he could not remember the registration number. [123]

Plaintiff's Accounts

1. The Plaintiff conceded giving different versions about what had happened on the evening in question. [124] He acknowledged that up until recently his case has been that the hose reel was an automatic retractable one [125] as he thought that because it pulled him and that's what had happened. [126]
2. The Plaintiff was questioned about his interactions with Mr Cauduro on 8 March 2019 and came to accept that they had what he described as a brief conversation. [127] It was put to the Plaintiff that he told Mr Cauduro that he was walking with a high-pressure hose around bends and up over stairs. The Plaintiff denied this stating "there were no stairs". [128] The Plaintiff also maintained that there were no corners. [129]
3. The Plaintiff accepted that the description of the hose that he gave to Mr Cauduro was completely different to the hose that he in fact used on the night. [130] He accepted that he did not tell Mr Cauduro that it was a rubberised hose but rather it was "a blue stretchy hose." He described the black hose that was on the trailer at the time of inspection on 14 October 2020 as a completely different hose which had no give in it. [131] He said that "these hoses were used like new hoses" and "they should have lasted for years". [132] He accepted when he went out to look at the equipment with Mr Cauduro he told him that the pressure washer on view was different to the one that he had used in that the latter had a retractable hose reel (spring loaded) and not a wind hose reel. The Plaintiff stated that's what he was thinking. [133] He said that he knew something pulled him back and pulled him forward and he was not an expert as he had only used it so many times and did not know a lot about it. [134]
4. The discharge records of Auburn hospital following admission on 22 June 2017 recorded a history as follows: "Works as pavement ?washer was setting up for work tonight when fell over onto hand". [135] When drawn to his attention, the Plaintiff denied this asserting that it was incorrectly recorded and that he was in a lot of pain. When put to him that was one explanation of what happened he described it as "complete and utter rubbish". [136]
5. A Notification of Injury form in respect of the accident completed by Claire Nganmaya from SCO, recorded the history as follows: "He stated he was pulling the water hos(e) when he got caught on it causing him to trip over and landing on his left side. He stated he put his left hand out to catch his fall. He reported immediate pain and noted his left hand was looking deformed. He stated he was doing nightshift. The incident occurred on a road he was cleaning near Lidcombe train station. There was no witness to the incident. He stated he knew his supervisor was only 5 minutes away so he went and met him to get his injury looked at. " [137] (Corrected)
6. When drawn to his attention the Plaintiff stated that he does not remember saying that. He recalled being brief and did not go into the "whole thing" and was "never thinking about a Court case." [138] The relevant Notification of Injury form notes that the employer was advised on 23 June 2017 at 8.30am. Shortly thereafter at 8.55am, the Plaintiff's supervisor Mr Roese forwarded an email to "Wendy Adamson" at SCO stating: "FYI, on Thursday night 22.6.2017 Richard Gillam slipped/tripped and injured his wrist, a crew member took Richard to Auburn Hospital for treatment (possibly broken) then he went home". [139]
7. On 23 June 2017, the Plaintiff saw his General Practitioner Dr Darshanee Mahaliyana. His clinical records recorded a history as follows: "H/O (fall) in the railway station in Lidco(mbe) Had a fall and landed on the left hand whe(n) he was pulling a hose …". [140] (Corrected) A referral letter was written the same day to Dr David Stewart stating: "Thank you for seeing Richard Gillam for an opinion and management. He sustained fracture of the left distal ulna when he had a fall yesterday at work. He missed a step when he was pulling a hose and landed on the left hand". [141] The Plaintiff denied giving this history to Dr Mahaliyana. He said that he was told that he had said that but there are no steps and he does not know where that came from. He denied missing a step. [142]
8. In a letter to Dr Mahaliyana dated 27 June 2017, Dr Stewart records the following history: "Thanks for referring Richard a 52 year old right hand dominant council worker regarding the injury to his left wrist. He was using a hose last Thursday night when he turned and tripped and fell onto his outstretched left hand. …". [143]
9. The Plaintiff stated that he was not exactly sure how it turned out or how it was interpreted that he was saying that, but he had no idea about the machinery he was talking about. He disagreed with the recorded statement as to how the accident occurred and said that he was using the hose and was pulled forward. [144] Dr Stewart's clinical notes record a history and relevantly stated: "Fall at work - Thursday night. - while using hose." [145]
10. On 26 June 2017, Claire Nganmaya from SCO forwarded an email to GIO Workers Compensation Insurer stating: "He is a co-worker of Jayden Mallin and does a similar job. He is also injured by similar equipment though he is unsure if he trips over the hose". [146]
11. In cross-examination, the Plaintiff stated that he was not really sure what he said to her. [147]
12. On 17 October 2018, following a medico legal consultation with Dr Ronald Thomson (Musculoskeletal Medical Consultant) at the request of the Plaintiff's solicitors, a history was recorded as follows: "… He was using a gurney on the surface of a wall at the Lidcombe train station. It seems as he approached the wall, the hose progressively lengthened from a spool on the rear of an adjacent vehicle and reached a point where the rubber hose became stretched and then rebounded and dragged the patient with it. He then became entangled in the retracting hose and fell to the ground and sustained the injury noted". [148] The Plaintiff did not recall making these statements. He stated that he thought he mentioned the lift area as he does not clean walls and he was not sure what the doctor was talking about. [149]
13. On 11 December 2018, following a medico legal consultation with Mr Greg Anning (Consultant Psychologist) at the request of the Plaintiff's solicitors a report dated 14 December 2018 was prepared. This recording a history as follows: "Mr Gillam explained that the hose used for high-pressure clean is rubberised and therefore stretches. He stated that he reached the end of the hose and it pulled him back causing him to trip and come down heavily on his left hand". [150] The Plaintiff stated that he did not know whether he said that it was the end of the hose because if it was he would not be pulling on it so it did not make sense. [151]
14. On 6 March 2019 following a medico legal consultation with Dr James Bodel (Orthopaedic Surgeon) who at the request of the Plaintiff's solicitors, a history was recorded as follows: "The accident occurred soon after starting. He had parked the vehicle and it was around a corner. He indicated that this really should have been a two-person task at that time but he pulled out the hose for the length that he needed and unfortunately the thing then recoiled on him, causing him to lose balance and fall. He tripped over the hose and fell on his outstretched left arm". [152] The Plaintiff accepted that he believed at the time that the hose recoiled believing that the hose was retractable as he got pulled forward. [153]
15. On 20 August 2019, the Plaintiff saw Ms Sanja Zeman (Occupational Therapist) qualified by the Defendant. In a report dated 24 September 2019 a history was recorded as follows: Mr Richard Gillam discussed that at the time of the subject incident of 23.06.2012, his co-worker has not yet arrived at the work area. As such, he began to pull the hose independently. Whilst doing so the hose came to the end of its spool, overstretched, and pulled back (retracted) with force. [154]
16. The Plaintiff rejected the suggestion that he had removed all the hose off the reel adding that he was not sure and thought that there was some left. [155]
17. It was put to the Plaintiff that he did not know if he tripped as he was looking at the hose or if he turned around and tripped because the hose was behind him or where he was on the pavement and hence he really did not know. The Plaintiff rejected this. [156] It was also put that the reason he had half a dozen different versions of the accident was because he did not know what happened. [157] He rejected this. It was put to him that this was an accident and it is no one's fault except his own because he did not take care for his own safety. The Plaintiff rejected this stating that it was the Council's fault for not having a second person there. [158]

John Smith

1. Mr Smith described his experience back with the Council in 2016-17 as not very good. [159] He stated that it was a very, very hard job to do as there was a lot of high pressure and the equipment was heavy. [160] When he was performing high pressure hose work, he described the pace as very fast because he had more than one town to do in a night. In the beginning, he said that they did one town and then it grew to three and then when the Council was merged they got nine more. [161]
2. He stated that he had been pulled back by the pressure hose before around about the beginning of the time when he started learning how to use it. [162]
3. At that point, he was a casual for five months and was placed straight on night shift full-time. [163] He stated that at the time he did not know, as most of them didn't when they started using the hoses that "when the machine is running, there's a lot of high-pressure built up in the hose such that when you get so far out the hose itself tightens on the reel and it just basically becomes like a bungee cord" and "retracts itself." [164] He described it as moving backwards towards the machine. [165] He stated that it occurred five or six times before he "got the hint." [166] He was not injured in the sense that he needed to get on the worker's compensation but he did have a couple of falls which hurt him. [167] He described falling straight on his back. [168]
4. At the time, he stated that he told his boss Mr Roese and his team leader if he was on but other than that not really anyone else. [169] He stated that he was aware of others being injured in particular the Plaintiff and "Jayden". [170] Following his injury, he stated that he would have to wait for his boss to come as he was illiterate and could not read and write. He described telling Mr Roese as far as he knows and then Mr Roese was the one that took care of the rest. He was aware that there was an incident book which was located in the medical room. [171]
5. He stated that when he commenced working there no one gave him instructions about what work he would be doing as he was learning on the job. [172] He stated that he learnt from Sean Albon and Don Chang. [173] He said that they accompanied him on site to show him how to use the high pressure hose but he was also shown at the depot. [174]
6. He conceded that before the accident he had used a high pressure hose at Lidcombe station on the same side of where the accident happened. [175] Most of the time he said he was by himself and worked on nightshift but sometimes with somebody else. [176] He conceded that if time was a bit more of the essence there might be a second unit with a second worker. [177] On this occasion, he conceded from memory there were five workers on that shift. [178] He further conceded that the other workers went to different places for night time cleaning. [179] He stated that he had worked with the Plaintiff on night time shifts on previous occasions once or twice. [180] That was however at other places although he could not remember too well. [181]
7. Mr Smith stated that he was familiar with the setup of the trailer containing the equipment to be used. He stated that on previous occasions when he performed high pressure hose cleaning at Lidcombe station on the southern end he would park the vehicle in a similar location to that where the Plaintiff had parked and indicated that he had parked his vehicle marked with an X on Exhibit D. [182] He said it was his usual practice to start towards the left of the vehicle as shown in that photograph peeling off as much as the hose as he needed to and then turn the engine on so the water pressure starts. [183] He stated that personally he always went as far as that hose could reach and then start walking up. When asked whether he would start at the top and effectively come down he stated that depended on who was with him on the night. [184] He was asked whether he could get the hose all the way to the lift and the bicycles if it was completely unwound and he stated he could get just past it if it was the full length but over the years because it keeps bursting the hose they would be dropped and connected with another connector. [185] He was not aware if this had been done as at 22 June 2017 and acknowledged that the hose had been changed from time to time. [186] He stated that he always remembered the hose was blue and it was a rigid hose not elastic and a solid unit. [187] He was asked whether it has any give when it's extended and pulling on it. He stated that only when pressure is in it. [188] He accepted that the hose was cut reducing the length until they were ineffective and then they were replaced. [189]

Jayden Mallin

1. Mr Mallin stated that when he was employed by SCO and before he was sent to Auburn Council he worked for Parramatta Council to do bin runs on day shifts but was not aware that he would be using a high pressure hose. Mr Mallin conceded that he had been working at Auburn for some time before occasioning injury and he initially was assigned labouring work and collecting bins. He said that SCO hired him to work for Auburn Council to do the bins and it wasn't until his first day that Mr Roese told him that there was a night shift opportunity which involved working with a high pressure hose and he took him up on the offer.
2. Mr Mallin described the high pressure hose as being "pretty violent at times". He stated that when you are unravelling it from the spool, if you give it any slack it will jerk on you. [190] He described that this happened to him "every time" and "many times". He recalled on one occasion on 8 March 2017, it jerked on him and dislocated his shoulder. [191] He stated that it occurred in Berala in probably a sidewalk outside of the Woolworth's. [192] At that point he called his team leader Sean who drove him to Auburn hospital. [193] He described needing surgery and a bolt in his shoulder followed by a couple months of rehab. [194] He remains with an 8cm scar on the right shoulder. [195]
3. Subsequently, he stated that he was in contact with Jeff Roese about whether he could work on light duties or when he was better to come back to work. [196]
4. He stated that on the first occasion that he went out on night shift, Sean Albon accompanied him to show him what to do. [197] Mr Albon only came on one occasion but did on other occasions tell him what he had to do. [198] This included being shown how to use the high pressure hose and the equipment on the back of the trailer. [199]
5. Mr Mallin recalls doing cleaning duties at Lidcombe station maybe more than a dozen times. [200] Mr Mallin indicated that when he went to Lidcombe station it was his `practice to park as indicated by the marking of X on Exhibit D. [201] He described the vehicle that he took as one with a tray on it but did not always have a trailer so that the high pressure hose was directly mounted on the tray of the truck. [202] He stated that he didn't believe that he ever took the trailer to Lidcombe. [203] He described the hose on the back of the reel as a manual wind up one [204] which was free spinning. [205] He stated that he would simply pull the hose off the back of the trailer in order to unwind the reel to get it to where you had to clean. [206] He described this as pretty easy to do. [207] He stated that whichever side of Lidcombe station he started on he would peel enough hose off the back of the reel. [208] He was asked when he had to go to the area where the lift and a bicycle rack was and whether he needed to peel off the back of the unit to get to where the bicycles were. He stated that he would have to move his truck to reach that area as the hose was not long enough. [209] He described moving the vehicle further to the right probably in the lane somewhere. He stated that he knew he had to wash the whole of the side walk all the way up and he would still have to move his truck to get to that part of the side walk but he did not know if he had to move it to get to the bikes. [210] He described this area as extending beyond the bicycle stand to where a person was sitting down on Exhibit F marked with a square. He stated that he did not remember what Sean told him and accepted that it was common sense to move the vehicle. [211]
6. Mr Mallin stated that on occasions when he used the high pressure hose he was on his own and accepted that it was a difficult task to remove the hose off the reel as it can be pretty heavy. [212] He described a rigid high pressure hose that was not elasticised and it was not easy to take off the spool. [213] He accepted that it was not a garden variety hose but something that was pretty solid. [214] He accepted that as you pull it was heavy and it does not come off completely but you have to use your hands and pull it off the reel. [215] He stated that as he moved from one section of the pavement to another he could take all the hose off before he started moving or just carry the hose and let it peel off as he moved. [216] He accepted it was sometimes easier to unravel first before moving it but other times not so much. [217] So far as the hose jerking on him, he stated that it would pull itself back towards the spool. He stated that he didn't know specifically why it happened however if you gave it any kind of slack and you didn't keep it taut the whole way then it would pull itself back towards the truck. He described it as moving him and pulling him along with it. [218] He didn't mention any of the incidents to SCO. [219] He accepted that when he was sent to Auburn Council he was basically left on his own as he understood it. [220] He did however report the incident of 8 March 2017 and claimed workers compensation but did not return to Auburn Council following the incident. [221]

Jeff Roese

1. Mr Roese could not recall the Plaintiff as a person from whom he had responsibility. [222]
2. However, with respect to workers under his supervision he stated that he would conduct meetings to make them aware of what he wanted and what he didn't want and basically supervise their works. [223] Although he worked during the day time he accepted that there was a night time cleansing team that used to go out in the evenings. [224] He stated that he communicated with the night time workers early in the morning when they were coming back to the depot and he would tell them and the team leader what he wanted. Alternatively, he would send the team leader a text message throughout the day so that he was aware of what he would get done that particular evening. [225] Mr Roese stated that on the occasions that he would meet up with the team leader or some workers at 5.30 in the morning he did not recall discussions about any issues relating to high pressure hoses that were on the back of trailers used for cleaning. [226]
3. Mr Roese said that he was familiar with high pressure hoses over the years. [227] He recalled that they had a grey blue colour but sometimes got it from a supplier and it could be a little different and it could be grey or blue. [228] He stated that he used both types of hoses and in his view there was no difference in their performance. He stated that he had never had any issue with them. The hose was quite easy to move around and roll on and off the reel. [229]
4. Mr Roese said that he was not aware about an incident involving Mr Jayden Mallin and could not recall him. [230] He did not recall being told by someone about an incident involving a person who had fallen and injured their wrist during the course employment. [231] Mr Roese could not recall the document referred to at [51] that he sent on 23 June 2017 relating to the Plaintiff. [232]
5. Mr Roese accepted that the trailer shown in Exhibit 1 was one of the two that was used by the Defendant in relation to high pressure cleaning. [233] It was also stated that there were two other vehicles used much larger ones that had the high pressure on the back of the tray itself rather than on a trailer. [234] He stated that he had used the equipment shown in Exhibit 1 prior to June 2017 from time to time and never encountered anything about the hose pulling back when he pulled on it. [235] He described the vehicle shown in Exhibit 3 as a side on view of that in Exhibit 1. [236]
6. Mr Roese stated that he left Cumberland Council in November 2017 and did not recall when the Council purchased the two trailers nor whether there had been any changes made to the equipment on the back of the trailers for use of the high pressure hosing. [237] He stated that the system of work for the time that the trailers were purchased up until the time he left was relatively the same. [238]
7. In cross examination, Mr Roese conceded that in addition to the function he earlier described, he also had responsibility to consider the health safety and wellbeing of his workers at the time. [239] He acknowledged that included not only employees but also labour hire workers working at the Council. [240] He accepted the Council considered the health safety and wellbeing of workers to be of prime importance. [241] He also accepted that ensuring a safe system and place of work would be to record incidents and injuries that occurred in the workplace. [242] He accepted that as at June 2017 and March 2017 workers were required to report any injuries that they suffered and once reported there was an obligation on supervisors to take further steps. [243] He accepted to his understanding in March and in June 2017 there would have been an incident or injury book. [244] He accepted that he would have been incumbent on supervisors to share the outcome of the investigation with other people including managers to ensure everyone knew that the issue had been resolved. [245]
8. The Defendant in the course of cross examination conceded that there were no documents possessed by the Defendant as to the nature of an incident report statement or investigation report relating to the injury to Mr Jayden Mallin. [246]
9. Specifically, Mr Roese maintained having no recollection of Mr Jayden Mallin or memory of his injury. [247] He stated that he does not recall discussing with him his return to work after his injury. [248] Nor did he recall whether any incident report or investigation report was done although he accepted that it should have been based on what was said earlier. [249]
10. He also could not recall whether any injury report was made in relation to the Plaintiff. [250] Although he accepted that it should have been. [251] Mr Roese stated that he was sure that an investigation would have been conducted as it was a part of his job that he had to do. Nevertheless, he could not remember doing any reports in relation to either Mr Mallin or the Plaintiff.
11. The only complaint that he recalled prior to 22 June 2017 was when he was told there was a hole that needed repairing or something with a machine that wouldn't start or wouldn't run. [252] He accepted that was one of the methods of repairing a damaged part of the hose was to cut it and then re-join it depending on the quality of the hose. [253]
12. It was put to him that if Mr Smith complained to him prior to June 2017 that the hose used to jerk or pull people back towards the trailer, would he have taken urgent steps to remedy the problem and not let anyone use it until the issue was fixed. [254] He accepted this would be so.
13. Mr Roese's attention was drawn to the SWMS. He accepted that it is imperative that two men be involved in operating the cleansing unit at all times due to the nature of the work. When asked what he meant by this, he responded: A. Well, I mean, some of this equipment is used at different hours of the day. So, basically, there's other things in there, like people and there's pubs and clubs and stations and things like that. So there's other people around. Apart from that, just basically to assist and also to give a hand to - so the one person is not doing the cleaning all the time and they rotate their duties. [255]
14. It was put to him that one of them could watch the hose whilst the other person was actually using the gun. Mr Roese responded that it depended upon where they were actually at and the person wouldn't be necessarily watching the hose. He stated that they could be watching the people or they could be moving signage or anything like that. He conceded however that watching of the hose was one of the things that could be done. [256] It was put to him that often it was the case in 2017 workers were often sent out alone to use the high pressure hose and he responded that was not his understanding as his understanding was that the two were together. [257] He accepted that if a person did work alone they would not be in compliance with the policies and procedures in place by the Council. [258]
15. Mr Roese conceded that he used the hose prior to retirement when there had been a spill of some and the other workers had finished and it was possible that it was not long before he retired being within a year. He stated that he did not recall the high pressure hose having a tendency to pull or jerk back and it had not happened to him and it had not happened to a lot of other people. He surmised that this was probably a bit of a human factor. [259]

Liability -Consideration

1. Relying on Alan Donald v Rail Corporation of New South Wales [260] (which in turn referred to TNT Australia Pty Ltd v Christie [261] ) and noting the relationship between the parties, the Plaintiff characterised the duty of care owed to him by the Defendant as analogous to that owed by an employer to an employee. [262] The Defendant did not dispute this. I am satisfied that this is so.
2. In opening, the Plaintiff's case was described in the following terms: ,,,, that the defendant failed to provide him a safe system of work, which they were required to do. They sent the plaintiff out to perform work alone in an area where he wouldn't be able to see the hose reel. They failed to provide a two-man team to perform high-pressure hose cleaning - despite their own systems mandating that requirement. They also failed to do anything about the problematic high-pressure hose, about which they were on notice, that it had a capacity to retract and pull workers with it. [263]
3. The risk of harm identified by the Plaintiff was pleaded as "the risk of workers being injured as a result of being required to operate a hose which had insufficient reach was not within sight, without proper training or proper supervision and that may have been faulty or not properly maintained." [264]
4. However the breach of duty asserted by the Plaintiff was premised on an acceptance that during cleaning whilst seeking to extend the reach of the hose he pulled on it whilst it was charged resulting in it forcibly retracting. [265] The particulars of breach and the asserted precautions that a reasonable person in the Defendant's position ought to have taken, were based on this account of the mechanism of the injury.
5. In order to establish reasonable foreseeability it is not necessary to for the precise manner in which injuries were said to have been sustained to be reasonably foreseen. [266] Overall, while the Defendant argued otherwise I am prepared to accept that the risk of harm as identified by the Plaintiff was reasonably foreseeable for the purposes of s 5B(1)(a) of the Civil Liability Act 2002 (NSW) (the 2002 Act). I would do so accepting the evidence of Mr Mallin and Mr Smith as to their experiences operating high pressure hoses which I am satisfied were communicated to the Defendant as both indicated. That evidence was not challenged. Whatever Mr Roese's personal experience was when questioned about the potential for the high pressure hose to pull up or jerk on the operator, he appeared to recognise the potential stating "we're probably dealing with a bit of a human factor there." [267] At its highest, his evidence was as to an inability to recall the earlier reported incidents. The injury report book in respect of Mr Mallin's accident was not produced. The Plaintiff sought an inference that any documents would not have assisted the Defendant's case and I would proceed on this basis. The SWMS identified risk of injury and required inter alia two persons to operate the hose. The positon description a required an operator to have experience and undertake training.
6. The Plaintiff also sought a Jones v Dunkel inference in relation to the failure of the Defendant to call Sean Albon and Warwick Hay. In respect to Mr Hay, there is no evidence as to his role in the events that followed beyond the matter referred to at [22]. In relation to Mr Albon, whilst he may well have been able to called by either party, the evidence indicates that he stood higher in the confidence of the Defendant and it would have been natural for it to call him. [268] Again, the inference sought by the Plaintiff is that he would not have assisted the Defendant's case. In any event, Mr Mallin's unchallenged evidence which I have accepted was that he reported the matter to Mr Albon who took him to hospital.
7. Accepting that the risk of harm was foreseeable I am further satisfied that the specified risk of injury was not insignificant for the purposes of s 5B (1) (b) of the 2002 Act. Whilst s 5B(1)(b) imposes a more demanding standard than the common law it has been held to be as not by much. [269]
8. The Plaintiff is further required to establish that the risk of harm materialised such that within the terms of s 5B(c) of the 2002 Act "in the circumstances, a reasonable person in the Defendant's positon would have taken those precautions." Those precautions were specified by the Plaintiff as:
9. Trained, inducted and warned the Plaintiff;
10. Fixed the fault; and /or
11. Would have prevented workers from using the faulty equipment; and /or
12. Would have ensured there were two people performing the task of high pressure hose cleaning. [270]
13. Any finding to this effect must be premised on an acceptance of the Plaintiff's evidence as to the mechanism of his injury. So much appeared to be accepted by both parties. [271]
14. The Plaintiff's evidence was clearly in conflict with that of Mr Smith. I did not find the Plaintiff to be a reliable witness. His evidence as to the mechanism of the injury was variable and appeared to be a reconstruction. This was particularly evident when he was cross examined as to the description of the pressure hose and reel recorded by Mr Cauduro following a discussion with him. The Plaintiff acknowledged that in referring to the hose he used on 22 July 2017 he indicated that that hose was different to the one viewed on inspection. Specifically, he told Mr Cauduro that he used a retractable spring loaded reel and a blue stretchy hose. He recanted from the description of a retractable reel admitting that he knew something pulled him and he was not an expert as he had only used it so many times. He acknowledged not knowing a lot about it. I am unable to accept the Plaintiff's description as being reliable in the circumstances. In any event, whether the hose was rigid or elastic was not a distinction in respect of which the Plaintiff sought to make specific submissions.
15. I am conscious of the need for caution to be exercised in relying on accounts recorded in medical records highlighted in cases such as Mason v Demasi [272] and Davis v Council of the City of Wagga Wagga. [273] The contents of the Auburn Hospital report, the Notification of Injury form, Dr Mahaliyana's notes, Dr Stewart's reports and Ms Nganmaya from SCO as earlier referred were recorded proximate to the accident yet none of them record an account of the incident occurring by the high pressure hose forcibly pulling the Plaintiff back causing him to pull back and fall. A number of the records refer to tripping which is something the Plaintiff denies. The account at Auburn Hospital refers to the accident occurring as the Plaintiff was setting up. Each of these records were relatively brief, obtained in a treatment/ work context and in case of treatment in circumstances where at least initially it may be accepted that the Plaintiff was in pain.
16. As outlined earlier there were also a number of other reports prepared for legal purposes. Dr Thomson and Mr Anning obtained histories in 2018. Neither report makes reference to pulling on the hose and refer instead to the hose being made of rubber and stretching. Dr Bodel referred to the accident occurring soon after starting and the Plaintiff tripping after the hose recoiled causing him to loose balance.
17. Of greater consequence however is the evidence of Mr Smith. He conceded that he was currently on worker's compensation. Whilst he was not exactly happy with how things went down he stated that the Defendant was his only means of employment. He acknowledged telling the Council depot the week prior to giving evidence that he was coming to Court to give evidence against the Defendant. [274] The Defendant highlighted that he had no interest in the outcome of the trial and that he gave his evidence in a straight forward manner. Despite calling him it was the Plaintiff who sought to qualify acceptance of Mr Smith's evidence.
18. Mr Smith's stated that he had to pick the Plaintiff up from an area that he marked on Exhibit G with an arrow. That was an area to the west of where the Plaintiff parked his vehicle. Whilst the Plaintiff submitted that Mr Smith's evidence of location does not change the mechanism of the injury, the location is consistent with Mr Smith's evidence of the Plaintiff having commenced to unpack and not clean in the area the Plaintiff asserts that his injury occurred. Mr Smith's account was that he did not believe that the Plaintiff had started the relevant section but was in the process of unpacking. This was supported by observations that the hose was not fully out and corresponded with the notation in Auburn Hospital's clinical notes. Moreover, Mr Smith did not recall turning off the boiler, he did not observe the ground to be wet or signs to be placed out and remarked that the hose was not fully out. The Plaintiff submitted that it was not put to Mr Smith that the engine of the Jet wave was not on or there was no pressure in the hose. These are matters which if necessary the Plaintiff could have sought to elucidate but did not. There were other questions that could have been asked. The Plaintiff neither in chief nor in re-examination asked any questions of Mr Smith relating to his observations when he arrived at Lidcombe after the accident. To the extent that unfavourable evidence emerged in cross examination no direction and leave were sought under ss 38(1) and (4) of the Evidence Act 1995 (NSW) (the 1995 Act).
19. Referring to the principles in Jones v Dunkel, [275] Handley JA stated in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Anor: There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions. [276]
20. In Kuhl v Zurich Financial Services Australia Ltd, Heydon, Crennan and Bell JJ referred to Jones v Dunkel adding: These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. [277]
21. In this instance, I am unable to draw any inferences favourable to the Plaintiff arising from the questioning of Mr Smith.
22. The Plaintiff sought to cast aside the inconsistencies with Mr Smith pointing to Mr Smith's concession that the main thing after so many years was rolling up the hose asserting that this indicates an awareness that his memory of other issues may be incorrect given the passage of time. In my view, Mr Smith's concession did not discount the otherwise unchallenged account which was consistent and plausible. Mr Smith impressed as a credible and reliable witness who genuinely sought to give an accurate account of his recollection. I again accept his evidence.
23. The Plaintiff issued a Notice to Produce [278] documents relevant to the Plaintiff's injury which was the subject of limited production and a claim for privilege. [279] Ultimately, a call under s 36 of the 1995 Act was still made for the production of the book variously described as an incident/injury/report book in the first aid room. [280] The Defendant stated without objection that this could not be located. [281] A similar call was made in respect of reports related to Mr Mallin's injury. [282] The Defendant advised that inquiries and searches undertaken in respect of incident reports, statements or investigation reports concerning Mr Mallin's injury had been exhausted and there are no documents to produce. [283] The Plaintiff accepted this statement. It was in these circumstances that the Plaintiff's sought an inference that these documents would not have assisted the Defendant's case. [284] It did not seek an inference that it should be inferred that the documents would have been positively damaging. [285] In light of the other evidence relating to the events of 22 June 2017, I do not see the Plaintiff's case as being assisted by the inference sought.
24. It follows that I am not satisfied that the accident occurred in the manner the Plaintiff described. The Defendant submitted that the most likely cause was that the Plaintiff simply tripped or stumbled on the hose and that it had nothing to do with the alleged recoiling of the hose. The Plaintiff did not advance an alternative on the basis of him tripping over the hose maintaining that he did not trip. [286] This was reiterated in closing submissions [287] and highlighted by the Defendant. [288]
25. In deference to the submissions of the parties I would also make the following observations.
26. The Plaintiff contended that the hose was of insufficient reach. The evidence of the length of the hose was that it was approximately 50 metres in length at the time of installation. There is nothing in the evidence to support that in any relevant sense that the hose was other than its 50 metre length. However, once again, I am not satisfied that this was of any consequence.
27. Whilst the Plaintiff stated that "crucially" the hose was changed since the accident, it did not explain what factor made it so. [289] There is no evidence that this had anything to do with the Plaintiff's injury and no questions were asked of Mr Roese relating to the matter.
28. So far as the hose being faulty and not properly maintained as best, I understand this was premised on the hose retracting on the operator when he sought to pull it. The Defendant submitted that there was no evidence of fault in the strict sense but rather this could be the product of the equipment itself that once under pressure the rigid hose became heavy in the sense that if it was not kept tight or taut inertia could cause the reel to turn in the opposite direction as it was a free spinning wheel. Having not accepted the Plaintiff's evidence, I cannot be satisfied that this had anything to do with the accident and that the precautions would have prevented it.
29. It is unnecessary to consider the matter further and in particular the Defence under s 5H of the 2002 Act.
30. It follows that as the Plaintiff has failed to establish that the risk of harm materialised and breach and causation have not been established. Accordingly there must be a verdict in the Defendant's favour. The question of apportionment under section 151Z of the Workers' Compensation Act 1987 (the 1987 Act) does not arise. In the event I am wrong in my conclusion, I proceed to consider the damages I would have awarded had the Plaintiff succeeded.

Pre Accident

1. The Plaintiff was born on 1 June 1965 and is 56 years of age. [290] He described that prior to the accident he was very healthy and walked over 15kms a day. He stated that his left wrist was his best hand before the accident. He had broken his right hand when he was ten years old. [291] Psychologically he stated that he had suffered previously from anxiety and depression as he had been very active and worked a lot of hours. [292] Prior to the accident, he acknowledged taking medication for anxiety and depression. [293]
2. In cross examination, the Plaintiff could not recall seeing Dr Andrew Li (a GP) in 2007. Nor could he recall having loss of concentration at that time. He thought perhaps he had difficulty sleeping back then. He accepted however that he had been prescribed Zoloft an anti-depressant. [294] The Plaintiff also could not recall seeing Dr Li a month later complaining of feeling low, poor concentration, feeling tired or difficulty sleeping. [295] The Plaintiff could not recall increasing the dose of Zoloft from 50 mg to 100mg in 2008 but thought it might have had something to do with breaking his ankle that year stating "it was giving me hell." [296] The Plaintiff accepted that he was taking Zoloft for many years prior to June 2017 and that the dose would possibly go up when he was feeling particularly bad. [297]
3. In cross examination, the Plaintiff conceded that in the 12 months prior to the accident, he had anxiety and depression and was suffering from alcohol withdrawals before 22 June 2017. [298] He conceded that he may not have turned up to work in his previous employment because he was suffering from alcohol withdrawal problems. [299] In seeing Dr Paula Cameron (Psychiatrist) in March 2014, he conceded stating that that he had become more withdrawn from work and socially [300] and that his anxiety gets exacerbated when he is around a lot of people. [301] He indicated a preference for working on his own or in small groups. [302] He conceded having an overwhelming anxiety problem in March 2014 and when he was not working it would get him down. [303] He accepted that he would get panic disorders and would avoid people socially sometimes it's worse than others depending on what's going on his life. [304] He acknowledged that he told Dr Cameron that he had symptoms of social isolation [305] although it was not every day or every week but generally, a matter that affected him all of his life. [306]
4. The Plaintiff also accepted that he told Dr Cameron that he was thinking of relocating to North Queensland. He stated that he used to live there, liked it and wanted to go back and live there and carry out his removalist business. [307] Whilst acknowledging that it was a lot quieter than Sydney, he stated that was not his reasoning for wanting to go there as it was something he always wanted to do. [308]
5. The Plaintiff conceded telling Dr Cameron that he was having problems with his sleep and it had been a problem with him for many years on and off. [309] He conceded that he was being prescribed an increased dosage of Zoloft in June 2009 and by May 2010 he could have been complaining about panic attacks although he could not remember the dates. [310] He conceded that he also could have been receiving counselling about his depression and anxiety before 22 June 2017. [311]
6. The Plaintiff stated that over the years he had been taking Zoloft and the dosage would go up when he was feeling particularly bad. [312] He acknowledged that he would go to doctors whenever he was physically or psychologically unwell and did his best to tell them what was wrong with him at the time and that he would be prescribed medication which he would take. [313]
7. The evidence was that on 25 September 2014 the Plaintiff was referred to Mr Ben Ebert psychologist for psychological review. [314] The Plaintiff stated that months after the accident he had seen Mr Ebert and also Dr Arian at the Emerald Medical Centre. [315]
8. The Plaintiff conceded that in November 2015 he was feeling low possibly complaining of poor concentration and was having difficulty sleeping and possible mood changes. [316] He conceded that in February 2016 he started seeing Dr Mahaliyana more regularly than other practitioners at the Emerald Medical Centre who prescribed Seroquel and Zyprexa. [317]
9. The Plaintiff acknowledged that his weight had fluctuated from time to time and stated that it was a new thing for his weight to go as high as 115kgs but he did not remember it. [318] He recalls being referred to Mind Plasticity which was a rehabilitation place designed to help him with his mental health but stated that he did not go [319] because he could not afford it. [320] In particular, he did not remember seeing Dr Ben Allard (Consultant Psychiatrist). [321] He acknowledged that he was taking various medications including Mirtazapine in respect of his anxiety and depression. [322] However, he was still suffering from social anxiety in May 2016 and in June 2016 he stated that he still had problems with alcohol usage and was suffering from depression. [323]
10. The Plaintiff conceded that in June 2016, he was drinking to excess and at one point he recalled being prescribed Valium. [324]
11. The dosage of Mirtazapine possibly increased leading up to the time of the incident. [325] He acknowledged that in April 2017, he was still having problems with his mental health sufficient for him to go doctors and get medication. [326] He acknowledged being referred to various psychiatrists but he did not remember all of them. [327]
12. He conceded that he was dissatisfied by the way he was treated by his employer after the accident. [328] He further conceded that he thought he was being mistreated and they did not do the right thing by him, he was pretty upset and that lead to some anxiety issues. [329] He conceded that there were issues with respect to his employment and that his employer did a lot wrong. [330]

Post-Accident

1. The Plaintiff described having pain on the outside of left wrist whenever he does any manual work. [331] Deviation was noted in the shape of the left hand side of the wrist underneath the little finger. [332] There was also some scarring on the wrist which is 8cms up from the centre. [333] He described his pain as going down the left wrist underneath the little finger going half way down the elbow. [334] He says the pain can occur at any time even when he is sleeping and it consists of a sharp stabbing pain. [335] The pain can be aggravated by walking and as soon as the pain emerges he has to stop what he is doing. He described it as coming and going and consisting of a stabbing sensation. [336] He described the pain since the second surgery as being the worst. In relation to the pain that he is suffering now compared to prior to the surgery, he admits there has been some improvement. [337] He stated that the pain however is worse when he does anything manual. [338]
2. The Plaintiff denied that by June 2018 he had a full range of pain free movement in his wrist and indicated that if Dr Stewart recorded otherwise he had that wrong. [339] The Plaintiff also denied telling Dr Stewart in July 2018 that he no longer had any pain in his wrist or hand. He accepted that he did not have the pain where the screw and the graft was but stated that he still had pain coming down stating that he was told he was going to have to live with it. The Plaintiff denied telling Dr Stewart that the pain in his wrist has completely resolved. [340]
3. When asked to compare his psychological health now compared to before the fall, the Plaintiff described that after he went to the Royal North Shore Mental Clinic in 2017-18, he was in tears and suicidal and had to see a psychiatrist. Eventually he described that there was a change in his medication. [341]
4. Compared to prior to the accident, the Plaintiff stated that his psychological health was way worse in that he is emotional, always crying, and up and down with big mood swings. He was unable to sleep, has become restless and short with people. He described that anything could set him off. [342] His concentration was characterised as very poor and whilst he use to read, he hasn't read a book in years. [343]
5. The Plaintiff gave evidence that he is now isolated from family and friends. He use to enjoy push bike riding and going for long walks and picnics but is not interested in that sort of stuff. He described that he doesn't want to speak to people, didn't want to talk about it and derived no joy from anything. [344] His main concern was to see a psychologist for help. [345] To this end he was seeing a new therapist he had been referred to by Dr Wong. [346]

Other Co-Morbidities

1. The Plaintiff did not recall being referred to ProHealth Physio on 26 February 2020 for rehabilitation management of his chronic lower back pain remembering it was only is respect of his left ankle. [347] However, he acknowledged that his back was hurting on and off for a long time and both his back and left ankle pain were chronic. He did not consider that his back pain prevented him from lifting and never thought it prevented him from repetitive bending. He described having good and bad weeks. He accepted that in February 2020, he had been referred to a chiropractor. He also accepted that Dr Wong could have referred him to the orthopaedic clinic at Royal North Shore Hospital in respect of his left ankle. He said that he attended once as he found that he could do the stretching exercises at home and did not need to attend a physiotherapist.
2. In April 2020, he stated that he attended on Dr Edward Brain at Macquarie University Hospital Heart clinic following a heart attack. He stated that all up he had 4 heart attacks. [348]
3. The Plaintiff accepted that between his low back problems, left ankle and heart problems, he had been prevented from exercising as much as he used to and that was the reason that his weight had increased in that he was exercising even less now. He accepted that that was the reason that his weight had gone from 112 or 113 to 127 (kg) about a year ago acknowledging that he was exercising less. He stated that when he referred to his weight increase in evidence in chief he was stating a fact rather than what it was due to. [349]
4. The Plaintiff accepted that in April 2020, Dr Wong provided him with a certificate for "Housing Commission" accommodation but did not accept that one of the reasons was because of his left ankle. When it was put to him that it was because of difficulty negotiating stairs he stated that he was thinking about the future because to get in requires 10 years. He did not accept that his back and ankle were significant factors preventing him from working at the moment maintaining that notwithstanding his left wrist he could plod on. [350]

Loretta Moretti

1. Ms Moretti gave evidence that before the injury the Plaintiff was fit and active in sports and outdoor activities. She stated that her observations of his left wrist were that it was fine before the accident and that he came across as a normal person. Sometimes the Plaintiff would come home from work and had a bit of a bad day but otherwise he was a normal person. [351]
2. In cross examination, Ms Moretti indicated that she did not ever observe the Plaintiff would have problems when he was with a lot of people. [352] She acknowledged that she was aware that before June 2017 the Plaintiff had had anxiety and depression. Although at one point stating that she had never really seen the Plaintiff drunk, she clarified that she may possibly have on one occasion he went to hospital for detoxing. [353]
3. Since the accident, Ms Moretti stated that the Plaintiff's personality changed and he always seems down and depressed. She described the Plaintiff as sort of antisocial and afraid of going out and things and just seeing other people. She stated that he often can't face leaving the house. She added that he was certainly not the happy person that she recalled meeting 15 years previously. Ms Moretti did not know if it was depression or anxiety but he always seemed a very forlorn sort of person. [354]
4. Ms Moretti stated that the Plaintiff has put on a lot of weight since his injury. [355] Ms Moretti stated that was mostly in the last 12 to 18 months. She accepted that the Plaintiff had complained about his back and that this had gotten worse in the last 12 to 18 months. [356] She did not know whether the Plaintiff had treatment for his back or ankle during the last 12 months.

Pre Accident Treatment

1. Clinical records from the Emerald Medical Centre being from the Plaintiff's general practitioners were tendered.
2. Di Andrew Li's clinical record reveals an entry on 21 December 2007 as follows: history of depression, panic attack feeling low / anxious for 6/12 poor concentration tiredness difficulty in sleeping mood changes no suicidal thought history of R forearm pain for 3/12 intermittent worse on movements 0/E R forearm: tenderness movements ok discussed management patient education counselling analgesia resting GP management plan and team plan performed today follow up [357]
3. Amongst the actions taken on that occasion, Zoloft 50 mg once daily was also prescribed.
4. On 9 October 2007, Dr Li's entry recorded: Still feeling low Poor concentration tiredness difficulty sleeping mood changes no suicidal thought still R forearm pain U/S result discussed advice given discussed management counselling patient education advised on sleep techniques follow up [358]
5. On 24 September 2008, by Dr Radha Sivakumaran recorded that the Plaintiff was smoking 30 cigarettes a day, taking speed once a week and does not consume alcohol. He was given counselling from smoking and drugs and advised to have a health check-up and Zoloft was increased from 50 mg to 100 mg once daily. [359]
6. Thereafter, Dr Sivakumaran recorded on 26 September 2009 that the Plaintiff has a fracture of the left ankle 8 weeks prior, the plaster was removed two weeks previously and he was having physiotherapy. Advice as to management was given and Mobic was prescribed. [360]
7. The Plaintiff saw Dr Li for a follow up in respect of his left ankle on 14 October 2008 complaining that he was still in pain. On examination, mild swelling and tenderness was noted and Mobic was again prescribed. [361]
8. Zoloft 100mg 1 dose daily with 5 repeats was prescribed on 10 June 2009. [362]
9. On 31 May 2010, the Plaintiff saw Dr Carl Wong who noted that he complained of panic attacks but less frequently since on Zoloft but still bad when he gets them. Dr Wong noted that this affects his work and life. Zoloft was prescribed again at 100 mg 1 dose daily to be taken in the morning. [363] A further prescription for Zoloft 100mg 1 dose daily with 5 repeats was issued on 28 August 2010. [364]
10. On 21 February 2011, the Plaintiff saw Dr Najiba Arian whose clinical notes recorded: has been taking Zoloft for years He has had social phobia he is a removals anxiety for long time brother bipolar mother anxiety smoke cigarette smoked posts for five years he was advised to see gastroent(e)rologist he was advised to come for full check up [365] (Corrected)
11. Zoloft was again prescribed 100mg 1 tablet in the morning with 5 repeats. [366]
12. Zoloft 100 mg was again prescribed on 20 June 2011 with 1 tablet and five repeats, 28 October 2011 (increased to 1 ½ tablets in the morning) with 5 repeats and 21 June 2012 1 ½ tablets in the morning with 4 repeats. [367] On 12 December 2012, Dr Wong saw the Plaintiff who advised that he had self-increased Zoloft to good effect. Dr Wong prescribed Zoloft 100 mg increasing from 1 ½ to 2 tablets in the morning with 5 repeats. [368] The Plaintiff saw Dr Arian on 1 June 2013 who recorded that the Plaintiff was depressed taking Zoloft and was drinking lots of alcohol. A further prescription was issued for Zoloft 100mg to be taken as 2 tablets in the morning. [369]
13. On 8 July 2013, the Plaintiff saw Dr Arian who recorded: He is depressed he is in tears his mother just give up to live any longer He has one brother one sister Has no relation with them His sleep is poor he has poor concentration poor appetite He is non-functional has nil motivation has had good childhood His father passed away form cancer of foot melanom(a) He finished year ten He got worse after his mother passed away He is still drinking on and off he said not heavily four five times a week some times more some times less He has never seen a psychiatrist He has been taking Zoloft for few years [370] (Corrected)
14. Zoloft 100mg 2 tablets in the morning was continued. [371]
15. On 10 December 2013, the Plaintiff saw Dr Wong whose record included: …. 2..depressed, lethargic anxious was self-employed (removalist company) but stopped in feb nil working til(l) recently started work again, working for someone else for (t)he last few days but not coping due to stress noted Dr Arian has recommended Centrelink MC to him in the past re his issues. [372] (Corrected)
16. Zoloft was again prescribed 100 mg to be taken 2 tablets in the morning with 2 repeats and the potential need to see a psychologist was noted. [373]
17. On 21 February 2014, the Plaintiff was placed on a Mental Health Care Plan by Dr Najiba Arian for alcohol dependency anxiety and depression and panic attack. [374] Dr Arian also referred the Plaintiff to see Dr Paula Cameron. [375] On 25 February 2014, the Plaintiff was referred to the Drug and Alcohol Unit at the Herbert Street Clinic for opinion and management of his alcohol dependency. [376]
18. On 8 April 2014, Dr QH Norman Phan prescribed Zoloft 100mg to be taken as 2 tablets in the morning with 5 repeats was prescribed on 8 April 2014. [377] On 18 June 2014, the Plaintiff saw Dr Darshanee Mahaliyana who noted that he has been seen by a psychiatrist and started on Zyprexa as a trial and the dose has been increased. [378] The Plaintiff was seeking a script. Prescriptions were given for Zyprexa 10 mg 1 wafer daily and Valium 5mg 1 tablet 3 times a day. A diagnosis of anxiety was recorded. [379] The Plaintiff saw Dr Mahaliyana on 2 July 2014, 4 July 2014 and 5 July 2014 essentially seeking Valium. On the later occasion, a prescription for Valium 5mg 1 tablet twice as day was given. On 26 August 2014, the Plaintiff saw Dr Mahaliyana who prescribed Zoloft 100 mg 2 tablets in the morning.
19. On 25 September 2014, the Plaintiff saw Dr Mahaliyana again who recorded: feeling anxious and having agor(a)phobia having suicidal ideation but no plans he was referred to a Psychiatrist under GP mental health plan but not to a Psychologist [380] (Corrected)
20. Dr Mahaliyana referred the Plaintiff to Mr Ben Ebert advising that he could present to emergency if he is not coping to see the mental health team. [381]
21. On 10 November 2015, the Plaintiff saw Dr Arian who recorded that he was "mentally ill." Complaints were recorded of feeling low, poor concentration, tiredness, difficulty sleeping and mood changes. Dr Arian was advised that there were no suicidal thought and nil auditory or visual hallucinations. Dr Arian discussed management and provided counselling. [382] A referral was also made to a Dr William for management of depression and anxiety. [383]
22. On 21 November 2015, the Plaintiff saw Dr Arian who referred her to Dr Andrew Hartshorn. [384] The letter to Dr Hartshorn provided the following background: Thank you for seeing Richard Gillam for an opinion of his chronic overwhelming Anxiety which he says from early adolescence and has had impaired capacity along the way. He describe(d) panic disorder and social avoidance and social isolation. He was able to manage to manage his removals Business quite comfortably til(l) some times the situation was changed and he decided to move to (Queensland) where believes (to) be (quieter) population and he will be able to manage more effectively as a removalist and he will be better. He was not able to continue his work become more anxious and return back to Sydney. His psychiatrist prescribe(d) Zyprazxa 5mg and Seoquil 25mg. [385] ….(Corrected)
23. Zoloft 100 mg, 2 tablets in the morning was amongst the medication recorded. [386] The Plaintiff stated that he did not recall seeing Dr Hartshorn. [387]
24. On 25 November 2015, the Plaintiff saw Dr Arian for review and Zoloft 100mg 2 tablets in the morning with 5 repeats was again prescribed. [388]
25. On 23 March 2016, the Plaintiff was seen by Dr Mahaliyana requesting that he be referred to a psychiatrist. The clinical notes recorded that he started working in the council and his anxiety got worse. The Plaintiff was referred to Mind Plasticity. The referral letter stated: Thank you for seeing Richard Gillam for an opinion and management. he has a long standing history of anxiety, depression and alcohol abuse. He was previously seen by Dr Paula (Cameron) in Chatswood who retired recently. His anxiety got worse after starting a new job in Council. Please assess his medications…(Corrected) [389]
26. Despite having denied that he attended Mind Plasticity the evidence was that he did, being seen at that practice by Dr Ben Allard (Psychiatrist) on 6 April 2016, 20 April 2016, 11 May 2016. [390] Dr Allard reported on 11 May 2016 stating: … He suffers from anxiety (generalised), and social anxiety particularly at work. He has tried a variety of medications, including Sertraline, Olanzapine, Paroxetine, Quetiapine, Pregabalin, Venlafaxine- as well psychological therapies. We have has some success with Mirtazapine-currently 45mg- about to increase to 60mg, and pm Diazepam- currently 15 mg a day - only while he is at work - he does not crave it when not at work. Ideally we will reduce his Diazepam once his anxiety improves, but for now it gives him some relief and helps him function at work. He does not drive while taking diazepam. I have commenced him on Inderal (a beta blocker) 10 mg- 20 mg prn - suggesting he try this instead of Diazepam - to avoid tolerance/dependence. Please monitor his blood pressure. I also note on his blood test that he has elevated Lipids, and LFTs (he may warrant investigation with a liver U/S? as well as high TSH, low T4 - please see recent blood tests from Medlab… [391]
27. On 23 May 2016, Dr Mahaliyana noted that the specialist had commenced the Plaintiff on Mirtazapine 45mg 1 tablet daily. [392] On 8 June 2016, Mirtazapine 45mg 1 tablet daily 5 repeats, Lipidil 145mg 1 tablet daily with 5 repeats and Valium 5mg 1 tablet 2 times a day were prescribed. [393]
28. On 13 July 2016, the Plaintiff saw Dr Mahaliyana who recorded: For a script Still feeling anxious but is working full time now Discussed about the psychiatrist letter takes Valium 2 tablets a day Did not take Inderal which was prescribed by the Psychiatrist Actions Prescriptions Management To take Inderal when he is feeling anxious [394]
29. Vailum 5mg 1 to 2 tablets a day was prescribed. [395]
30. On 22 November 2016, the Plaintiff saw Dr Mahaliyana who recorded: care plan review Did not see a Psychologist for a long time Asking if he can wean-off Mirtazapine and to take Zoloft instead Did not take his medications for 4-5 months His cholesterol and Triglyceride level was very high in the last blood test [396]
31. Notwithstanding the request, Mirtazapine 45mg 1 tablet with 5 repeats and Valium 5mg 1 tablet were prescribed. [397] A care plan was prepared noting that the Plaintiff felt that Mitrazapine was not effective. The plan also recorded that the Plaintiff had stopped alcohol for 6 years but recommenced earlier that year. [398]
32. On 9 December 2016, the Plaintiff was referred by Dr Mahaliyana to Dr Sajeeva Jayalath from Mind Connections. The letter recorded: Thank you for seeing Richard Gillam for your assessment and management of severe anxiety and depression. Richard has a long history of depression and anxiety and a history of alcohol abuse. He was previously treated by a Psychiatrist but she retired last year. He was prescribed many antidepressants during the last ten years. He was initially treated with Sertraline which he took for a long time. His anxiety and depression after his mother passes away. He was getting panic attacks and suicidal ideation in the past. His medications were changed by the Psychiatrist many times. because his symptoms were getting worse. During last five years his prescribed Sertraline, Olanzapine, Paroxatine, Quetiapine, Paragabalin, Vanlafaxine and Mirtazapine. he was responding to Mirtazapine initially but now he complaints that it is not effective. he was referred to Psychologist but did not see the Psychologist regularly. Previously, he was self-employed but now he has started working for the City council. He is non-compliant with his medications. He was given prescriptions for hypercholesterolemia but he stopped taking them after one month and he said that he does not know why he stopped it…. [399] (Corrected)
33. On 4 April 2017, the Plaintiff saw Dr Mahaliyana who noted that he was not keen to see a psychiatrist. Mirtazapine 15mg and 45 mg 1 tablet each a day with 5 repeats were prescribed. A care plan was prepared which noted that the Plaintiff was not seen by a psychologist or psychiatrist but was still anxious and depressed. [400]

Post-Accident Treatment

1. Following the accident, he was taken to Auburn hospital. The Plaintiff gave evidence when he was taken to Auburn Hospital, the pain was excruciating and he was given some pain killers to try and settle things down. [401] Thereafter, the Plaintiff came to be treated by doctors at the Emerald Medical centre, Dr David Stewart, Everyday People Psychology and the Cheerful Clinic as well as engaging in hand therapy.
2. The Plaintiff stated that since the accident his health had gone downhill. He stated that he had put on 30 kilograms and had four heart attacks as well as taking medication. He stated that he had left wrist pain 3 cm below the hand and pain on both sides of the thumb. He also demonstrated a deviation in the shape of the left side of his left wrist underneath his little finger. On the inside of the wrist, he identified pain underneath the little finger on the side and coming half way down the elbow. He stated that he gets that pain at any time including when he is sleeping and it can be aggravated by how he walks. He demonstrated how he uses his right hand to stabilise it. The pain was described as stopping immediately after he stops what he is doing. He stated that the pain is better now than before his final surgery.
3. The Hospital discharge summary records that he presented with: Instantaneous pain and deformity to left wrist. The summary records that on examination: Obvious deformity to wrist. Able to move all fingers, grip strength 5/5. Wristlocked, nil AROM. [402] Medial, ulnar, radial nerves sensation intact. Motor intact , weak in context of pain. Cap refill <2sec. Fingers warm and perfused. [403] Investigations revealed: Closed comminuted distal radius fracture with angulation + a concomitant ulnar styloid avulsion fracture In terms of management, the following was recorded: Closed reduction under sedation in resus. Wrist immobilized in cast and elevated in sling Post-reduction XR - satisfactory alignment Pain controlled. Nil complications post sedation. Neurovascularly intact, good cap refill, hand warm and perfused on dc Discharged home to await phone call to advise of orthopaedic to follow up The Plaintiff was discharged from hospital on 23 June 2017. [404]
4. On 23 June 2017, the Plaintiff consulted his local Dr Darshanee Mahaliyana. [405] That same day, Dr Mahaliyana referred the Plaintiff to see Dr David Stewart. In the referral, it was noted that the Plaintiff had a previous history including: Hypertriglyceridaemia 2006 Anxiety 21/09/2007 Depression 21/09/2007 Right forearm/pain 21/09/2007 Right tendenotis 10/12/2013 Hyperforinism 10/12/2013 Hypercholesterolaemia [406]
5. Medication was noted to consist of Crestor, Lipidil and Mirtazapine 15 and 45 mg.
6. On 26 June 2017, the Plaintiff had a CT scan performed which was reported on by Dr Phillip Hung which was reported as follows: "A comminuted facture of the distal radius and an avulsion injury of the ulnar styloid process are noted. There is persistent dorsal angulation of the distal radial fracture fragment and of the distal radial articular surface. There is slight dorsal angulation and displacement of the distal ulnar fracture fragment. No fracture is evident in the carpus. No elbow joint injury is evident." [407]
7. On 27 June 2017, the Plaintiff saw Dr David Stewart who noted that the Plaintiff had a grossly swollen wrist but no sign of median or ulnar compression. He opined that the Plaintiff would require an operative fixation of the left distal radius fracture and probably also the ulna styloid if it still unstable after fixation of the radius. He also advised a wrist arthroscopy to help with the reduction of the intra-articular fragments. [408]
8. An arthroscopic assisted operative fixation of the left distal radius and ulna was carried out at the North Shore Private Hospital on 28 June 2017 and the Plaintiff was discharged the following day. Operative findings were comminuted, intra-articular articular fracture of distal radius, large ulnar styloid fracture with unstable DRUJ (Distal Radioulnar Joint Instability). [409] (First Surgery)
9. On 4 July 2017, the Plaintiff saw Dr David Stewart who recorded on examination the wounds were healing nicely and the Plaintiff was starting to recover some movement in the wrist. He noted that he had referred him to the North Shore Hand Therapy for some range of motion exercises and a splint and will see him again in 5 weeks with an x-ray. [410]
10. The Plaintiff stated that he went to hand therapy starting off three days a week and then once a week to build up some strength. [411]
11. On 11 July 2017 the Plaintiff saw Dr Mahaliyana. The clinical notes recorded: Review had surgery on the left wrist Pin and plate inserted Workcover certificate given by Specialist not fit for work Discussed with Rehab for light duty when the workcover certificate expires [412]
12. On 11 August 2017, the Plaintiff saw Dr Mahaliyana. The clinical notes record: For renewal of workcover certificate Last one was issued by the Specialist having hand therapy Review next week by Dr Stewart He has not (b)een taking his medications two years ago his cholesterol level was very tight Explained about high risk of CVA or AMI He said that it will not happen to him Counselled about the risk … [413] (Corrected)
13. Lipidil 145 mg 1 tablet daily with 5 repeats and Mirtazapine 15 mg 1 tablet daily with 5 repeats were amongst the medications prescribed. [414]
14. On 24 August 2017, the Plaintiff saw Dr Mahaliyana. The clinical notes recorded: C/O (pa)in on the left hand ager working On restricted duties he said that the work aggr(a)vates the pain Certificate issued by Dr Stewart Di(s)cussed with Rob Daking (Physiotherapistpist), Rehab He is going to see him at his place of work. [415] (Corrected)
15. On 25 August 2017, the Plaintiff saw Dr Carl Wong who recorded: Currently within a ongoing Workcover claim regarding workplace injury to arm requiring surgery He is now 2 months post forearm fracture repair Under the care of my practice colleague Dr Mahaliyana Noted orthopaedic surgeon himself has been completing all his WorkCover certificate Has now become acutely depressed regarding hospital Noted has history of depression In distress today; requesting to see psychologist Noted this is his first workcover claim Gentle explanation of WorkCover process; advised based on progress, his insurance will likely cover ongoing cost of seeing psychologist, as his symptoms are likely secondary and reactive to his situation Feeling distraught today, though denies any suicide or serf-harm ideations or plans [416]
16. The Plaintiff reported to Dr Carl Wong on 29 August 2017 and it was noted that he had become acutely depressed regarding hospital and requested to see a psychologist. [417] He was referred to Everyday People Psychology who carried out sessions on 31 August 2017 and 18 October 2017. [418] The case notes on both occasions reveal anxiety around the injury, work and treatment.
17. On 26 September 2017, the Plaintiff had an x-ray to the left wrist that was reported on by Dr Richard Perry as follows: History: Progress Findings: There has been internal fixation of a distal radial fracture. There is a plate on the volar aspect of the distal radius. There has been a fracture of the ulnar styloid this has been fixed with a plate. However the plate is fractured. The alignment is unchanged. [419]
18. On the same day the Plaintiff saw Dr Stewart. Although noting some improvement in the range of movement, he recorded that the Plaintiff is probably suffering some discomfort relating the tendon irritation from the prominent metal work. Dr Stewart opined that the plates should be removed from the radius and the ulna. A CT scan was arranged. [420]
19. On 28 September 2017, the Plaintiff had a CT scan which was reported on by Dr Andrew Carter as follows: Report: Previous internal fixation of the distal and radius noted. The ulnar plate is fractured, with approximately 4mm lateral and proximal displacement. There is no evidence of bony union of the fracture at the base of the ulnar styloid process. This fracture is separated by approximately 4-5 mm. Volar plate and screw ORIF distal radius in good position and alignment. The screws appear appropriately sited with no adjacent osteolysis. The fracture of the cortex remains visible, however, there does appear to be early bone bridging centrally. … [421]
20. On 3 October 2017, the Plaintiff saw Dr Stewart who having viewed the CT scan reported that there was no sign of any union of the ulnar styloid and at some point the Plaintiff will require the removal of the metalwork and revision of fixation of the ulnar styloid, possibly with some bone graft. He noted that the Plaintiff was keen to continue working at the moment to see how things progress. Dr Stewart could see no problem with this. [422]
21. On 18 October 2017, the Plaintiff again saw the psychologist who recorded that he was almost back to full duties. The DASS 21 test was administered which noted the Plaintiff's depression, anxiety and stress to be labelled on a scale as extremely severe. [423]
22. On 5 December 2017, the Plaintiff saw Dr Najuba Arian in respect of medication. The clinical records record: Objective: Severe depression He is looking measureable He was strongly advised to follow with DR Wong Assessment: Not in a good mood He just needs his medication has not time to spend with me. He likes to follow with DR Wong [424]
23. The notes record that the Plaintiff was prescribed Mitazapine 15 mg and 45 mg 1 tablet each a day with 5 repeats. [425]
24. On 6 December 2017, North Shore Private Hospital recorded the removal of the metal work and bone grafting to the distal ulna. The findings made were a united radial fracture with prominent volar plate, non-union of ulnar styloid with broken plate. [426] (Second Surgery)
25. On 15 January 2018, the Plaintiff saw Dr Carl Wong whose clinical notes record: progress noted 5 weeks post bone grafting and removal of metal work from left wrist Workcover insurance claim his orthopaedic hand surgeon handles and completes all his W/C paperwork himself next review is in a few weeks does not need to take any analgesia also noted history of chronic depression/generalised anxiety disorder/social anxiety disorder states this predates his current insurance claim, but the current uncertainty of his injury prognosis makes his mental illness worse. Last saw psychiatrist almost 2 years ago now; ceased as psychiatrist moved from practice Note past history of multiple and different pharmacotherapies trialled; no side effects to cause cessation; lack of efficacy? Possibly due to sub therapeutic doses Currently on stable dose of mirtazapine 60 mg daily; feels it is ineffective; discussed option and agreed to trial different type Option also of a new psychiatrist referral; patient not happy to defer this depending on effects of new anti-depressant trialled recommended and agr(e)ed to trial with Valdoxan; Patient warned about side effects and possible complications of medications, including costs Clinically today is reactive and no signs of acute depression Responsive appropriately Denies any suicide ideations or self-harm Vocational trained as driver for road maintena(n)ces etc due for HC admits to self-ceasing his cholesterol medications Diagnosis: Depression Generalised Anxiety Disorder Social Anxiety Disorder ….. [427] (Corrected)
26. The Plaintiff was prescribed Mirtazapine 15mg and 45mg 1 tablet each a day with 5 repeats and Valdoxan 25 mg 1 tablet a day. [428]
27. On 16 January 2018, the Plaintiff saw Dr Wong who recorded in his clinical notes: Results discussed over the phone No transaminitis through elevated GGT 445 Likely in the context of excessive alcohol consumption Difficult to elicit actual amount he is taking: drinks a variable amounts daily Prefers to drink spirits; is not to drink up to 8 glasses/day Reason for visit: Alcohol overuse Plan: Given transaminitis, advised safe and okay to now start Valdoxan Review in 4 weeks as planned with preceding LFT check Advice given on alcohol reduction and for formal further review at next appointment Patient understands and agrees with the above [429] (Corrected)
28. On 16 January 2018, the Plaintiff voluntarily admitted himself to the St Vincent Hospital Gorman Unit under Dr Jonathon Brett for management of alcohol use and dependence complaining of alcohol induced pancreatitis symptoms. He was discharged to attend an outpatient's clinic. [430]
29. X Rays reported on by Dr Andrew Carter dated 23 January 2018 recorded: Comparison made with x-ray 26/9/2017 Plate and screw have been removed from the distal ulna, there is internal fixation of the ulnar styloid process by a cannulated screw. There is no calcified bone union between the ulnar styloid process and remainder of the ulna. There is no minor smooth lucency adjacent to the ulnar screw. Volar plate has been removed from the distal radius. There are residual screw is the distal radius. No other change in appearance for the distal radius since previous injury. [431]
30. The Plaintiff saw Dr Stewart the same day who recorded that on examination he has some tenderness over the distal ulna and an improving range of motion of the wrist. He noted that the Plaintiff still feels that the wrist was quite weak and poorly co-ordinated. He noted the x-ray results and did not believe that the Plaintiff needed to be immobilised any further and could work on flexion and extension exercise of the wrist and also strengthening of the fingers. [432]
31. On 23 February 2018, the Plaintiff saw Dr Wong who recorded:
32. … States developed intolerable anxiety attack with medications self ceased after 5 days Discussed and agreed and patient came to see psychiatrist Patient awaiting return phone call from local mental health unit regarding bulk-billing psychiatrist Also provided other name options today Reason for visit Mental health consult [433] …
33. Dr Wong ordered that Valdoxan be ceased and Mirtazapine 15 mg changed from ½ tablet before bed for 2 weeks to 1 tablet before bed. [434]
34. On 25 February 2018, the Plaintiff called Feleena Emerton Occupational Therapist at Lower North Shore Community Health. The record discloses that the Plaintiff felt on edge and hopeless and that he had been feeling like that for weeks. He denied suicidal ideation or intent. He described that 3 weeks previously he had been prescribed Valdoxan which made him panicky and was driving a car to a new job when he thought he would crash and then rejected the job and ultimately ceased Valdoxan. He sought referral to a psychiatrist. [435]
35. A follow up appointment occurred on 27 February 2018. The Plaintiff was seen Mr Andrew Phan psychologist at Lower North Shore Community Health, who recorded: complex presentation and assessment remains in progress. current presentation appears to be precipitated by trial of valdoxen that increased anxiety. Psychosocial stressors chronic pain, worker's compensation, financial stress. Socially isolated, estranged from family, longstanding interpersonal issues. Co-morbid hazardous alcohol use- self soothing strategy, self-referred to our service, actively engaged in treatment for his physical injury as well as mental health, agreeable to take mediations, engage in therapy , see D & A counsellor ? Axis 1 disorder- anxiety , mood disturbance ? Personality disorder- reports longstanding interpersonal conflicts, long periods of unemployment estranged from family
36. A plan was developed to assist the Plaintiff with a continuation of the assessment proposed for the following week. [436]
37. The Plaintiff saw Dr Wong on 1 March 2018. The clinical notes recorded: noted self- referred to PECC unit appt on Monday Unit request and patient consented for transfer of health summary list Also noted has exacerbation of erythematous areas clinically consistent with rosacea Areas affected are in T-zone and bilateral cheeks and nasolabial folds and around the mouth patient adamant it is due to mirtazapine: possibly true when checking PI today Given likely change of medication by psychiatrist next week as it has been not working, discussed and agreed to treat facial rash conservatively To strongly adhere to last on diet changes regarding rosacea management Also 3 days post rolled Lankle Noted ankle surgery 10 years ago No problem on ankle til recent injury Likely there is no active swelling or erythema; there is mild tenderness over medial malleolus Equivocal tenderness over the ATFL Diagnosis: Left Ankle Sprain Reason for visit: Review … [437]
38. Dr Wong prescribed Voltaren 50mg 1 tablet 3 times a day. [438]
39. The Plaintiff saw Dr Carl Wong on 13 March 2018 and recorded him suffering an acute anxiety and particularly he was unable to answer his telephone or take messages particularly from his insurance company. [439] Valium 5mg 1 tablet a day was prescribed. [440]
40. On 14 March 2018 the Plaintiff saw Dr Wong who recorded: attends for MH review feeling better much more settled and not significantly anxious like yesterday Has had 10 mg Valium last night and again this morning Still unable to answer phone calls from insurance Has catastrophic type ideations of bad outcomes attached to Association of Insurance Arranging for an advocate to liase on his behalf with insurance as per my recommendation yesterday Noted need to find a W/C-accredited psychologist for ongoing review (Previous one non-accredited) Patient will get back to me regarding details of the preferred provider Long discussion in regards to access and availability of his medical record to his insurer Outlined the pros and cons of the above Patient electing for medical records that postdate work cover injury date, and only workcover related consultations Reason for visit: Mental health consult Plan: Mental health unit review in 2 weeks Review here at approximately same time Patient to stick to one tablet twice a day Valium prn Patient to obtain psychologist preferred details for referral Planned hand surgeon review next week [441]
41. The Plaintiff saw Dr Stewart on 20 March 2018. Dr Stewart noted that the Plaintiff was still experiencing ulnar sided wrist pain and x-rays again show no further union at the site of the bone grafting and also loosening of the screw consistent with a failure of the bone graft procedure. Dr Stewart recommended further surgery to remove the screw and the ulnar styloid fragment and if the wist is unstable he may require a repair of the fibrocartilage complex. [442]
42. On 21 March 2018, the Plaintiff saw Dr Wong who referred him to a psychologist. [443]
43. On 13 April 2018, the Plaintiff saw Dr Wong who records: Undergoing a lot of stress still Waiting for his insurance to approve on seeing a psychologist Developing clinical rosacea over his T-zones Likely worsened by his current stress Diagnosis Rosacea … [444]
44. Valium 5mg 1 tablet twice a day was prescribed. [445]
45. On 23 April 2018 at 12.11am, the Plaintiff attended Lower North Shore Community Health and was spoken to by Darrel Hannam (Registered Nurse). He noted that the Plaintiff was teary at times and mostly frustrated with the bureaucratic procedures he has to go through with the insurance company and there was difficulty in getting a psychologist approved. [446] He was subsequently seen at around 14:23 by Dr Orlick and Mr Hannan. The progress note recorded that the Plaintiff panic symptoms resolved which the Plaintiff attributed to fluvoxamine. Sleep continued to be problematic and the Plaintiff was tired during the day feeling hopeless and overwhelmed. The Plaintiff was noted to be pessimistic about the outcome of surgery and was looking at training in a new field. The impression recorded was that the Plaintiff had an ongoing crisis and borderline personality disorder. The Plaintiff was advised as to his medication, advised to persist with finding a psychologist. The Plaintiff was to be followed up after surgery. [447]
46. On 22 April 2018, the Plaintiff was contacted by Dylan Lane (Psychologist from Lower North Shore Community Health) by phone. Mr Lan's notation was that the Plaintiff's mood was a little flat and he described ongoing anxiety though with no more instances of panic. The Plaintiff is recorded as describing the stress of having insurance company hassling and pressuring him. It noted that the Plaintiff thought that his mood is not very much better and he thinks it might be the wrong medication for him. [448]
47. On 26 April 2018, the Plaintiff was again admitted to the North Shore Private Hospital. Dr Stewart noted excision of the ulnar styloid non-union and stabilisation of the distal radioulnar joint being undertaken. [449] The discharge summary noted that he had a wrist fracture 3 months previously and depression and anxiety. [450] (Third Surgery)
48. On 16 May 2018, the Plaintiff saw Dr Wong who recorded: Case conference with rehabilitation coordinator Julia from Pinnacle Informed today for the first time that I was now the primary coordinator of his certificate paperwork which I do not have prior knowledge or consent for Informed that his orthopaedic surgeon is unable to continue with this Note currently patient is deemed completely unfit to work Given the circumstances and to avoid patient disadvantage, I was agreeable today to continue Progress Is now 12 months post his third surgery Saw his orthopaedic surgeon last week (report Unavailable); patient states no specific management changes then Next orthopaedic review in 2 weeks which is when his current paperwork expires Continues to see his psychologist 1-2 weekly Continues to see his physiotherapist fortnightly Today rehabilitation coordinator recommended and I concurred with vocational assessment Patient keen to start a free TAFE course equivalent in aged care sector Noted this would involve a large degree of physical component Advised patient that depending on his prognosis, he may be unable to successfully transition to this new vocation, and would be prudent to keep if as one of many options Patient understands and agrees Plan: Review in a few weeks soon after next Orthopaedic surgeon review Details of next significant dependent on orthopaedic surgeon's recommended ongoing management To contact all relevant personnel to advise and provide progress reports Review more at next appointment [451]
49. On 16 May 2018, Dr Wong wrote to Dr Stewart advising that he had taken over the Plaintiff's primary care from Dr Mahaliyana stating: I have asked him to continue seeing his hand physiotherapist fortnightly, and his psychologist every 1 or 2 weeks. He continues to be impacted by severe mental health issues which are impacting on his recovery It was recommended for Richard and he has agreed to undertake vocational assessment for suitable job opportunities in the event of various prognoses for his wrist. Currently he is keen to seek further training in aged care which would eventually involve a large physical component. [452]
50. On 5 June 2018, the Plaintiff saw Dr Stewart who recorded that the Plaintiff's wrist was comfortable and that he has a full range of pain free pronation and supination. As noted at [156] the Plaintiff did not accept that this was the case. Dr Stewart recommended that the Plaintiff start to wean off from the splint and work on strengthening exercises with hand therapists. [453]
51. On 6 June 2018, Pinnacle Rehabilitation produced a transferable skill analysis which identified that the Plaintiff could return to work in the following vocations: Street Sweeper Operator 40 hours per week earning $981 per week based on Job Outlook Australia Road Traffic Controller 40 hours a week earning $1034 per week based on 40 hours a week based on Job Outlook Australia Rail Protection Officer based on 40 hours a week earning $1034 based on 40 hours a week based on Job Outlook Australia
52. Some retraining would be required to fulfil the task associated with Road Traffic Controller and Rail Protection. The Plaintiff was noted to be most interested in the latter position after having conducted his own research. The report identified re-training recommendations and proposals to advance the Plaintiff's capacity and employability. [454] The same day Dr Wong responded that whilst the Plaintiff could work physically in the jobs identified he was psychologically not fit to work. [455]
53. On 8 June 2018, the Plaintiff saw Dr Wong for review. Dr Wong noted that the Plaintiff saw the hand surgeon 2 days ago but no interim report has been provided to him to gain understanding of current partial incapacity. Dr Wong noted that the Plaintiff continued to struggle with mental stress and he was advised of importance and accepted case conferences with providers at future consultation. Dr Wong noted that the Plaintiff needed a new psychiatrist Workcover referral. Voxam 100 mg 2 tablets daily with 5 repeats were prescribed. [456]
54. On 19 June 2018, the Plaintiff saw Dr Wong who recorded: states has been feeling more anxious Reveals he has been started on a medication prn for this duration but cannot recall the name After pharmacy enquiries, noted he is being Rx quetapine (as below); taking only 1 tab daily Patient has yet to organise a follow-up mental health psychiatrist appointment as advised Strongly advised him of the importance of persisting with contacting them to arrange a follow-up appointment for his ongoing management care. Noted case conference planned for tomorrow Orthopaedic surgeon report received Now to be weaned off hand splint, and for hand shifting exercises Diagnosis: Depression Reason for visit: Anxiety Review … [457]
55. On 19 June 2018, at 16.57 the Plaintiff self-referred himself to Lower North Shore Community Health and was triaged by Registered Nurse Jack Chau who noted: Self-referred, feeling bad, really down, having recurrent suicidal thoughts. Very low in mood, depressed, feeling trapped. "I don't know what to do." "I wanted to kill myself." Richard stated that his medications are not working, despite he still takes them. Stated that he saw his GP Dr Karl Wong today, who recommended Richard to see a psychiatrist to have his medication reviewed. Still seeing his psychologist Benjamin Ebert, the sessions are helpful. "He is someone who helps to bounce my thought off, he listens, he creates some feedback," Richard stated that he will not act on it, he is very frustrated he has these thought all the time. Sleep: disrupted, quetiapine helped a bit Appetite: poor Energy level: nil Richard presented as teary, frustrated, angry, and agitated throughout the conversation, gradually settled down , he was able to guarantee his safety tonight, and agreeable for support call from EHT/intake. … Overall Clinical Impression A 53 year old male self-referred for low mood, suicidal ideation, and GP recommended medication review in the context of long lasting depression from work and recurrent panic symptoms. [458]
56. On 20 June 2018, Dr Wong recorded: attended with rehab provider Julia RTW plan discussed All parties concurred for trial of work- 4 hours a day/3 days a week For regular review Positive reinforcement and encouragement to patient that return to work is part of his overall management care Patient understands and accepts Noted patient has a follow-up mental health up next week [459]
57. On 26 June 2018, Dr Wong recorded: Phone call received from social worker at mental health team Noted patient missed appointment at the clinic; registrar and consultant psychiatrist were they waiting for him Clinic has advised does not need any further specific psychiatrist involvement, and mediation regime should be stable Has refer back to GP and community psychologist for further follow-up Acute crisis/mental health support always still available at Hospital [460]
58. On 26 June 2018, the Plaintiff saw Dr Wong in a case conference with his rehabilitation provider. The clinical notes record: states that his vision was very happy with his progress and has stated that he has now no restrictions on his function Patient agrees that this is wonderful news in regards to his mental health and his ability to return to a normal life/work function Recommended to him and he agrees for return to part-time work, which is also part of his mental health management To continue seeing psychologist Patient still quite anxious Signs of panic attack today in regards to change in status Reassurance provided and active listening and counselling; patient felt better at end of session. [461]
59. On 5 July 2018, the Plaintiff saw Dr Wong who recorded: relayed msg to him re MH hosp team states that he was too sleep deprived to make last MH hosp appt and that he had called earlier than appt time to advise them of appt postponement to their approval of sees psychologist every 1-2 weeks past HX and meds updated [462]
60. Seroquel 100 mg 2 tablets a day (up to 4 tablets daily) was prescribed for anxiety and insomnia. [463]
61. On 16 July 2018, the Plaintiff saw Dr Wong who recorded Discussed patient keen for group psychological sessions States sleeping better with medication [464] Dr Wong noted the Plaintiff was actively seeing counselling and a letter was written regarding Mental Health Triage Referral. [465]
62. On 17 July 2018, the Plaintiff saw Dr Stewart who reported: I saw Richard again today regarding is longstanding wrist pain. I am happy to report that the pain has completely resolved and he has a more functional wrist with far improved grip strength. I am happy for Richard to return to work and continue to work on strengthening exercises with the therapists. I have not arranged to see Richard again but would be happy to do so if he has any further problems. [466]
63. On 17 July 2018, Dr Wong recorded that there were no restrictions on function. His supervisor was also happy with his progress and was considered such that he was able to return to normal life/work function.
64. On 6 August 2019, the Plaintiff presented to Royal North Shore Hospital after a fall from a ladder which saw him land on a metal pole. [467]
65. On 7 August 2018, the Plaintiff called Dr Wong requesting a new Workcover provider. [468] Dr Wong sought approval for a new psychologist Ms Alexandra Saunders based at the Emerald Medical Centre. [469] Dr Wong wrote a referral letter stating: Richard has had mental health issues for at least the past 10 years. From limited past records obtained, he has had a noted history of social anxiety disorder, generalised anxiety disorder and chronic depressive disorder. The prolonged recovery time after wrist surgery coupled by th(e) whole "insurance process" has greatly exacerbated his mental health issues. He is often quite debilitated and teary at times from his symptoms. He has seen previous psychologists in the past and is also known to the RNSH Mental Health Unit. I sought their advice re medication review and general review. He has been now discharged formally back to my care, partly unfortunately due to missed appointments and apparent miscommunication between parties. He had also been seeing a psychologist regularly but is requesting a different and ongoing management perspective for his care. From my interactions with him, I suspect he will need an empathetic approach to his consultations with you, but still gentle but firm direction to help him be proactive towards his achieving his management goals. [470] (Corrected)
66. On 9 August 2018, the Plaintiff saw Dr Wong who recorded: States had traumatic injury to his left sided torso 6 days ago whilst doing some home handy work State attended A&E and had a normal result rib x-ray test completed (discharge summary/report unavailable) Now recovering and now pain-free States missed plain job seek supplement with rehabilitation provider yesterday Requesting medical certificate as above …. On examination No tenderness on chest for palpitation No deformity Otherwise unremarkable [471]
67. On 10 August 2018, the Plaintiff saw Dr Wong again who recorded: Progress review Case conference with rehabilitation consultant in attendance Continues to remain pain free in hand Soon to see new psychologist In the process of interviewing and job placement research/vocation assessment [472]
68. On 15 August 2018, Pinnacle Rehab Pty Ltd wrote to Dr Wong advising that they had carried out a vocational assessment which identified that the Plaintiff was suitable to perform the functions of a cleaner with light to medium physical demands. [473]
69. On 15 August 2018, the Plaintiff saw Dr Wong who recorded: Workcover review looking for suitable job placement is concerned about any new job that might aggravate his wrist again Reassurance that his orthopaedic surgeon has deemed his is recovering as success and how can now do or pre-injury duties [474]
70. On 16 August 2018, Dr Wong opined that the vocational option of cleaner was suitable for 6 hours a day and 4 days a week. [475] On 20 August 2018, Pinnacle Rehab Pty Ltd forwarded to Dr Wong a staged return to work plan in respect of the Plaintiff which Dr Wong appears to have agreed to the same day. [476]
71. The Plaintiff also attended on the Cheerful Clinic on 29 August 2018 to see Alexandra Irving psychologist, who carried out a DASS-42 assessment. Ms Irving recorded that the Plaintiff reported that he was motivated to return to work and would like assistance with reducing his anxiety and depressive symptoms. The Plaintiff also advised that he enjoyed a routine staying busy as this was when he experiences the least amount of anxiety. Ms Irving opined that the Plaintiff had depression in the severe range, anxiety and stress within the extremely severe range. The interventions provided for cognitive behaviour therapy, mindfulness techniques and psychotherapy. [477]
72. On 4 September 2018, Ms Gillian Fox (Psychologist), wrote to Dr Wong noting that the Plaintiff had been referred to the 16 week Managing Your Mood psychological skills therapy group at the Lifeline Gordon office but withdrew from the group. The letter noted that the Plaintiff had been offered individual counselling but had not arranged an appointment. Further, the Plaintiff had been screened for the REACH depression/bipolar group. [478]
73. On 5 September 2018, the Plaintiff saw Dr Wong who recorded: Work cover review States still looking for a new job; has been in various applications for Has attended new psychologist once; states has been doing well; next appointment this weekend Mood stable; states has been compliant with medications [479]
74. Actions were noted to include advice to continue WorkCover until a few weeks into new job to make sure he was fully settled. The Plaintiff was also advised to engage with rehabilitation coordinators regarding vocational options. [480]
75. Pinnacle Rehab Pty Ltd sent a questionnaire to the Plaintiff's psychologist (Ms Irving) on 3 September 2018 inter alia seeking agreement for the Plaintiff to address work in a cleaning position. On 8 September 2018, the Plaintiff attended the Cheerful Clinic for psychological treatment. The same day the psychologist agreed to Pinnacle's Rehab Pty Ltd's proposal. [481]
76. On 11 September 2018, the Plaintiff attended on Royal North Shore Emergency [482] after being taken by ambulance. [483] The progress note recorded that the Plaintiff: ED Psych Reg Review Richard is unemployed 53yo man who lives with his partner Loreta in Lane Cove Background of depression, anxiety and borderline personality disorder HPC Richard was feeling anxious recently due to having a job interview today Another stressor is hand injury in June 2017 that limits his ability to work Contacted MHTAL and reported suicidal ideation, the person tried to get his details but he hung up Police contacted and brought into hospital for assessment Patient seen in ED Expressed a lot of frustration about being brought to ED Admitted to saying on phone that he was "feeling suicidal" but insisted that "I would never act on it" Denies any recent self-harm acts Minimising alcohol use but said that he had "a few beers" yesterday but could not remember the time Stated that his mood appetite and sleep are normal Current medication Fluvoxamine 200 mg daily PRN quetiapine 100mg nocic Contacted partner Loreta [redacted] She fells Richard has been depressed for last 12-18 months since hand injury Recently a bit more withdrawn but otherwise changes in his behaviour No self harm or suicide attempts for many years Does not suspect that he is planning anything Knows that he is feeling stressed due to job interview Raises no significant safety concerns about Richard going home today But did feel that his drinking was a problem he drinks 1 bottle of vodka every day Discussed safety planning she will contact LNS CMHT if there are any issues or concerns Will come to hospital to take him home MSE Appearance Elderly man, looks of stated age, dressed in hospital gown, reasonable self care Behaviour: frustrated and impatient due to having to wait in hospital Speech: normal Mood: Angry at times Affect: Appropriate and reactive Thought process: No formal thought disorder Thought content: No delusions Insight and judgement: Reasonable Suicidal Ideation: No current intent or plan Impression: Chronic intermittent self harm thoughts in response to stress, background of borderline personality disorder and alcohol use disorder Plan (discussed with on call psychiatrist Prof Gin Me N) Lift schedule Not for mental health admission Partner will come to take him home Given contact numbers for D& A and LNS CMHT Follow up phone call with LNS ACT- Richard indicated that he was not interested in speaking to ACT, but was agreeable for them to contact his partner instead [484]
77. On 25 September 2018, the Plaintiff saw Dr Wong who recorded: Presents in acute distress Very teary and emotional Noted has job interview tomorrow and upset that his vocational liaison will be unavailable Patient cursing and lamenting that liaison is uncontactable Poor emotional reserve clinically Denies any self-harm or suicidal ideations Has run out of his Valium and Seroquel
78. Valium 5 mg 1 tablet twice a day and Seroquel 100 mg 1.5 tablets a day were
79. prescribed. [485]
80. On 27 September 2018, the Plaintiff attended Royal North Shore Hospital presenting with sudden onset epigastric pain that progressed overnight with vomiting and diarrhoea post 8 standard drinks over the day. A CT scan reported on by Dr John Ryan reported: Acute oedematous pancreatitis with no evidence of gland necrosis. Acute peripancretic fluid collections internal gas (to suggest infection). No vascular complications. Diffuse hepatic steatosis [486]
81. The Plaintiff was noted to have been admitted to intensive care for further management but self-discharged against medical advice on 28 September 2018. He was advised at the time of discharge that he had life threatening pancreatitis, cardiac arrhythmia and anaphylaxis. [487]
82. On 4 October 2018, the Plaintiff saw Dr Wong who recorded as diagnosis of: Alcohol overuse Hypercholesterolaemia Pancreatitis, alcoholic [488]
83. Actions were noted to include abstinence of alcohol, CT of abdomen and pelvis and chest X-ray. The notes further recorded: Flare up of separate medical illness Unable to attend rehabilitation interview today Was unable to attend rehabilitation interview today Was unable to do job interview recently due to acute anxiety and stress Psychologist currently on short term leave [489]
84. Dr Mahaliyana also prepared a Chronic Disease GP Management Plan that included: Alcohol abuse Depression Hypercholesterolaemia Alcoholic pancreatitis Social Anxiety Disorder Generalised Anxiety Disorder [490]
85. On 8 October 2018, the Plaintiff saw Dr Wong who recorded: feeling better less abdominal pains Reason for visit: Referral to gastroenterology [491]
86. On 19 October 2018, the Plaintiff saw Dr Wong who prescribed Valium 5mg 1 tablet twice a day and Seroquel 100mg 1.5 tablets a day. [492]
87. On 23 October 2018, the Plaintiff saw Dr Wong who recorded that the Plaintiff advised that he had secured a new job which he was very happy about but anxious in general though. [493]
88. On 27 October 2018, Dr Terry Lo reported on a CT scan of the abdomen features suggestive of recent or previous pancreatitis with minor increased stranding and slightly increased density seen in the peripancreatic fatty tissue. [494]
89. On 24 October 2018, the Plaintiff was seen at Royal North Shore Hospital Outpatient Clinic by Dr Sabiha Deol (Basic Trainee Registrar in Gastroenterology). The Plaintiff was noted to have denied any past medical history which Dr Deol noted was incorrect and the Plaintiff thereafter advised that he has had an alcohol detox earlier that year and had a few detox admissions over the years. Dr Deol advised the importance of giving up alcohol which the Plaintiff was agreeable to. An abdominal ultrasound of the gallbladder and repeat CT of the abdo/pelvis was sought however the Plaintiff was noted to be in a hurry and Dr Wong was requested to follow up with the investigations. [495]
90. On 3 November 2018, the Plaintiff saw Dr Wong who recorded that he started the job 7 days ago and it was more labour intensive than he was led to believe however was keen to persevere and wants to give time for him to settle in. [496]
91. On 14 November 2018, Carley Rowland (Rehabilitation Consultant from Pinnacle Rehab Pty Ltd) wrote to Dr Wong. She advised that the Plaintiff was in the third week of work and advised that things are more relaxed and the manager has observed what he is best able to do and has adjusted his duties accordingly. She noted that the Plaintiff would continue treatment with Alexandra Irving (Psychologist) but Pinnacle Rehab Pty Ltd were closing their file.
92. On 19 November 2018, the Plaintiff saw Dr Wong who noted that he was coping at work, his medication was stable but he was often still getting very stressed. A diagnosis of depression was made.
93. On 24 November 2018, the Plaintiff attended the Cheerful Clinic for psychology treatment.
94. On 19 November 2018, the Plaintiff saw Dr Wong who reported:
95. …
96. Coping okay at work Medication stable Often still getting very stressed still Diagnosis Depression [497]
97. A prescription was given of Voxam 100 mg 2 tablets daily with 5 repeats, Valium 5 mg twice a day and Seroquel 100 mg 1.5 tablets a day. [498]
98. The Plaintiff attended the Cheerful Clinic on 1 December 2018 for reassessment. Ms Irving recorded that the DASS-42 assessment found that the depression and stress are now in the normal range and anxiety was in the severe range. [499] The evidence was the Plaintiff's psychological treatment continued on 15 December 2018 and ended on 22 December 2018. [500]
99. On 3 January 2019, the Plaintiff saw Dr Wong who reported: Feeling stressed at work Needling recurrent left wrist pain is due to excessive repetitive duties Getting some panic attacks related to workplace Listening and counselling provided Strongly encourage him to initiate open discussion with his employer in regards to his concerns about his wrists Noted employer was aware of this previous wrist issues prior to agreed employment … Plan Recommended to patient to write letter/emailed to employer her regarding his concerns Guidance given resilience counselling [501]
100. On 5 February 2019, Dr Wong recorded: quit job 3 weeks ag struggling with workload and also getting repeated left wrist soreness struggling mentally; teary today Denies any self-harm or source ideations Feels mentally unable to look for a new job application Encouraged and advised him to restart psychologist sessions [502]
101. A prescription was given for Seroquel 100mg 1.5 tablets a day and Valium 5mg 1 tablet and day. [503]
102. On 13 February 2019, the Plaintiff saw Dr Wong recorded: feeling better Mood started to spontaneously improve on the weekend Coinciding with not working and keeping active with other household tasks Discussed & agreed try and find employment, and to ideally less involve wrist involvement States has been apply for jobs Has not been seeing psychologist; strongly encouraged and greed to restart visits [504]
103. On 12 April 2019, the Plaintiff saw Dr Wong who recorded: looks well and calm; more so than he has been in a long time states he is feeling well still unemployed; states that he needs to upskill but having difficulties choice deciding Recommended and agreed not seek services of career advisor minimal Valium use; none in the past week discussed and agreed for rpt supply prn, and to monitor usage of due now for routine metabolic screen not currently seeing psychologist or mental health clinic. [505] (Corrrected)
104. A prescription was given for Voxam 100 mg 2 tablets a day 5 repeats, Valium 5mg 1 tablet a day and Seroquel 100mg 1.5 tablets a day. [506]
105. On 5 August 2019, the Plaintiff saw Dr Wong who recorded: 5 month history of acute on chronic left wrist pain same wrist as previous insurance claim Has ulnar aspect paraesthesia on hand which is long-term since original injury Currently not working On examination Pain discomfort on all wrist movements Finkelstein lest positive …. Reason for visit: Left De Quervain's tenosynovitis (provisional) Acute Left Wrist pain Repeat prescription [507]
106. Dr Wong ordered a left wrist ultrasound. [508] Seroquel 100 mg 1.5 tablets a day and Valium 5 mg 1 tablet a day and Mobic 15 mg ½ to 1 tablet a day with 3 repeats were prescribed. [509]
107. On 7 August 2019 an ultrasound of the left wrist was reported by Dr Ursula Ridley who recorded: There is no ultrasound evidence of De Quervain's tenosynovitis. There is a suggestion of tendinosis of the ECQ tendon, An MRI could be performed to further evaluate this abnormality if clinically indicated. [510]
108. On 9 August 2019 the Plaintiff saw Dr Wong who diagnosed mild chronic left wrist pain. Results of an ultrasound were given to the Plaintiff. [511] Mobic ½ to 1 tablet a day with 3 repeats was prescribed. [512]
109. On 15 August 2019 the Plaintiff saw Dr Wong who recorded: ongoing L wrist pains states symptoms greatly exacerbated by independent medical assessment of his wrist from his original work place wrist injury in 2017 Patient quite upset and distraught from examination where he states he was ignored when he requested to cease examination due to pains, particularly because of recent events … Plan: Start anti-inflammatory as planned; reassurance potential side effects that he had been internet searching about OT hand rehabilitation as planned [513]
110. On 28 August 2019, the Plaintiff saw Dr Wong who recorded the Plaintiff's mood as stable. Mobic was ceased and Celebrex 200 mg 1 tablet 2 times a day for 4 days reducing to 1 thereafter was prescribed. [514]
111. On 22 October 2019, the Plaintiff saw Dr Wong who recorded: has been well mood stable; clinically looks happy and well not needing any analgesia for his wrist reminded that he is overdue HC, esp metabolic risk of his medications meds updated [515]
112. Voxam 100 mg 2 tablets a day with 5 repeats, Valium, 5mg 1 tablet a day and Seroquel 100 mg 1.5 tablets a day were prescribed. [516]
113. On 18 December 2019, the Plaintiff saw Dr Wong who recorded that the Plaintiff's mood was stable, he continued alcohol abstinence and was smoking one packet a day. The Plaintiff declined cessation advice and support. He was reminded to do fasting bloods and annual health check. [517] Valium, 5mg 1 tablet a day and Seroquel 100 mg 1.5 tablets a day were prescribed. [518]
114. On 14 February 2020, Dr Wong saw the Plaintiff for a health check following a blood collection two days earlier and a physical examination. He recorded the following: for HC past HX and meds updated Issues -fatty liver, weight gain, minimal physical activity on Seroquel -smoking 10 cigs/day' pre-contemplative stage -acute on chronic L ankle pains; previous surgical fracture repair -subclinical hypothyroidism Examination … Diagnosis: Vitamin D deficiency Hypercholesterolaemia Fatty Liver (Provisional) Moderate Left ankle pain Subclinical hypothyroidism (Provisional) … [519]
115. Amongst the actions taken was a request for x-ray respect of the left ankle. A prescription also was printed for Valium 5mg 1 tablet a day as required. [520]
116. On 14 February 2020, an x-ray of the left ankle was reported by Dr Sarah Choi as follows: Previous internal fixation of the medial malleolus and distal left fibula is noted. No hardware complication. Severe osteoarthritis is noted involving the left ankle joint where there is reduced joint space, subchondral sclerosis and cyst formation. No significant joint effusion is evident on xray, There is diffuse soft tissue swelling surrounding the left ankle joint. [521]
117. On 26 February 2020, the Plaintiff saw Dr Wong again who diagnosed severe chronic osteoarthritis of the left ankle. The Plaintiff was referred for physiotherapy to ProHealth physio. That referral made reference to "rehabilitation management of [the Plaintiff's] chronic lower back pains and chronic left ankle pains secondary to severe osteoarthritis." [522] The physiotherapy appears to have commenced on the same day. [523] However, on 27 February 2020, Dr Wong recorded that the Plaintiff found the physiotherapy ineffective and requested chiropractic referral which was actioned. [524] Consequently, Dr Wong referred the Plaintiff to Health Space Clinic again for "rehabilitation management of his chronic lower back pains and chronic left ankle pains secondary to severe osteoarthritis." [525] Voxam 100 mg 2 tablets a day with 5 repeats and Panadeine Forte 500 mg, 30 mg tablet 1-2 tables each 6 hours maximum of 8 a day were prescribed. [526]
118. On 24 March 2020, Dr Wong wrote a letter to the Orthopaedic clinic of Royal North Shore Hospital for "an opinion and management regarding his severe left ankle osteoarthritis, which is unresponsive to physiotherapy treatment." [527] Valium, 5mg 1 tablet a day and Voxam 100 mg 3 tablets a day were prescribed. [528]
119. On 30 March 2020, Dr Wong wrote a letter for specialist orthopaedic referral to Dr Wines at Royal North Shore Hospital for "an opinion and management regarding his severe left ankle osteoarthritis, which is unresponsive to physiotherapy treatment". [529]
120. On 6 April 2020, Dr Wong completed a medical assessment for the public housing. In the form, Dr Wong referred to the Plaintiff's medical condition as left ankle osteoarthritis and depression (chronic/severe). He noted that the Plaintiff required ground level housing or at most 1 to 2 stories. The assessment noted that the Plaintiff was able to live independently. Panadeine forte 500mg, 30 mg tablets 1 to 2 tablets every six hours to a maximum of 8 tablets a day were prescribed. [530]
121. On 17 April 2020, Dr Wong recorded: 48 hours of intermittent central CP; none currently 2hr period last night central; no radiations; sharp intensity states was sweating at the time no exacerbating/relieving factors improved after self-dose 20 mg Valium stat feels well now states did not want to go to hospital re his symptoms fatalistic view and would 'rather die than go to hospital' no self-harm or suicide ideations though [531]
122. Dr Wong ordered a blood test and strongly advised the Plaintiff to call the ambulance should he get any symptom recurrences. Although the Plaintiff initially left the proactive against medical advice, he later advised he would return the following day for a blood test. [532]
123. Following a blood test earlier that day, Dr Wong telephoned the Plaintiff on 21 April 2020 to advise that results of a blood test showed a troponin leak. Dr Wong expressed concerns as to a possible acute myocardial infarction at any moment and encouraged the Plaintiff to go to hospital. The Plaintiff was noted to have understood the concerns but declined. He was encouraged to pass on Dr Wong's concerns to his house partner and to attend hospital especially if he develops any further new chest pains or otherwise to call the after-hours doctor. [533]
124. On 22 April 2020, Dr Wong recorded that he was advised by the Plaintiff's "partner" that she will take him to Royal North Shore Accident and Emergency that morning. Subsequently, the notes record an update that the Plaintiff was "likely having/had an inferior AMI" and was being transferred to the catheter lab. [534] The referral letter to the Emergency Department stated: : Thank you for seeing Richard Gillam, aged 54 yo, for an opinion and management regarding a significant troponin level (16760 ng/L) and CPR 204mg/L. Richard presented 6 days ago with a history with a 48hr history of central chest pains with atypical features, but with no chest pain for 12 hrs upon this actual presentation. There was no history of localised chest trauma, exacerbating factors, or pain radiation. He described the pain resolving with 20mg Valium taken. He has a long history of treatment-resistant anxiety/ depression. I advised him at the time to go to hospital for assessment which he declined. ECG showed SR with no acute changes reported. Blood testing was only collected yesterday after leaving my practice without discharge, after patient represented, now with the noted troponin rise. He declined to attend hospital last night when I strongly advised him over the phone to attend. He continues to deny any further chest pains. I spoke to his partner this morning, and she has arranged to bring him in. He has not cardiac history; Please see attached results, ECG and vitals from six days ago: BP (sitting): 140/92 Pulse: 113 Temperature 37.0 BSL: 10.5 mmol/l Non-fasting Thank you for assessment of a myocarditis/ischaemic event; He has no noted typical symptoms of COVID-19… [535]
125. On 23 April 2020, the Plaintiff was admitted to Royal North Shore. However, the Plaintiff discharged himself against medical advice. [536]
126. On 23 April 2020, Dr Wong recorded: p/c received from RNSH patient discharged against medical advice unsuccessful angioplasty confirmed recent AMI Diagnosis Acute myocardial infarction… [537]
127. On 28 April 2020, the Plaintiff again saw Dr Wong who prepared a referral letter to Dr Edward Bain at the Macquarie University Hospital Heart Clinic referring to the Plaintiff's severe anxiety/depression and requesting an opinion and management regarding his first event acute myocardial infarction. [538] Various related medications were prescribed. [539]
128. On 13 May 2020, the Orthopaedic Foot/Ankle clinic advised that it was unable to accept non-urgent referrals due to the evolving coronavirus situation. [540]
129. Dr Bain reported on 19 May 2020. He explained to the Plaintiff the rationale for treatment and the need to quit smoking if possible and to see Dr Wong to monitor his risk factors. Medication was reviewed and he was advised to consult again in 12 months unless there are intervening problems. [541]
130. On 25 May 2020, Dr Wong recorded: saw cardio last week- states was told he was stable, and review in one year (report pending) now back on his medications epigastric/LUQ pains for the past week; consistent with pancreatitis flare states presented to A&E 5/7 ago with same presentation (report pending) managed with acute analgesia blood taken then - await results no fevers clinically tender to palpation; looks clinically stable mood stable Diagnosis: Mild Pancreatitis, acute [542]
131. Valium 5mg 1 to 2 tablets a day twice a day and Endone 5mg 1-2 tablets twice a day were prescribed. [543]
132. On 1 June 2020, Dr Wong recorded: phone call consult and then recalled for face consult epigastric pains adamant that is different to his recent AMI symptoms pains radiating to RHS abdomen tender over RUQ no vomiting or nausea; BO normal self-dosed 6 x Somac 40mg tab today; advised him that his max dose is as prescribed 40 mg daily! … Diagnosis: Acute Biliary Colic (Provisional) [544]
133. Endone 5mg 1 to 2 tablets twice a day was prescribed. [545]

Dr Ronald Thomson

1. The Plaintiff saw Dr Ronald Thomson (Musculoskeletal Medical Consultant) on 17 October 2018 at the request of his solicitors. Dr Ronald Thomson reported on the same day. [546] He noted that the left wrist was somewhat expanded and in terms of the range of motion, there was a 10º loss of extension. Similarly for flexion and ulnar as well as radial deviation were marginally reduced. Pronation/supination revealed a loss of 10º supination and full pronation being available. He noted a well healed surgical scar at the distal part of the ulnar aspect of the left forearm and some tenderness to palpation at the ulnar side of the left wrist. Some degree of persisting stiffness at the left wrist with some intermittent radial clicking was noted along with a considerable reduction in strength and power in the left hand. The left hand grip was found to be profoundly weakened. Dr Thomson noted that the Plaintiff was currently unfit for his pre-injury duties as a labourer or any alternative form of lighter duties requiring the undue requirements of force, strength, stamina, impact or vibration activities or repetitive movements of the part. He opined that the Plaintiff would only generally be fit for lighter alternative activities where those requirements are definitely secondary or irrelevant.

Dr James Bodel

1. The Plaintiff was next seen by Dr James Bodel (Orthopaedic Surgeon) at the request of his solicitors on 6 March 2019 and reported on the same day. [547] In the examination, he noted a restricted range of wrist movement in both wrists. He recorded that the grip strength is slightly weak on both sides. He recorded healed scarring over the volar surface of the left wrist and also over the ulnar styloid and a Grade IV sensory loss in the median nerve distribution in the left hand and this is evident by the diminished light touch sensibility in the median nerve distribution. Dr Bodel recorded that the Plaintiff complained of weakness and pain in the region of the left wrist mainly along the ulnar styloid up towards the elbow. Any attempt to push, pull or lift or push up on the extended wrist caused pain and the Plaintiff also complained of numbness in the median nerve distribution in the region of the left hand. He had diminished light touch sensibility in the median nerve distribution but not the ulnar nerve. [548] The diagnosis arrived at was that of a comminuted fracture of the distal left radius and ulna requiring open reduction and internal fixation. Dr Bodel found the Plaintiff was not fit for unrestricted heavy labouring orientated work and he never will be because of the discomfort in the wrist. He recommended retraining him into permanent modified duties and opined he should be able to tolerate moderate manual tasks up to about a 12-15kg lifting limit. [549]
2. Ina supplementary report also dated 6 March 2019, Dr Bodel found the Plaintiff had an 11% whole person impairment in accordance with WorkCover guidelines. [550]

Greg Anning

1. The Plaintiff was examined by Greg Anning (Consultant Psychologist) on 11 December 2018 at the request of his solicitors. [551] A report was tendered dated 14 December 2018. [552]
2. Mr Anning obtained a history in which the Plaintiff denied any chronic health problems and stated that he was in good health before the accident. He acknowledged suffering from anxiety and depression for some time stating that he saw a psychiatrist seven or eight years ago as there was a history of bipolar in his family. The Plaintiff is recorded as having told Mr Anning that he took Seroquel for a short period of time. Since the accident, the Plaintiff is recorded as having advised that he recommenced taking Seroquel and had been prescribed Valium and an antidepressant. The Plaintiff also provided a history of not drinking alcohol much prior to the accident but since the accident had been drinking quite a lot. Similarly, he described increasing his smoking form 8 to 40 cigarettes per day. The Plaintiff is also recorded as denying any history of drug use.
3. In terms of psychological symptoms, Mr Anning recorded that the Plaintiff slept well with medication, had no appetite and does not eat well, had suicidal ideation and had one suicide attempt. Mr Anning noted that the Plaintiff described his mood as unstable and most of the time he feels depressed and at other times he thinks everything is okay. He reported increased irritability and anger, lost interest in everything, lacking motivation and having poor memory and concentration. Mr Anning recorded that the Plaintiff reported that prior to the injury he was quite social and use to go out a lot. He kept in touch with his school friends but now does not bother to answer the phone. The Plaintiff is said to have described how he is now not going out adding that all he does is wash his car.
4. Mr Anning opined that the reported symptomology was consistent with significant depressive experience. Psychological testing was carried out on the Personality Assessment Inventory (PAI). Mr Anning stated that the testing was consistent with a diagnosis of Major Depressive Disorder. The PAI clinical profile was associated with marked distress and severe impairment in functioning. Further validity scales on the test indicated that the Plaintiff did not exaggerate his symptomology and did not attempt to present an unrealistic or inaccurate impression that was either more negative or more positive than the clinical picture would warrant.
5. Mr Anning reported the Plaintiff's clinical presentation was consistent with diagnosis of major depressive disorder. Whilst noting the pre-existing depressive condition, he stated that there is every reason to believe that his functioning was intact pre-injury. He noted that the Plaintiff's self-concept varies from states of harsh self-criticism and self-doubts to periods of relative confidence and intact self-esteem. This fluctuation is likely to vary as a function of his current circumstances. Pre-injury, he described the circumstances particularly in relation to his employment as positive. Mr Anning stated that the depressive condition is secondary to the pain and disability in particular his inability to undertake employment tasks, which makes him vulnerable to not being able to work.

Dr Leonard Lee

1. The Plaintiff saw Dr Leonard Lee on 16 July 2019 at the request of the Defendant's solicitors and he reported the same day. [553]
2. Dr Lee opined that the Plaintiff exhibited considerable evidence of abnormal illness behaviour that made delineation of psychiatric injuries problematic. [554] He noted that the Plaintiff had pre-existing disorders but stated that the Plaintiff had become defensive on exploration. In his view, there was no clear indication of psychiatric incapacity for work due to the incident given the extent of abnormal illness behaviour.
3. On psychometric testing, Dr Lee indicated that the Plaintiff's score for Structured Inventory of Malingered Symptomatology was well above the recommended threshold for the identification of likely feigning. On the Medical Symptom Validity Test, he stated the Plaintiff's effort was poor and the results are of doubtful validity. On the Modified Somatic Perception Questionnaire, he noted that the Plaintiff's score suggested that he is either malingering pain or may have a somatoform disorder.
4. After being provided with a supplementary file which it appears to be comprises of clinical notes from the Emerald Medical Centre, Dr Lee wrote a further report on 30 December 2019. [555]
5. He reported that pre-accident elevations in the liver indicated alcohol abuse. It was noted that on 21 February 2011, he had been taking antidepressant Zoloft for years although his psychological problems appear to be stable until 12 December 2012 when he increased dosage of Zoloft. It was noted that he is said to have smoked pot for 5 years which he considered is associated with loss of motivation. By 1 June 2013, the Plaintiff was depressed and was recorded as drinking lots of alcohol and was suspected of alcohol dependency. On 8 July 2013, the Plaintiff was depressed and in tears worsened by his mother passing away. On 10 December 2013, he had been asked to start working again and it was noted that he was not coping due to stress.
6. Noting the history recorded in the clinical notes to 2 July 2014, Dr Lee opined that they suggested that Plaintiff was dependent on alcohol and/or the benzodiazepine anxiolytic Valium.
7. Dr Lee noted that on 16 January 2018, Dr Wong found it difficult to assess his actual amount of alcohol consumption. Noting the same clinical records to 16 January 2018, Dr Lee observed that there is a steadily increasing liver abnormality over time, most likely associated with alcohol abuse/dependence.
8. Noting the records of 17 July 2018 where Dr Wong recorded that there were no restrictions on function as well as Dr Stewart's happiness with the Plaintiff's progress, Dr Lee considered such that he was able to return to normal life/work function.
9. Overall, following examination of the records, Dr Lee opined that they revealed significant pre-injury problems with alcohol. Furthermore, Dr Lee opined that they indicated that the Plaintiff psychologically recovered from his injury and the current symptoms were due to prior unrelated psychiatric problems particularly anxiety, depression and alcohol dependence. [556]

Joint Report

1. A joint report was prepared by Mr Anning and Dr Lee following a conclave conducted on 18 January 2021. [557]
2. Mr Anning acknowledged that when he saw the Plaintiff he did not have the Plaintiff's prior history. Having been provided with Dr Lee's report of 30 December 2019, he opined that the Plaintiff definitely had some personality issues but could not determine if this constituted a personality disorder. He noted that the Plaintiff advised that the structure of his work was important to his well-being and considered that not being able to work was a factor in his depression. He considered that major depressive disorder was secondary to the Plaintiff's perception of pain and being restricted in the employment market.
3. Dr Lee opined that the subsequent documentation obtained revealed that the Plaintiff considered himself as having underlying Borderline Personality Disorder (BPD) and that he had minimised the extent of his substance use. Therefore, he did not consider the accident caused any specific psychiatric injuries. Whilst he considered the possibility of aggravation of a pre-existing disorder he regarded the issues as complicated because of uncooperative assessment behaviour, the extent of pre-existing condition and substance use problems.
4. Mr Anning stated that validity testing on the Personality Assessment Inventory (PAI) suggested no indication that the Plaintiff exaggerated his symptoms. Citing two studies, Dr Lee indicated that the PAI has been reported as less sensitive to detection of invalidity than other tests such as Minnesota Multiphasic Personality Inventory. Further, he opined that absence of proof of response bias was not proof of absence. In any event, the PAI revealed problematic personality traits with emotional lability, rapid and extreme mood swings and episodes of poorly controlled anger, consistent with borderline disorder traits rather than a clear cut major depressive disorder and depression was frequent in those with borderline dysfunction. He noted that the history provided to Mr Anning was incomplete and inaccurate as he denied any history of drug use, yet his records revealed he had been incarcerated because of drug use and assault considered secondary to this.
5. Mr Anning considered that the Plaintiff's previous history of psychiatric illness made him vulnerable to aggravation caused by the workplace injury and considered there to be an aggravation of a pre-existing psychological condition. Whilst he was unable to provide an accurate psychological diagnosis when assessed he found the Plaintiff presented with a major depressive disorder which he would view as an aggravation of an underlying psychiatric condition. In terms of its continuation, it was continuing at the time for the consultation but can't comment since but would expect given the difficulty the Plaintiff was having with employment, that he would continue to have bouts of major depressive disorder.
6. Dr Lee opined that the Plaintiff may have suffered an aggravation of pre-existing condition. However in 2019 there was evidence of marked exaggeration/invalid symptom reporting making it difficult to even address the issue of potential aggravation. He noted that a review of the documentation revealed that by July 2018 there was considered to be no restrictions or dysfunction. In September 2018 he was described as doing well. Subsequently, the Plaintiff was distressed by social anxiety preventing him from attending a job assessment and it was likely that social anxiety was inherent. He noted that the Plaintiff was diagnosed with pancreatitis considered secondary to alcohol abuse and by October 2018 he was recorded as being happy at his new job although subsequently he complained about stress and in January 2019 he complained about wrist pain. He noted that by February 2019 he said that his mood had improved after he stopped work and this was inconsistent with his informing Mr Anning that his mood deteriorates when he was not working. In September 2018 he noted that the Plaintiff was in alcohol withdrawal.
7. Dr Lee was of the view that the identified injury did not remain an aggravation or that its effects were continuing. Whilst the injury may have aggravated his emotional problems he noted that by September 2018 the Plaintiff was doing well.
8. Dr Lee noted that BPD which the Plaintiff considered his own diagnosis is characterised by persistent instability of mood and behaviour, exaggerated symptom reporting and impulsive behaviour. He stated that they usually distort conceal or lie about aspects of their lives both present and past.
9. Mr Anning stated that the history demonstrated that the Plaintiff was in a fragile emotional state that contributed to by his perception of pain resulting from the subject accident and as a result his ability to perform work duties. He stated that when he assessed the Plaintiff he struggled to maintain work due to pain and it was conceivable that stopping work would lead to an improvement in mood.
10. In terms of the present, Dr Lee thought it unlikely that the Plaintiff currently suffered from symptoms of accident related injury due to the extent of the pre-accident problems. He considered the prognosis in respect of accident -related injuries was good but poor in relation to substance abuse and BPD. Mr Anning was unable to determine whether the Plaintiff currently suffers from symptoms that are accident related in view of the fact that he had not seen him for two years. However at the time he was last seen he considered the prognosis for significant recovery from his psychological condition was poor. In particular, it would be unlikely that he would be unable to maintain employment and given his restricted capabilities in employment as a labourer.
11. In respect of capacity to engage in pre-injury employment, Mr Anning considered that at the time of assessment the Plaintiff was experiencing pain when undertaking a full range of duties. He viewed the depressive condition as secondary to his pain and resultant employment insecurity to obtain employment. Dr Lee stated that the Plaintiff was likely to have disabilities unrelated to the accident from which his claim arises and they are likely to have affected his capacity to engage in pre-injury employment. He noted that people with pre-existing psychological problems frequently have an increased tendency towards somatoform (physical) complaints after accident. He stated that the choice of symptoms serves to hide the real problems and the degree of conscious intentionality behind the physical symptoms is still a matter of debate.
12. So far as far as treatment was concerned, Mr Anning stated that it was reasonable and necessary. Dr Lee considered it difficult to form a similar view. He did however note ongoing disability associated with substance abuse in the context of personality dysfunction and to that extent it was reasonable and necessary.

Submissions

1. The Plaintiff submitted that he suffered a primary injury in the nature of a comminuted, intra- articular fracture of the distal radius of the left wrist and there was also a further large styloid fracture with an unstable distal radioulnar joint. Attention was drawn to the treatment he received as outlined above and in particular to the three separate surgeries. It was submitted that the notes and reports indicated significant pain, discomfort and impairment from the date of the accident up and until at the earliest 17 July 2018 when the Plaintiff recovered from the third surgery. Prior to that time, the Plaintiff had extremely limited use of his left wrist, which had obvious consequences for his work and capacity for household tasks. Attention was drawn to the Plaintiff's evidence since the accident as to him continuing to experience pain in his wrist that exacerbated by physical work. Moreover, there was evidence of deformity and scarring to his wrist.
2. Attention was also drawn to the evidence of Drs Thomson and Bodel which was uncontested as well as Ms Wendy Bevan (discussed below) indicting the extent of the Plaintiff's physical limitations arising from his left wrist injury.
3. The Plaintiff submitted that the notation by Dr Lee that on 13 February 2019, that the Plaintiff's mood had improved since he had stopped work and by 12 April 2019 he was feeling, well falls away in the context of the Plaintiff's ongoing complaints and symptoms and his medication since the subject accident. It was argued that the Court would have primary regard to the Plaintiff's evidence as well as the evidence of Ms Moretti such that the Court would find the Plaintiff had pre-existing psychological illness made worse by the circumstances of his injury.
4. The Plaintiff further drew attention to the fact that following the accident he had treatment at Everyday People Psychology and the Cheerful Clinic and that the acute anxiety suffered was in the context of dealing with the workers compensation insurance company being the result of the accident. It was submitted that the Plaintiff's medication increased and that in November 2016 the Plaintiff had been off medication for 4-5 months and wanted to wean off Mirtazapine. Furthermore, since the accident, the Plaintiff came to be hospitalised at Royal North Shore Hospital for a psychiatric episode. The Plaintiff's condition was said to have clearly worsened evidenced from counselling and medication. Further support for this was said to be evidenced from the evidence of the Plaintiff and Ms Moretti and the DASS-42 Assessment carried out by Ms Alexandra Irving.
5. So far as the medico legal evidence was concerned, it was submitted that the opinion of Mr Anning should be preferred to the opinion of Dr Lee who despite accepting that there was an aggravation of pre-existing psychological illness found that it had ceased. It was argued that Dr Lee simply opined that the clinical records indicated that the Plaintiff had recovered where there was no reasoning or reasoning process in support of that opinion. It was submitted that Dr Lee's report simply mentions an entry in the clinical records that the Plaintiff was "feeling well" in February 2019 but failed entirely to deal with the Plaintiff's ongoing complaints and symptoms and the very much increased medication and symptoms since the subject accident.
6. The Defendant submitted that the Plaintiff's evidence was such that he could not be accepted. It argued that the full extent of his pre-incident psychological problems only emerged in cross examination and in the medical evidence tendered. The Defendant further drew attention to Dr Stewart's reports and the Plaintiff's denials as to matters recorded in the reports of 5 June and 17 July 2018. [558]
7. The Defendant accepted that the Plaintiff had suffered a nasty injury requiring three surgeries to his left wrist and that it was submitted that he has made a reasonable recovery and observed that it was Plaintiff's left, non-dominant hand/wrist. [559]

Consideration

1. Since 2007, the Plaintiff was being seen at the Emerald Medical Centre and was being prescribed a variety of medication in respect of anxiety and depression in increasing doses. A care plan came to be developed by Dr Arian on 21 February 2014 in respect of the Plaintiff's anxiety, depression, alcohol dependency and panic attack. The Plaintiff also came to see Dr Paula Cameron following referral on 21 February 2014. On 25 February 2014, the Plaintiff was also referred to the Herbert Street Clinic for alcohol dependency. The Plaintiff accepted that he had an overwhelming problem in March 2014 and would avoid people socially, have panic attacks, difficulty concentrating, difficulty sleeping and mood changes. The Plaintiff acknowledged having counselling before the accident and seeing a psychologist Mr Ebert. On 25 September 2014, the Plaintiff was noted to have suicidal ideation with no plans. In November 2015, a referral was made for him to see a Dr William and a Dr Harthorn for management of depression and anxiety. It is not apparent that the Plaintiff followed through on either of these referrals.
2. Whilst the Plaintiff had requested he be taken off Mirtazapine on 22 November 2016, the context in which that occurred was in him describing it as not effective and seeking Zoloft instead. Mirtazapine was still prescribed on that occasion and a care plan prepared noting that the Plaintiff had recommenced alcohol use. Whilst I note the reference to the Plaintiff stopping medications in Dr Mahaliyana's clinical note of 22 November 2016, it is not apparent that this was a reference Mirtazapine. The clinical note makes reference to the blood test results and in Dr Mahaliyana's letter to Dr Jayalath on 9 December 2016, there is specific reference to not taking medication for hypercholesterolemia. What was clear was that the need for medication to deal with anxiety and depression remained as the Plaintiff was recorded as seeking replacement with Zoloft as Mirtazapine was not seen as effective. Prior to that on 13 July 2016, the Plaintiff is recorded as reporting taking Inderal when he is feeling anxious. Furthermore, Dr Mahaliyana's letter of 9 December 2016 referred to a prolonged 10 year history of depression and anxiety requiring medication (together with alcohol abuse). A worsening of symptoms was documented. The positon was such that the Plaintiff continued to be prescribed Mirtazapine leading up to the accident. Subsequent to the retirement of Dr Paula Cameron, the Plaintiff came to see Dr Allard psychiatrist. There had also been of referrals to Dr William, Dr Harthorn, and Mind Connections (Dr Jayalath) as earlier referred to.
3. Whatever pre-accident observations Ms Moretti was able to make, they cannot be accepted as an accurate statement of the Plaintiff's psychological health prior to the accident. Her account was to some extent at variance with the Plaintiff's own concessions made in cross examination and the treatment history earlier referred to. Beyond that, Ms Moretti's observation as to the Plaintiff's alcohol use prior to the accident also did not accurately reflect the Plaintiff's circumstances. Ms Moretti's observations of the Plaintiff following the accident sought to draw a contrast in his demeanour as being now antisocial, housebound and forlorn as compared to before the accident when he was what was described as a largely "normal person." This pre-accident assessment cannot be accepted as entirely accurate in light of the evidence, although before the accident the Plaintiff had been working.
4. As a consequence of the accident, the Plaintiff suffered a comminuted intra articular fracture of the distal radius of the left wrist with a large styloid fracture and an unstable distal radioulnar joint overall requiring three surgeries.
5. I accept that the injuries have caused the Plaintiff significant pain and discomfort. After the first surgery, I accept that some improvement in movement was recorded by Dr Stewart who then proceeded to remove the metal work and insert a bone graft with a view to further improve function. Following the second surgery, Dr Stewart noted a further improvement in the range of motion of the wrist. I would accept Dr Stewart's contemporaneous records as reliable ahead of the Plaintiff's evidence. After x-rays revealed no further union at the site of the bone grafting and also a loosening of the screw, a third surgery was undertaken after which Dr Stewart noted that the Plaintiff had as a full range of pain free pronation and supination. Whilst that position may be accepted at the time, it is evident that strengthening exercises and hand therapy were still required.
6. Shortly thereafter, the Plaintiff commenced rehabilitation with a view to resuming employment. On 17 July 2018, Dr Stewart recorded that the pain completely resolved and the Plaintiff had more function in the wrist with far improved grip strength. Whilst the Plaintiff denied telling Dr Stewart this I would again accept Dr Stewart's contemporaneous records as reliable. The Plaintiff thereafter did have a recurrence of symptoms in 2019, although in 22 October 2019, Dr Wong recorded that the Plaintiff did not need analgesia for the wrist. Thereafter, complaints as to left wrist and hand do not appear in the clinical notes although there is mention of the Plaintiff's other ailments. In any event, the Plaintiff conceded improvement. Most significantly this was after he ceased working.
7. The claim by Dr Lee that by July 2018 there was considered no restriction or dysfunction is contradicted by the evidence of the Plaintiff's attendance at the Cheerful Clinic and the assessments undertaken by Ms Alexandra Irving on 29 August 2018. Beyond that, the Plaintiff came to be taken to Royal North Shore Hospital on 11 September 2018 by ambulance after contacting the assistance line. The notes recorded that Plaintiff was anxious by reason of a job interview with another stressor being the hand injury that limited his ability to work. The concerns were further documented in Dr Wong's clinical record of 25 September 2018. The Plaintiff continued to have psychological treatment until 28 December 2018. On 3 January 2019, Dr Wong recorded that the Plaintiff felt stressed at work experiencing recurrent left wrist pain due to repeated duties and panic attacks due to the workplace. On 5 February 2019, Dr Wong stated that the Plaintiff was struggling with workload and also getting repeated left wrist soreness. Thereafter, the Plaintiff stopped working on 13 February 2019 and Dr Wong recorded improvement in symptoms. The Plaintiff's wrist was the subject of an ultrasound on 7 August 2019 which raised the suggestion of tendinosis of the ECQ tendon. The Plaintiff was prescribed Mobic and Celebrex although on 22 October 2019 he advised Dr Wong that he did not need analgesia for his wrist. His other depression and anxiety medication continued however. On 22 April 2020, Dr Wong advised the emergency department of Royal North Shore Hospital that the Plaintiff had a long history of treatment resistant depression.
8. To an extent the evidence indicates that the Plaintiff's psychological symptoms derives from the stress of what is described as Workcover and dealing with insurance. Those are matters which ordinarily would come to a close with litigation such that improvement would be anticipated.
9. Since February 2020 following a general health check, the Plaintiff has been diagnosed as having severe osteoarthritis in the left ankle and chronic lower back pain requiring physiotherapy and rehabilitation treatment. On 24 March 2020, Dr Wong noted that this was unresponsive to physiotherapy. The impact was such that Dr Wong specified a preference for ground level housing for the Plaintiff following an assessment completed on 6 April 2020. Further, Panadeine Forte had been prescribed and a specialist referral was arranged. In April 2020, the Plaintiff had what appears was the first of what he described as four heart attacks and is noted to suffer hypercholesterolemia. The Plaintiff had a pre-existing alcohol dependency and was recorded on 27 September 2018 with pancreatitis after suffering epigastric pain. The Plaintiff accepted that between his low back problems, left ankle and heart problems, he had been prevented from exercising as much as he used to and that was the reason that his weight had increased as he was exercising even less now. I accept that these co-morbidities impacted on the Plaintiff's wellbeing and earning capacity.
10. I am unable to determine on the evidence the superiority of the PAI conducted by Mr Anning compared to the psychometric testing conducted by Dr Lee.
11. Plainly enough, the Plaintiff provided a history to Mr Anning which was inaccurate and incomplete. As noted at [206] in a consultation on 14 March 2018 with Dr Wong, the Plaintiff indicated that supply of his medical records to "the insurer" should only be for those that postdate work cover injury date and only Workcover related consultations to be sent. It is not otherwise apparent the context in which those instruction were given. In the absence of further cross examination or submission by the Defendant, I am unable to take this aspect any further.
12. I would accept that the Plaintiff had an underlying borderline personality disorder based on the assessments of Lower North Shore Community Health and Royal North Shore Hospital. I also accept that the Plaintiff suffered from pre-existing anxiety, depression and alcohol dependency. Nevertheless, I accept Mr Anning's revised opinion that the Plaintiff had an aggravation of his previous major depressive disorder following the accident. Dr Lee appears to concede this as a possibility but views the aggravating effects to have ceased at a time that coincides with Dr Stewart's noting of improvements in the Plaintiff's physical condition in July 2018. I accept that the Plaintiff had a strong disposition to work. So much is apparent not only in his own evidence but also the medical history. The evidence however is that the Plaintiff struggled to maintain work particularly following the accident due to restrictions in his ability and pain leading to ongoing psychological symptoms. He may well have perceived that stopping work and associated pain would lead to an immediate improvement in mood. However, this is consistent with an inability to successfully realise a desire to work within his physical capacity contributing to his ongoing symptoms in the longer term.
13. I do not accept Dr Lee's opinion that it was distress of social anxiety that prevented the Plaintiff from attending a job assessment in 2018. On 15 August 2018, the Plaintiff is recorded by Dr Wong as being anxious that a new job might aggravate his pain. Alexandra Irving recorded on 29 August 2018 that the Plaintiff stated that he enjoyed a routine staying busy, and that he was motivated to return to work but wanted assistance. The record of 25 September 2018 indicated that the Plaintiff was in acute distress when his vocational liaison would be unavailable. It was not suggested to the Plaintiff nor was it indicated that this was due to social anxiety as opposed to the anxiety he had earlier mentioned. In any event, the Plaintiff did ultimately obtain a position which at least for some time he was happy with.
14. Overall, while I am satisfied that the Plaintiff's anxiety, depression and associated symptoms proceeded the accident, I am satisfied that they were aggravated by it. In particular, I accept that the Plaintiff's social anxiety and lack of concentration have been exacerbated.
15. I do not accept that the aggravating effects of the subject injury to the Plaintiff's psychological condition ceased as Dr Lee reported. Neither the history nor the treatment that followed the accident supports this.
16. The Defendant relied on Dr Lee and submitted that after 22 September 2018 the Plaintiff was fit for normal work or a wide range of work. [560] Beyond referring to the Plaintiff's concessions as to work capacity in cross examination it did not respond to the Plaintiff's submission as to the ongoing effects of the injury. [561]
17. It is accepted that the Plaintiff's injury has reduced his grip impacted on his day to day activities particularly those requiring repetitive movement, force or strength. He has scarring on the left forearm over the volar surface of the left wrist and also over the ulnar styloid as described by Dr Bodel and noted in Court. [562] Some pain on exertion and altered sensation can also be accepted.
18. Overall, I accept that the injuries which are the subject of the accident have impacted on the Plaintiff's ability to pursue recreational pursuits such as riding a bicycle, weight training, driving for extended periods and walking when his weight arm is not restrained. Whilst I accept this has had an impact on the Plaintiff's capacity to perform domestic duties in the past, my assessment is that these can now largely be performed with adjustments. Some duties would no doubt take longer.
19. The Plaintiff's evidence is cross examination appeared to acknowledge that his weight gain was brought about in more recent times by matters unrelated to the accident.

Non-Economic Loss

1. The Plaintiff argued that the injury physically and mentally affected the Plaintiff's quality of life and that the case fell at 30% of a most extreme case.
2. The Defendant noted that the Plaintiff had made a reasonable recovery and it was an injury to his non-dominant hand. It highlighted the unrelated co-modalities earlier discussed contending that case fell at 25% of a most extreme case.
3. Section 3 of the 2002 Act reads as follows: non-economic loss means any one or more of the following: 1. pain and suffering, 2. loss of amenities of life, 3. loss of expectation of life, 4. disfigurement.
4. In this instance, I bear in mind nature of the injury and the impact that it has had on the Plaintiff as I have found it. The Plaintiff is now 56 years of age but also carries a number of co-morbidities which I accept impact on his wellbeing.
5. Nevertheless, the accident has led to pain and suffering and loss of amenities of life. The Plaintiff is a single man who relied on his ability to use his left arm for work and domestic and recreational pursuits. He also carries some disfigurement as earlier described. No submission was advanced that the injury has led to a loss of expectation of life.
6. Overall, I would have found the Plaintiffs non-economic loss at 28% of a most extreme case being an amount of $96,000.

Past Out of Pocket Expenses

1. These were agreed at $67,026.20. [563]

Future Out of Pocket Expenses

1. Dr Thomson opined that the Plaintiff could benefit from 8 treatments of physiotherapy over a 4 week period at an average cost of $100.00 per attendance. He stated that this course could be repeated after 3 months if the first course was efficacious. Oral medications would comprise of analgesics and oral anti-inflammatory at a cost of $700.00 per annum. General Practitioner supervision would also be required in respect of which he would allow the same sum per annum.
2. Dr Bodel indicated that as far as further treatment, he indicated it should be conservative with rest and analgesic medication and exercise. [564]
3. Mr Anning opined that the Plaintiff's recovery from his psychological condition is poor and from a physical perspective he will not be able to maintain employment and therefore he is at significant risk of his depressive condition deteriorating. He recommended that the Plaintiff undertake ongoing psychiatric review and receive ongoing psychological treatment with a psychologist for a further 20 sessions at $241 per hour session.
4. In the joint report, Mr Anning stated that he could not determine the extent and nature of treatment at this point in time due to fact he had not seen him for two years but reiterated his estimate in his earlier report. Dr Lee did not consider that the Plaintiff required any treatment from injuries suffered by the accident.
5. The Plaintiff's claim was advanced as follows: 1. Attendance upon his general practitioner once every four months for review and prescriptions at $70 per sessions, or $4.04 per week: $3,370.78 2. Attendance upon a psychiatrist, say 6 sessions at $250 per session: $1500 3. 20 Sessions of psychology at $241 per session, so say $4,820 4. Medication, including analgesics and, an average of $10 per week: $8,096 1. Total $17,686.78
6. The Defendant submitted that an allowance of $5000 should be made.
7. The Plaintiff did not claim physiotherapy costs into the future. I would not in any event accept Dr Thomson's view that the Plaintiff would benefit from physiotherapy. It appears from the evidence of Ms Moretti that the Plaintiff utilises home exercise. This appears to accord with the view of Dr Stewart and Dr Bodel.
8. There is no evidence of ongoing need for analgesia although I accept it may be required on infrequent occasions as evidenced in the flare up in August 2019 which ceased in October 2019. I would also accept that some allowance for GP supervision should be provided for.
9. The Plaintiff appears to derive some benefit from psychologists and desires to pursue this. Whilst there has in the past been referral for psychiatric review, the Plaintiff has shown some reticence in following through with past referrals. Nevertheless some allowance ought to be made nonetheless.
10. Overall, doing the best I can I would make an allowance by way of buffer of $10,000 for future out of pocket expenses.

Plaintiff

1. The Plaintiff conceded that since August 2018 he was fit for work doing normal hours. [565] He did not accept however that by June 2018 he had a full range of pain free movement in his wrist turning it around up and down. [566] He considered that he would have difficulty as a traffic controller as he would have to put out a lot of signage and barricades and it would be difficult. [567] He stated that he would prefer to study. He thought that at the end of May he could work as work as a street cleaner. [568] In May 2018, he accepted he was assessed and agreed he could work as a railway protection officer. [569] The Plaintiff also accepted that he could perform light commercial cleaning work such as offices, in a hospital or school as long as it didn't require particularly heavy use of the left wrist and hand. [570] He also accepted that he could do process work and work as a sales assistant. [571] He supposed he could work as a clerk and put his name down with his network provider at different cleaning jobs. [572]
2. The Plaintiff stated that he is not working at the present time as he is finding it "hard to get a go". He gave evidence that he spent a lot of time with his job provider and works with people with disabilities. He tried to get the Plaintiff into cleaning cars for people that sell vehicles. However, he was not getting selected. He wanted to do horticultural in July and he thought that would not be labour intensive and that he would be working in predominantly general light duties. [573]
3. In cross examination, he conceded that in May 2019 he registered a business name called MowBlowGo to do gardening with a push mower and blower but no lifting or digging. He stated that it did not go ahead as he found difficulties with vibration and getting the mower in and off the ute. He acknowledged that he got flyers printed, got a logo designed and bought a cheap mower but stated he did not actually participate in the business as he tried the mower and noticed the problem. [574]

Wendy Bevan The Plaintiff consulted Ms Wendy Bevan (Occupational Therapist) for a Functional and Vocational Assessment. Following assessment, Ms Bevan prepared a report dated 15 January 2019 [575] noting the following restrictions: Maximum standing tolerance is 30 minutes and then needs to support the wrist to relieve sensory disturbance. Walking tolerance is 30 minutes maximum and then needs to support the arm and the left wrist. Running and jogging is to be avoided. Walking with carrying a load should be avoided. Unable to assume the positions of 4 point kneeling and crawling due to pain in the left wrist Only capable of lifting and carrying weights under 5kg in the left hand. Not capable of carrying weights in the left hand for more than 3 minutes. Main problem is pain in the left wrist Maximum driving tolerance recommend is 45 minutes due to pain in the left wrist and then has a break for around 10 minutes Impaired hand/power grip in the left hand compared with the right hand strength. For keyboard and writing skills is restricted to around 1 hour due to rising left wrist pain in keyboard work. [576] Ms Bevan reported that the Plaintiff now has the following physical and medical barriers to continuation of his pre-injury role as well as past and future work roles which relate to his injury to his left wrist. Constant pain in the left wrist which rises with wrist movement. Reduced tolerances to standing and walking. Restricted to lifting in a single lift with the left hand to less than 5kg due to left wrist pain. Unable to cope with carrying more than 3kg in the left hand and carrying this wright for no more than 3 minutes. Has lost bilateral upper limb capacity for lifting and carrying. Pain increases during the day when using the left hand in manual tasks and is severe by late afternoon. Difficulty in climbing ladders and scaffolding. [577] Ms Bevan found that given physical demands of lifting, standing, walking, and carrying, areas of employment outside his capacity were hospitality, service industry, transportation and machine operator, security and protective service, storeman and packer, service and maintenance, assembly process work and trades and trade assistants. [578] Overall, Ms Bevan opined that the opportunity that the Plaintiff has for future employment lied within the role of a sedentary/office based role. In light of his lack of skills, Ms Bevan was of the view that he would have to undergo retraining at an entry level for office procedures and computer skills at a Certificate III level and in order to be competitive he would need to reach intermediate standard. At the intermediate level, Ms Bevan noted that the Plaintiff would need to be capable of 40-50 wpm with an accuracy of 95% in light of the functional assessment, Ms Bevan found that the Plaintiff would have rising left wrist pain which would hinder him from reaching such productivity. Accordingly, Ms Bevan opined that in the event that retraining were undertaken then frequent rest breaks would be required but even so pain would still rise over the day. Bearing this in mind, she was of the view that the Plaintiff would need to be employed for no more than 4 hours a day over a 5 day period thus a total working week of 20 hours as an entry level clerical/administrative assistant. Ms Bevan nevertheless remained pessimistic as to the Plaintiff's ability to gain such employment and sustain it bearing in mind the restrictions and the Plaintiff's age. [579] On the basis of working 20 hours a week, Ms Bevan estimated the net annual earning to be $24,750.

James Bryden-Brown Mr James Bryden-Brown (Physiotherapist) conducted a functional assessment on 9 and 14 January 2010 and reported on 22 January 2020. Mr Bryden-Brown noted that at the time of the accident the Plaintiff was independent in self-care. His domestic tasks consisted of cooking, cleaning, grocery shopping, loading, and unloading the washing machine and hanging items on an internal airer and gardening tasks. He noted that the Plaintiff washed his vehicle once a week for 90 minutes to 2 hours. His bicycle 3 times a week for up to 45 minutes, had occasional workouts at a friend's home gymnasium, occasionally surfed and undertook motorcycling three times a week. Following the accident Mr Bryden-Brown reported that was able to perform his preinjury cleaning tasks such as vacuuming, sweeping, and mopping with a right hand bias. He noted that he mainly used his right hand for heavier manual handling tasks and was able to wash a car. He no longer rode a bicycle nor did gym work and his exercise consisted of walking 3 to 4 times a week for between 45 and 60 minutes.

1. Reported symptoms included: Intermittent deep sharp pain extending from the ulnar aspect of the mid 5th metacarpal region to the upper third of the medial aspect of the ulna Intermittent dull pain in the central lumbosacral region Numbness in the dorsum of the left hand and ring, middle and index fingers Moderate numbness in the palm of the left hand Intermittent swelling in the left hand and fingers Stiffness and swelling in the left ankle Left hand grip weakness Loss of balance A functional assessment was carried out. Mr Bryden-Brown summarised the physical assessment as follows: Right hand dominant Symmetrical stance, normal spinal curve, hips and shoulders level, wasting of the left deltoid and infraspinatus muscle bulk, marked wasting of the left calf, pronated left foot, marked left ankle swelling, marked abdominal obesity. Normal heel/toe gait at average pace with normal truck rotation and arm swing. functional range of motion in the neck Mildly reduced range of motion in the trunk. Reduced range of left shoulder flexion and external rotator range of motion. Weakness in the left shoulder abductor, internal and external rotator muscle groups Reduced left wrist range of motion Marked swelling in the left ankle Weakness in the left ankle invertor, evertor and plantarflexor muscle groups Below average right and left hand grip strength Below average dominant right hand dexterity Below average non-dominant left hand dexterity Reduced right and left straight leg raises (predominantly bilateral hamstring tightness) Normal upper and lower limb reflexes Functional balance in bipedal and right unipedal stances Inability to adopt a left unipedal stance Impression of a Fair level of cardiovascular fitness Mr Bryden-Brown stated: Based on the results of this assessment Mr Gillam is not considered physically capable of returning to his pre-injury role for Auburn Council. He did not demonstrate the left hand grip strength, dexterity and manual handling capacity required for this role. He demonstrated restrictions in Waist to Floor Lift, Waist to Crown Lift, Bilateral Front Carry, Left Hand Carry, Pushing and Pulling. Mr Gillam's pre-injury role is classified in the light category of physical work demands with occasional medium demands. He demonstrated the manual handling capacity for sedentary and semi sedentary roles with his non-dominant left hand and light work with his dominant right hand. The results of this assessment revealed that Mr Gillam is currently physically capable of returning to the workforce in a range of alternate roles. He demonstrated abilities in sitting, standing and walking. He demonstrated a functional range of motion and strength in the bilateral lower limb and right upper limb peripheral joints. Future work for Mr Gillam is determined primarily by the intensity and pace of left hand tasks. He is not suited to roles requiring constant forceful activity with the left hand such as packing, processing and sorting and roles requiring heavy bimanual handling tasks and power gripping such as using a pick and shovel. He is currently best suited to self-paced work at optimal heights with tasks performed close to the body. Appropriate roles for Mr Gillam include selected clerical, administrative, supervisory, sales and light cleaning roles, In appropriate roles, Mr Gillam is currently physically capable of full time work While this report has made conclusions based on Mr Gillam's physical abilities, it needs to be correlated with those of appropriate psychologists or psychiatrists regarding his psychological suitability for work and for specific jobs relevant to their responsibilities and working environments. [580]

John Raue Mr John Raue (Vocational psychologist) undertook a vocational assessment of the Plaintiff on 9 January before reporting on 22 January 2020. [581] After reviewing the Plaintiff's education, employment job skills, hobbies and interests, the impact of the accident, and undertaking cognitive testing, Mr Raue formed the view that some of the specific options that the Plaintiff could consider from a psychological perspective noting the self-reported physical limitations included: Commercial Cleaner Road Maintenance Traffic Controller Delivery Driver/Courier (light eg pathology) Product Assembler Product Examiner Sales Assistant And with further training: Order Clerk Inquiry Clerk Receiving & Despatching Clerk Rates of pay for these positions were outlined ranging from $932 gross for a sales assistant to $1319 gross for an inquiry clerk.

Job Match Report Thereafter, a Job Match report was prepared by Messrs Bryden-Brown and Raue based on the Functional and Vocational Assessments combined. The report indicated that the following options were considered most appropriate vocational choices with gross pay rates: [582] Commercial Cleaner - (Light- selected roles only (not pre-injury role)); Award: $818.50. Age 45 plus: $965. Outlook: moderate growth. Road Maintenance Traffic Controller- Award: $838. Age 45 plus: $1,209. Outlook: strong. Product Assembler - (Selected Roles) - Award: $762.10. Age 45 plus: $966. Outlook: stable. Product Examiner - No award wage. Age 20 to 24 starting salary: $901; Age 45 plus: $1244. Outlook: declining. Sales Assistant (General) (Selected Roles) - Award: $813.60. Age 45 plus $932. Outlook: moderate growth. Order Clerk-Award: $911. Age 45 plus: $1,191. Outlook: stable Inquiry Clerk-Award rate: $911 gross. Age 45 plus $1319. Outlook: moderate growth. Despatching and Receiving Clerk- Award: $911. Age 45 plus $1,403.00. Outlook: stable. The report indicates that where a person has no experience they may be remunerated at the applicable award rate for an initial period and thereafter the best estimate of their potential earnings is the relevant average weekly earnings which in this instance were calculated on the basis of age level salaries.

Joint Report A joint report was prepared following a conclave between Ms Bevan, Mr Rau and Mr Bryden-Brown. [583] Ms Bevan observed that three of the jobs identified in the Vocational Capacity Centre Report (VCC) being Commercial Cleaner, Product Assembler and Sales Assistant, were on the basis of selected tasks. She considered this to be unviable and not sustainable to be included as suitable occupations. Ms Bevan reiterated the restrictions on the Plaintiff's ability and her findings as to the industry fields that she considered to be unsuitable due to their physical requirements that he can no longer undertake without experiencing distractible pain levels. Ms Bevan thereafter researched the industry fields identified by the VCC report. She observed that a number of the specific occupations excluding clerical work were above the Plaintiff's assessed physical capacity as validated on the day of her functional assessment. Beyond that she noted the following: Sales Assistant- required repetitive bilateral activities throughout the day and also store presentation roles including stock movement; Machine Operation- depending on the machine may require use of the left hand for manual control and steering required a power grip; Driver- the Plaintiff could only tolerate 45 minutes and mostly used his left hand; Traffic Controller- Most positions require multi-skilling particularly on construction sites where the worker also participates in manual labour and requires an ability to drive to work sites suggesting excessive vehicular traffic; Product Assemby/ Product Examiner- Requires manual manipulation to a significant degree which would be problematic Commercial Cleaner- Whilst some light tasks fall within the role of cleaner, workers are expected to undertake all aspects of a cleaning role and will not be engaged to only be selective in the tasks they select. Ms Bevan considered that Mr Raue and Bryden-Brown proceeded on the basis of the Plaintiff returning to employment by selecting out the tasks that are beyond his capacity. Such choice indicated that they considered him only fit for modified duties within the work role. Ms Bevan did not consider this to be viable. Beyond that, Ms Bevan reiterated her earlier expressed opinion as to the Plaintiff's suitability to retrain for an entry level clerk (sedentary) for 20 hours a day. As to remuneration, she revised her estimate of earnings to $23,681.24 gross. Mr Raue pointed out that Ms Bevan was overly focussed on the possible limitations rather than on what the Plaintiff was capable of doing. He noted that the reality was that within a classification category based on job titles there are particular roles which do not require all of the tasks covered in a classification category to be performed. Ms Bevan and Mr Raue agreed that the earnings data used in the VCC report came from the Australian Bureau of Statistics and was accepted as reliable. Ms Bevan maintained that the Plaintiff would only be suitable in a part time role of 20 hours a week whereas Mr Raue maintained the Plaintiff was capable of fulltime employment in a broader range of duties. Both agree that he would be paid at entry level based on the award however Mr Raue did not rule out that he could move into a higher paid role.

1. As noted earlier, the parties agreed that the Plaintiff in the past was earning an average $1,100 net per week.

Submissions

1. The Plaintiff submitted that he had a strong work history and had been working most of the time since he was at school. The Plaintiff accepted that the injuries rendered him incapable of working at all for certain periods of time and rendered him incapable of working pre-injury duties and hours during other periods of time. By reference to the workers compensation records produced by the insurer, the Plaintiff's submitted that he was not working or not working to his full capacity up until 28 September 2018 although he is receiving treatment up until December 2018 and his final surgery occurred on 26 April 2018. Reference was made to medical certificates which confirmed periods of incapacity. Accordingly, the Plaintiff's submitted that actual earnings for the period 23 June 2017 to 30 June 2019 represents his maximum earning capacity post injury. This was comprised of:
2. From 1 July 2017 to 30 June 2018, $4,174.00 net total for work with Rubicor Workforce Pty Ltd; and
3. From 1 July 2018 to 30 June 2019, $8,147.00 for work with Alnila Family Trust being a total of $12,321.00.
4. The Plaintiff submitted that on the basis that whilst the Plaintiff did perform some work in the two years after his injury, he had to cease them after a short period of time solely due to the symptoms of the left wrist. It was submitted that the medical records of Emerald Medical Centre and the workers compensation insurer's file demonstrate the difficulties that the Plaintiff faced trying to work with his injuries. The Plaintiff acknowledged the evidence of Ms Bevan (occupational therapist) which opined that the Plaintiff is capable of earnings $24,750.000 net per annum (being $475.96 per week). Accordingly, the Plaintiff claimed that a loss of income should be calculated as follows: 1. From 24 June 2017 to 30 June 2018 (53 weeks) loss of $58,300.00 less $4,174.00 (being earnings during that period) being a loss of $54,126.00. 2. From 1 July 2018 to 30 June 2019, $57,200.00 less $8,147.00 being a loss of $49,053.00. 3. From 1 July 2019 to 30 June 2020 (52 weeks at $624.04) equals $32,450.08. 4. From 1 July 2020 to (adjusted to present) (59 weeks at a loss of $624.04 per week) equals $19,118.36. 5. The Plaintiff also claims superannuation
5. The Defendant submitted that on 18 October 2017, the Plaintiff's treating psychologist noted that the Plaintiff was almost back to full duties and litter-picking with no heavy lifting although he had some anxiety about having to drive a sweeper. By 31 October 2018, the Plaintiff was certified fit for some type of employment for normal hours and normal days per week with no restrictions. By 28 November 2018, Dr Wong certified the Plaintiff fit for pre-injury duties with no restrictions.
6. The Defendant submitted that the Plaintiff was essentially totally incapacitated for work from time to time but had some capacity to 22 September 2018 being a period of 65 weeks allowing a loss of $1,100 net per week totalling $65,000. Noting that the Plaintiff did work during that period, an allowance should be made for that.
7. The Defendant contended that thereafter, the Plaintiff was either fit to return to normal duties, or if not, he was fit for a wide range of jobs so that his loss, if any, would be minimal. It drew attention to the following: 1. The plaintiff agreed that since August 2018, he has been fit for work, and for normal hours, Monday to Friday. 2. He thought by about the end of May 2018 he could work as a street cleaner. 3. He agreed he could work as a Railway Protection Officer by May 2018. 4. He could work picking up litter and rubbish if he was provided with a bin with wheels. 5. He could do light commercial cleaning. 6. He could probably clean offices and could work as a cleaner in a hospital or in a school. 7. He could work in a job that did not require particularly heavy use of his left wrist and hand. 8. He could do process work. 9. He could work as a sales assistant. 10. He supposed he could work as a clerk.
8. It was noted that the Plaintiff had put his name down at different cleaning jobs and worked intensely with his network provider.
9. Beyond that, the Defendant drew attention to the Plaintiff's chronic back lower back pain and chronic left ankle pain, the Plaintiff's heart problems and the Plaintiff's ongoing alcohol intake. Accordingly, the Defendant submitted that the Plaintiff either had no ongoing loss of earning capacity causally related to the subject incident, or else any reduced earning capacity is fairly minimal and no more than $100 net per week from 23 September 2018 allowing a loss of $100 net per week. According to the Defendant's calculations, past economic loss would comprise of $65,000 plus $100 for 152 weeks making a total of $80,200. From this, it submitted that the total of $12,321 of earnings should be deducted making a figure of $67,879.
10. To this figure, an allowance of 11% for past loss of superannuation should be allowed.

Consideration

1. Dr Wong certified the Plaintiff fit for preinjury duties without restrictions from 28 November 2018. I would accept that the Plaintiff was incapacitated from time to time before that date subject to his demonstrated capacity to earn.
2. On this basis, I would allow from 75 weeks from 24 June 2017 to 30 November 2018 being an amount of $82,500 less the amounts earned by the Plaintiff totalling $12,321 making a past loss to that point of $70,129.
3. In respect of the period thereafter, it appears the Plaintiff accepted that there are a variety of jobs that he considered he could perform. I do not accept the report of Ms Bevan which sought to assess the Plaintiff's loss on the basis of him retraining to perform clerical work part time. In my view, that conclusion constrained the available consideration of tasks and hours that the Plaintiff could undertake. The range of positons that the Defendant's experts made reference to were broader however it is acknowledged that not all jobs in the identified categories would be suitable and the Plaintiff's ability to access the open labour market is to that extent reduced. The physical assessment of Mr Bryden-Brown was also at a time more proximate to when Dr Wong assessed the Plaintiff as having chronic lower back pains and chronic left ankle pains secondary to severe osteoarthritis. Even so Mr Bryden-Brown concluded amongst other things there was a functional range of movement and strength in the bilateral lower limb peripheral joints and a symmetrical stance with normal spinal curves, hips and shoulder level. I acknowledge that he also found a fair level of cardiovascular fitness which preceded the Plaintiff's first heart attack and there was also no reference to pancreatitis.
4. Putting aside the Plaintiff's other co-morbidities, I would assess the Plaintiff's loss of capacity to work arising from the subject injury from 30 November 2018 to date in so far as is referable to the accident at an average $300 a week for 142 weeks being an amount of $42,600. In coming to the figure I have been guided by the Job Match report subject to the qualifications referred to.
5. That makes a total loss of past income as $112,729. As this represents a net figure, I would allow loss of superannuation at 11% [584] of the past income loss being an amount of $12,400.19. This makes a total past loss of earning capacity of $125,129.19.

Future Loss of Earning Capacity

1. The Plaintiff was educated to year 10. He obtained a certificate III in Fitness and in Applied Electrics. Between 1981 and 2000 his work history included hospitality, labouring, landscaping and as a geology field assistant. Thereafter, he worked with travel lodge in hospitality between 2000 and 2003, as a removalist between 2005 and 2015, and with Council cleansing departments between 2015 and 2017. In December 2016, he commenced work with SCO recruitment. Other than the brief periods of work referred to in respect of past loss of earning capacity he has not worked since the accident.
2. In 2018, he applied for a number of positions as follows: a cleaner, operations assistant, worksite cleaner, catering, cleaning and laundry assistant, and a member of event site crew. [585] At one stage he sought to commence a business although he did not come to pursue it. He gave evidence that notwithstanding his back and ankle he would plod on and work with his left wrist and would like to do a certificate 2 in horticulture which commenced in July.

Submissions

1. The Plaintiff submitted based on Ms Bevans report suffered a loss of $624.04 which allowing for CPI adjustments would come to $650 net per week for the remainder of his working career. The Plaintiff used a multiplier of 473.9 after allowing 15% reduction for vicissitudes claimed future economic loss of $261,829.75 plus 14% of loss of superannuation coming to $36,656.17. In the alternative, the Plaintiff argued that it was entitled to a buffer as he was disadvantaged in the open labour market noting his age, education and work experience around $200,000.00.
2. The Defendant submitted that the Plaintiff had no ongoing loss of earning capacity attributable to the subject accident and moreover his unrelated co-morbidities would be sufficient to preclude him from being gainfully employed to retirement age in any event
3. In the event that the Court were to find to the contrary, the Defendant submitted that the Plaintiff should only be allowed $100 per week until retirement age which the 5% multiplier for 11 years would come to 44.1 after allowing 15% for vicissitudes; the figure would come to $37,749 together with the loss of superannuation at 14% an initial $5,285.

Consideration

1. Section 13 (1) of the 2002 Act provides: 13 FUTURE ECONOMIC LOSS--CLAIMANT'S PROSPECTS AND ADJUSTMENTS (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
2. For reasons earlier provided, I am satisfied that the Plaintiff has ongoing incapacity arising from the subject accident. Whilst I would accept that the Plaintiff's co-morbidities do have an impact on his work capacity, I remain of the view that so does the subject injury. I accept that the Plaintiff is well motivated. Following the conclusion of this matter, he would ordinarily be relieved of the associated stress and anxiety and some improvement in his psychological condition could be expected following treatment. He would most probably pursue retraining and potential self-employment opportunities. He has previously been self-employed for an extended period and according to his evidence, successfully.
3. The Plaintiff gave evidence that but for the accident he would have remained with SCO for 12 to 18 months before seeking to return to removalist work. Whilst the Plaintiff gave no thought as to how long he would work for, the Defendant's calculations appear to accept a period of 11 years. I will proceed on this basis. Consistent with the agreement of the parties and making some adjustment for inflation, I would accept that but for the accident, the Plaintiff's earning capacity would now be around $1200 net.
4. Having regard to my findings as to the most likely future circumstances, and potential earnings referred to in the Job Match Report subject to the qualifications mentioned I would allow an average sum of $280 net per week for 11 years less 15% for vicissitudes. Using the 5% multiplier (444.1) this would come to an amount of $105,695.80. I would add 14% for loss of superannuation being an amount of $14,797.41 making a total for loss of future earnings of $120,493.21

The Plaintiff

1. The Plaintiff gave evidence that prior to his accident he resided in a two bedroom compact apartment with a bathroom, small kitchen, laundry, living room and garage. Prior to the accident he described that he did most of the cooking, cleaning up outside and some laundry and vacuuming. His house companion (Ms Moretti) would predominantly do shopping.
2. He stated after the accident Ms Moretti would assist drying him, cooking and doing the house work. He estimated that this would be perhaps 10 to 12 hours a week. Around mid-2018 he stated that he was back to cooking, washing up and would just go about things differently. He stated that Ms Moretti would assist with drying and dressing him. [586]
3. For a year following his last surgery, the Plaintiff described that he would not do a lot in domestic tasks. He said he would carry with the right hand. He stated that he would do cleaning and some outdoor work.
4. In cross examination, the Plaintiff conceded that he could use a blower, rake leaves outside the unit and place them in a bin. This required him to bend down to fill the bin. He conceded that whilst it was difficult to do, it had nothing to do with his wrist. He stated that whilst he may have stated that a person helped him move the bin a couple of times, neighbours come and go and his neighbour does not help him move the silo bin. [587]
5. The Plaintiff conceded that he was able to cook but didn't shop. He stated that he could clean and look after his own room whilst Ms Moretti does the shopping as she did before the accident. Whenever he needs something that Ms Moretti can't do would then attend to it. He accepted that he could change the sheets on his bed. The Plaintiff stated that he still has difficulties dressing, showering and drying his back. [588]

Lorretta Moretti

1. Prior to the accident, Ms Moretti described that the domestic chores were shared equally between them with the Plaintiff doing cooking and washing up. She would do the shopping and the vacuuming and laundry would be shared. In cross examination, Ms Moretti conceded that apart from the cooking each basically did things separately but lived under the same roof.
2. Following the accident, Ms Moretti stated that she took over nearly all of the Plaintiff's chores and estimated that this comprised around 12 hours a week. Following the Plaintiff's final surgery, she estimated that that the number of hours she spent doing things that the Plaintiff use to do had fallen a little to 10 hours a week. She described the Plaintiff as a good friend who she would help as long as she could. In cross examination, Ms Moretti conceded that the Plaintiff is now home most days and had done some cleaning and vacuuming. To the extent that she had picked up the slack this had been for both their benefit.

Wendy Bevan

1. Ms Bevan gave evidence following a physical and functional assessment of the Plaintiff and opined following impairments: 1. Maximum standing tolerance is 30 minutes and then needs to support the wrist to relieve sensory disturbance and rising pain; 2. Walking tolerance is 30 minutes maximum and then needs to support the arm and the left wrist. Running and jogging is to be avoided. Walking with carrying a load should be avoided; 3. Unable to assume the positions of 4 point kneeling and crawling due to pain in the left wrist; 4. Maximum driving tolerance recommended was 45 minutes due to pain in the left wrist and then has a break for around 10 minutes; 5. Only capable of lifting and carrying weights under 5 kg in the left hand. Not capable of carrying weights in the left hand for more than 3 minutes. Main problem is pain in the left wrist; 6. Impaired hand/power grip in the left hand compared to the right hand strength; 7. Keyboard and writing skills is restricted to around 1 hour due to rising left wrist pain in keyboard work. [589]
2. Based on her assessment the total past care weekly hours would be: 1. From 29/6/2017 [590] to 29/4/2018 - 3. 5 hours for personal care; 2. From 29/6/2017 to 29/12/2017 - 7 hours for meal preparation and 2 hours for transportation totalling 9 hours; 3. From 29/6/2017 to 31/5/2018 - 2 hrs for cleaning, 0.75 hour laundry and 1.5 hours for gardening totalling 4.25 hours 4. From 29/6/2017 to 15/1/2019 - 1 hour a week for shopping.
3. In relation to gardening and lawns, Ms Bevan noted that the area surrounding the ground floor of the unit is very thick with leaves that can pile to a height that overflows onto the veranda. Further, the leaves can pile to a height that overflows into the veranda and the drains for the waterholes come out form the veranda area and get blocked regularly by these leaves. Ms Bevan noted that following the accident he needed help with the raking, sweeping and picking up of the leaves and debris dropped on a regular basis onto the ground to keep the drains clear before resuming this role after 4 months. That assistance was said to be provided by his friend and flatmate Ms Morretti. [591]
4. In relation to transport, Ms Bevan reported that following the accident he was unable to drive due to his injury for around 6 months post discharge. Further, Ms Moretti is recorded as having driven him to all local destinations including medical and physiotherapy appointment. [592]

Sanja Zeman

1. The Defendant qualified Ms Sanja Zeman to prepare a functional capacity report dated 24 September 2019. [593] Ms Zeman reported that despite extensive hand therapy, the Plaintiff has been left with residual pain and marked weakness of the left hand impacting on his function notably that relating to tasks requiring internal rotation of the left wrist with radial deviation in task performance.
2. Ms Zeman carried out a functional analysis which noted the following impairments: 1. Reduced range of movement of the left elbow on pronation and supination with reported pain through the ulnar aspect of the left wrist; 2. A dominant grip strength of 25kg which is 70% of the normative for gender and age and a non-dominant grip strength of 9kg which is 19% of the normative data for gender and age; 3. A pronounced thoracic kyphosis during testing over the overhead reach position reporting increased left wrist pain (3/10) at 1 minute of testing. Shoulder fatigue was reported at 2.20 minutes of testing and at the completion of tensing shoulder pain was reported as 5/10 and left wrist pain 4/10; 4. An ability to assume a deep squat however unstable in this position associated with left ankle issues; 5. Manual handling safe maximum load bench 8.58kg with an ability to carry a weighted backpack for exercise weighing 15 kg. [594]
3. Based on instructions from the Plaintiff, Ms Zeman noted that prior to the accident the Plaintiff was primarily responsible for the outdoor maintenance including the enclosed garden area, his bedroom, doing his own laundry, shopping for himself and cooking for himself (or both he and Ms Moretti).
4. Following the accident, Ms Zeman was advised that the Plaintiff shares meal preparation more than previously and was independent with self-care. Ms Moretti continues to assume primary role responsibility for vacuuming and bathroom cleaning. The Plaintiff cleans his own bedroom and maintains the yard sometimes with a neighbour's assistance.
5. Ms Zeman found that the Plaintiff was adapted well to compensate for his residual weakness and functional impairment and has regained the ability to undertake all of his previous roles and responsibilities in the context of his living arrangements. However, for the past she made the following assumptions: Period of Assistance Care Needs / Total Duration
6. 23.06.2017 - 15.08.2017 (7.7 weeks) Mr Richard Gillam sustained a left wrist fracture on 23.06.17. He proceeded to internal fixation on 28.06.2017, and during this period had limited function of the left hand. By 15.08.2017, he was noted to have reasonable flexion, extension, pronation and supination of the wrist, and was cleared to resume work duties.
7. 16.08.2017 - 05.12.2017 (16 weeks) Mr Richard Gillam returned to work during this period, despite persistent symptom presentation. He continued it present with non-union of the fractures of his left wrist, impacting on function and pain presentation.
8. 06.12.2017 - 23.01.2018 (7 weeks) Mr Richard Gillam proceeded to further surgery on 06.12.2017, undertaken as a day only procedure. He resumed hand therapy one week post operatively, and by 23.01.2018, was approved to come out of the splint.
9. 24.01.2018 - 25.04.2018 (13 weeks) Mr Richard Gillam continued to present with pain and persistent weakness within the left hand over this period. As of 20.02.2018, he was still is unable to do any heavy manual work and cannot lift more than one kg with the left hand.
10. 26.04.2018 - 07.06.2018 (6 weeks) Mr Richard Gillam proceeded to further day surgery on 26.04.2018. During his post-operative recovery period he made further functional gains to strength and hand function.
11. 08.06.2018 - current (64 weeks) Current function maintained.

1. Thereafter Ms Zeman proposed gratuitous care as follows: Period Dates Weeks in Period Functional Status Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 1 23.06.2017 - 15.08.2017 7.7 WEEKS 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week 2 16.08.2017 - 05.12.2017 16 WEEKS Total assistance per week: Nil - some tasks neglected Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 3 06.12.2017 - 23.01.2018 7 WEEKS 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week 4 24.01.2018 - 25.04.2018 13 WEEKS Total assistance per week: Nil - some tasks neglected Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 5 26.04.2018 - 07.06.2018 6 WEEKS 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week 6 08.06.2018 - current 64 WEEKS Total assistance per week: Nil

1. In relation to past gardening, Ms Zeman noted that the Plaintiff maintains the outdoor balcony and the front yard which is part of common property. He was not provided with any specific gratuitous assistance following the accident and tasks were neglected. On resumption he gained assistance from neighbours in relation to pulling a heavy wheelie bin after he collected leaf litter and plant material if it became too heavy. He is recorded as advising that he is able to manage the bin if it is not overly full and has the option of pacing the work or gain assistance from a neighbour as it is an area that is common property and not related to a role responsibility. Ms Zeman noted that the Plaintiff was not provided with any specific gratuitous assistance following the subject accident. [595]
2. So far as transport was concerned, Ms Zeman recorded that he was not driving following the subject accident and during each period of post-operative recovery. He relied on Ubers twice weekly to access hand therapy and was otherwise housebound and his flatmate provided occasional assistance only. [596]

Joint Report

1. A joint report was also tendered following a conclave. [597]
2. In that report Ms Zeman maintained the opinion earlier expressed with little elaboration. Ms Bevan by contrast noted a greater level of disability than Ms Zeman associated with the injury.
3. In relation to personal care, Ms Bevan observed that to have good care it was necessary to have good fine motor skill manually, bilaterally and unilaterally with an ability to undertake wrist flexions and extension, deviation and pronation/supination of dressing and undressing and drying after a shower and adjusting clothing after toileting. It was noted that hand therapy was undertaken for a six month period on a weekly basis. Ms Bevan noted that it was reasonable and necessary for past gratuitous care assistance to be continued from the date of discharge for a ten month period due to wrist pain and immobilisation of the left wrist and attempts to undertake thee jobs to try and sustain employment with resultant pain and to undertake extensive has therapy to try to endeavour to recover function.
4. In relation to cleaning, Ms Bevan opined that to do heavier tasks in cleaning around the home, both upper limbs need to be used under force of pressure or weight /load and to have the capacity to lift carry, push and pull to significant levels, have bilateral power grip and be able to sustain the grip and to be dexterous at the wrist under load and pressure in order to push and pull and manipulate mops and brooms including wrist flexions and extension as well as deviation supination and pronation. She noted that wrist movement would exacerbate pain and recorded that the Plaintiff did not achieve reasonable independence until around four months after his final operation in January 2018. Ms Bevan allowed 2 hours a week form 29 June to 31 May 2019 in respect of these tasks.
5. In respect of meal preparation, Ms Bevan stated that in order to carry out meal preparation the Plaintiff would have had to be able to lift and carry weights repetitively using both hands to lift and carry saucepans and dishes with hot fluid, to apply power grip bilaterally and to have good manual dexterity bilaterally to utilise implements in a dexterous way including slicing and chopping and cutting and serving and these requirements include the need for relative flexions and extension deviation, supination and pronation all of which aggravate the Plaintiff's wrist pain. Ms Bevan opined that she allowed for assistance for six months during recovery from surgery and attempting his three jobs.
6. In respect of transportation, Ms Bevan recorded that the Plaintiff would have difficulty driving and noted that he kept driving to 45 minutes before taking a break to relieve the pain and discomfort. She noted that he had to attend regular therapy sessions as well as regular medical appointments and to attend also for hospitalisation visits and hence it was reasonable and necessary that he be provided with assistance from Ms Moretti.
7. In respect of laundry, Ms Bevan reported that the Plaintiff would undertake all laundry tasks but not ironing. There was evidence following the accident that these tasks were performed by Ms Moretti following the accident in light of the Plaintiff's restriction and ongoing therapy although both the Plaintiff and Ms

Submissions

1. The Plaintiff claims as a result of his injuries and disabilities he has been unable to attend to numerous domestic duties and has been relying on his friend Loretta Moretti. Based on a report Wendy Bevan (occupational therapist dated 28 January 2019) the Plaintiff claimed compensation for gratuitous domestic care and assistance provided by Loretta Moretti as follows: 1. From 23 June 2017 to 29 December 2017, 17.75 hours per week for 27 weeks at $30.00 an hour = $14,377.50 2. From 30 December 2017 to 29 April 2018, 8.75 hours per week for 17 weeks at $30.00 an hour = $4,462.50 3. From 29 April 2018 to present, the Plaintiff conceded that it did not meet the statute requirements.
2. Accordingly, the claim made was for gratuitous care totalling at $18,840.00.
3. The Defendant asserted that whilst both parties had qualified occupational therapists, the Court should disregard both opinions and consider the evidence given by the Plaintiff and Loretta Moretti which is submitted evidenced that the Plaintiff would not meet the minimum threshold test in s 15 of the 2002 Act namely at least six hours a week for a minimum of six months or that the need has arisen solely because of the subject injury. Therefore, it was submitted that no allowance should be made for past or future care.

Consideration

1. I do not accept the Defendant's submission as to the evidence of the Plaintiff and Ms Moretti being such that no allowance should be made for past domestic care.
2. Whilst both reports are based on what was viewed as reasonable and necessary including the Plaintiff's instructions, Ms Zeman's report excluded periods when the Plaintiff resumed working despite acknowledging that he continued to present with symptoms impacting on his function.
3. Ms Bevan's assessment was conducted on 15 January 2019 when the Plaintiff was experiencing difficulties with his wrist after resuming work. Ms Zeman's report was based on an assessment on 20 August 2019. This was at a time that the Plaintiff had a recurrence of symptoms from which he appears at least to have recovered to the point of not requiring analgesics when he saw Dr Wong on 22 October 2019. Prior to the assessment Dr Wong recorded on 12 April 2019 that he felt well. The Plaintiff's claim however relates to a period that preceded both functional assessments.
4. Generally, I would prefer the evidence of Ms Bevan which appears to give better estimates of the task requirements and the corresponding explanations. In particular, I would accept the estimates for personal care and meal preparation and provision.
5. Ms Zeman made no allowance for domestic cleaning being something that Ms Bevan allowed 2 hours a week for a period up to 4 months following the last surgery. Ms Zeman stated that prior to the accident, Ms Moretti undertook the internal home maintenance other than the Plaintiff's room. However, Ms Bevan recorded that this was previously carried out on a 50/50 shared basis. That accords with the oral evidence particularly of Ms Moretti. In any event, accepting that this task could not be performed by the Plaintiff, it is appropriate to make an allowance in accordance with Teuma v CP & PK Judd Pty Ltd. [598]
6. Ms Bevan noted the need for gardening work to have been carried out and the Plaintiff's difficulty in doing so. According to Ms Bevan, such services were required during the four month period following the Plaintiff's injury and Ms Moretti carried out this work. Neither the Plaintiff nor Ms Moretti gave oral evidence of occurring at any point. Ms Zeman's report indicated that when the Plaintiff could not do the work it was neglected. Beyond that, Ms Zeman indicated that when the Plaintiff resumed that task the Plaintiff gained assistance from his neighbour to pull or push the silo bin. The Plaintiff's oral evidence was that that this happened a couple of times and whilst it was difficult to do, it has nothing to do with his wrist. In the circumstances, I am not satisfied that there was any specific prior gratuitous assistance in this respect and would make no allowance in this regard.
7. Whether there was a need for transportation assistance or not there was no oral evidence either from the Plaintiff or Ms Moretti that the latter provided such care. Ms Bevan reported that the Plaintiff advised that Ms Moretti would drive him to all local destinations including medical and physiotherapy appointments. Ms Zeman recorded that she was advised that only occasional assistance was provided by Ms Moretti and the Plaintiff either used Ubers or was housebound when unable to drive. In the absence of any further evidence, I am not satisfied that any allowance should be provided in this regard.
8. In respect of shopping, Ms Bevan listed the tasks required which included lifting and carrying weights beyond 5-6 kgs, pushing and pulling a loaded trolley, manoeuvring it and carrying shopping for transportation. She noted that the Plaintiff reported to her that he shared this task with Ms Moretti. Ms Bevan recorded that the Plaintiff relied on Ms Moretti during periods that he was unable to drive. The evidence before me was that shopping was a task that Mr Moretti generally performed both before and after the accident as part of the overall sharing of responsibilities to which the Plaintiff still was able to make contribution as evidenced by his cooking and cleaning. Nevertheless, in accordance with Teuma v CP & PK Judd Pty Ltd, I would accept the need for the service is compensable.
9. On these figures, the total allowance would be 14.25 hours from 29 June 2017 to 29 December 2017 being 6 months (26 weeks) and thereafter 7.25 hours to 29 April 2018 (17 Weeks). Thereafter, the requirements of s 15 of the 2002 Act would not be met. The amount claimed by the Plaintiff of $30 per hour does not exceed a rate of provided for in s 15(4) of the 2002 Act. Accordingly, I would allow $30 per hour from 29 June 2017 to 29 December 2018 (26 weeks) for 14.25 hours per week this would amount to $11,115. Accepting the same rate hour from 30 December 2017 to 29 April 2018 (17 weeks) for 7.25 hours per week this would amount to a figure of $3697.50. The total for past domestic assistance would be $14,812.50.

Submissions

1. The Plaintiff claimed that costs of future care and assistance on a commercial basis as it was not reasonable to expect Ms Moretti to provide care and assistance in the future.
2. The Plaintiff's claim was based on 1.5 hours recommended by Ms Bevan for removal of what were described as a prolific amount of leaves and branches and debris from the balcony in order to keep the water drains clear and prevent flooding to the unit. Ms Bevan stated that the Plaintiff's functional limitations would be too severe to meet these physical demands. Accordingly, provision should be made for commercial care assistance of 1.5 hours a week for collecting such rubbish and placing it in the green bins.
3. Further, it was submitted that as the Plaintiff could not contribute to any of the manual tasks required for the completion of grocery shopping he should be given financial assistance by way of $10 per week to access delivery services.
4. Accordingly, a claim was made of the following: 1. 1.5 x $56.33 x 10 years (412.9) = $34,887.99 2. $10.00 per week grocery delivery for 10 years (412.9) = $4,129.00 Making a total future claim of $39,016.99.
5. The Defendant submitted that there is nothing to suggest that the current living arrangements will be likely to change in the future and there was no basis upon which to award future attendant care services on a commercial basis in accordance with Miller v Galderisi. [599]

Consideration

1. In White v Benjamin [600] Basten JA at [78] stated: The second basis of the challenge to the assessment of domestic care was the rejection of the claim for services of commercial providers in the future. The temporal limits did not apply to such a claim. However, the acceptance of such a claim must rest on a finding that such services would at some point be availed of in place of the gratuitous services. (This element of damages is unusual because it refers not to the plaintiff's tortiously caused disability or incapacity, but the means by which she will address it: this factor follows from the differential approach required by statute to an assessment of a claim for gratuitous services.)
2. I accept that Basten JA held at [87] that it would be wrong to place too much weight on the existence or absence of direct evidence of intention. Further, it was held that the absence of evidence that if funds were available commercial services would be used, was also not determinative.
3. Nevertheless, some analysis of the evidence to support such an allowance is required. The Plaintiff submitted that Ms Moretti has a full time job and is very much affected by the Plaintiff's injuries and it was not reasonable to expect her to provide extra hours of care and assistance.
4. As noted earlier, the evidence of the Plaintiff is that he presently carries out the gardening work. According to Ms Bevan, when the Plaintiff resumed doing so, the lifting, carrying and using the implements led him to suffer severe wrist pain and struggle to undertake this task. [601] The Plaintiff gave no oral evidence to this effect otherwise accepting that he could use a blower, rake leaves outside the unit and place them in a bin. Moreover, in May 2019, he proposed to set up a business registering the MowBlowGo to do gardening. Whilst he said that this did not proceed, it was not suggested that raking and blowing were amongst the activities he could not perform. In all the circumstances, I am not satisfied that the gardening tasks he performs are outside his functional capacity such that an allowance for commercial care in the future should be made. In any event some of the gardening he performs according to Ms Zeman is work on common property that is not related to a role responsibility that he has to undertake.
5. So far as the cost of grocery delivery service was concerned, that appears more in the nature of future out of pocket expenses. In any event, the evidence was that both before and after the accident this was a task that Ms Moretti performed as part of the shared living arrangements between them. Ms Moretti described the Plaintiff as a good friend who she would help as long as she could. The evidence of Ms Zeman is that this is a task that the Plaintiff has been able to resume. The evidence of Ms Bevan is that due to the forces involved, the Plaintiff is unable to carry out that task. I accept that this is so. Whilst the present shared arrangements are likely to continue for the immediate future, an allowance should be made for the possibility that they change requiring him to avail commercial services. I would allow $250.

Summary

1. Accordingly for the reasons stated had the Plaintiff succeeded I would have awarded damages as follows: 1. Non-economic loss $ 96,000 2. Past out of pocket expenses: $ 67,026.20 3. Future out of pocket expenses: $ 10,000 4. Past loss of earning capacity: $125,129.19 5. Future loss of earning capacity: $120,493.21 6. Past loss of domestic assistance: $ 14,812.50 7. Future loss of domestic assistance: $ 250 8. TOTAL: $433,711.10
2. To that figure, I would need to add the Fox v Wood [602] component and make the relevant deduction pursuant to s151Z of the 1987 Act. I would have heard further from the parties in relation to both matters consistent with my reasons noting also that neither party submitted in relation to the s 151H threshold in the 1987 Act.
3. However, in light of my earlier findings, the Orders will be: 1. Verdict for the Defendant. 2. Subject to any application to be made to my Associate to relist the matter within 14 days for any further or other order as to costs. The Plaintiff is to pay the Defendant's cost. 3. Exhibits to be retained for 28 days.

Endnotes

1. Exhibit A; T 15.46.
2. T 170.14-.15.
3. T 158.36-.38.
4. T 158.26-.34.
5. T 190.26-.30.
6. T 190.50-191.4.
7. (2009) 52 MVR 492; [2009] NSWCA 78, Basten JA at [155]-[156] p 526 (with whom Handley AJA agreed). See also SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56, Ward JA (with whom Macfarlan JA and Sackar J agreed) at [115].
8. T 21.9-.35.
9. T 21.39-.43
10. T 61.40-62.14
11. T 62.16-.24.
12. T 62.35-.42.
13. T 62.45.
14. T 63.27-.29.
15. T 63.31-.35.
16. T 63.37-.39.
17. T 64.1-.23.
18. T 67.14-.19
19. T 66.19-.36.
20. T 66.38-67.7.
21. T 66.4-.17.
22. T 21.45-.50.
23. T 22.6-.9.
24. T 22.13-.22.
25. T 22.24-.29.
26. T 67.26-.43.
27. T 141.31-.49.
28. T 137-35-.38.
29. T 140.1-.2.
30. T 140.7-.9.
31. T 140.37-.39.
32. T 73.49-74.7.
33. T 63.44-.49.
34. Exhibit J pp62- 74 (also MFI 4) and Exhibit 4 pp 17-29.
35. Exhibit J pp 38-45.
36. Exhibit J pp 46-51.
37. Exhibit J p 51.
38. T 23.8-.17.
39. T 64.25-.28.
40. T 65.25-.43.
41. T 64.30-.35.
42. T 64.37-.42.
43. T 64.48-.49.
44. T 64.44-.46.
45. T 68.13-.28.
46. T 68.42-.45.
47. T 172.42-.46.
48. T 172.48-173.14.
49. T 178.11-.14
50. T 173.16-.17.
51. T 173.36-174.6. Exhibit G (red marking).
52. T 177.33-.40.
53. T 178.13-.14.
54. T 177.50-178.7.
55. T 23.28-.31.
56. T 24.42-.50.
57. T 25.7-.17 also T 82.20-.31.
58. T 25.23-.32
59. T 25.34-.43.
60. T 69.25-.39.
61. T 70.32-.40.
62. T 70.42-.44.
63. T 70.46-.50.
64. T 70.4-.16.
65. T 70.21-.23.
66. T 70.25-.26.
67. T 83.29-84.10.
68. T 86.1-.8.
69. T 86.15-.16.
70. T 92.27-.32.
71. T 93.5-.24.
72. T 94.
73. T 94.37-95.6.
74. T 26.41-.50.
75. T 74.9-.16.
76. . T 74.18-.40.
77. T 27.12-.15.
78. T 27.22-.24.
79. T 27.22-.33.
80. T 27.35-.40.
81. T 28.4-.17.
82. T 79.7-80.1.
83. T 80.18-.24.
84. T 80.30-.36.
85. T 71.1-.3.
86. T 71.10-.13.
87. T 95.15-.18.
88. T 95.20-.25.
89. T 95.27-.30.
90. T 95.32-.35.
91. T 96.4-.16.
92. T 96.21-.23.
93. T 97.1-.3.
94. T 97.15-.18.
95. T 97.25-.30.
96. T 97.48-.49.
97. T 97.20-.23.
98. T 98.48-.50.
99. T 99.6-.7.
100. T 99.9-.12.
101. T 99.26-.40.
102. T 99.48-.49.
103. T 100.1-.6.
104. T 28.44-.46.
105. T 29.3-.8.
106. T 29.30-.35.
107. T 29.33-.38.
108. T 29.45-.48.
109. T 30.20-.24.
110. T 174.12-.16.
111. T 174.18-.22.
112. T 174.24-.38.
113. T 183.27-.31.
114. T 24.33-.40.
115. T 183.37-.42.
116. T 183.44-.47.
117. T 183.37-184.11.
118. T 184.9-.20.
119. T 184.19-.34.
120. Exhibit 4 p1-2.
121. Exhibit J p191-2.
122. Exhibit J p188.
123. T 92.17-.24 and T93.45-95.9.
124. T 71.14-.16.
125. T 71.18-.20.
126. T 71.32-.34.
127. T 81.13-.28.
128. T 81.30-.39.
129. T 81.41-.43.
130. T 71.36-.38.
131. T 71.40-.43
132. T 72.5-.22.
133. T 72.37-.50.
134. T 73.1-.7.
135. Exhibit J, p800 and T74.47-.49.
136. T 75.1-.3.
137. Exhibit J, p35.
138. T 75.33-.40.
139. Exhibit J, p206.
140. Exhibit J, p324.
141. Exhibit J, p446.
142. T 76.19-.25.
143. Exhibit J, p580.
144. T 75.6-.20.
145. Exhibit J, p810.
146. Exhibit J, p1212.
147. T 76.27-.36.
148. Exhibit J, p210.
149. T 76.45-77.16.
150. Exhibit J, p215.
151. T 77.33-.48.
152. Exhibit J, p282.
153. T 78.1-79.5.
154. Exhibit 4, p 431 at [6.4].
155. T 100.39-.44.
156. T 104.27-.34.
157. T 104.36-.39.
158. T 104.49-105.1.
159. T 170.17-.19.
160. T 170.21-.22.
161. T 172.19-.28.
162. T 170.25-.27.
163. T 170.33-.34.
164. T 171.1-.8.
165. T 171.11-.12.
166. T 171.15-.19.
167. T 171.21-.23.
168. T 171.25-.26.
169. T 171.31-.42.
170. T 171.47-172.2.
171. T 172.13-.17.
172. T 175.33-.35.
173. T 175.37-.39.
174. T 176.4-.9.
175. T 176.11-.16.
176. T 176.16-.26.
177. T 176.28-.30.
178. T 176.32-.34.
179. T 176.43-177.11.
180. T 177.13-.15.
181. T 177.17-.24.
182. T 180.3-.49.
183. T 181.19-.20.
184. T 181.37-.38.
185. T 181.40-182.6.
186. T 182.10-.15.
187. T 182.20-.21.
188. T 182.23-.24.
189. T 182.26-.32.
190. T 158.43-.44.
191. T 159.1-.6.
192. T 159.8-.12.
193. T 159.14-.19.
194. T 159.21-.24.
195. T 159.35.
196. T 160.12-.16.
197. T 162.12-.17.
198. T 162.19-.24.
199. T 162.26-.28.
200. T 162.30-.47.
201. T 162.49-163.5.
202. T 163.10-.15.
203. T 163.37-.40.
204. T 163.42-.46.
205. T 164.1-.2.
206. T 164.4-.6.
207. T 164.8-.9.
208. T 164.33-.35.
209. T 164.41-.47.
210. T 165.6-.11.
211. T 165.26-.43.
212. T 165.45-.50.
213. T 166.1-.11.
214. T 166.18-.19.
215. T 166.21-.24.
216. T 166.26-.30.
217. T 166.32-.34.
218. T 167.10-.11.
219. T 167.16-.18.
220. T 167.20-.22.
221. T 167.24-.32.
222. T 190.43-.50.
223. T 190.47-191.4.
224. T 191.6-.11.
225. T 191.13-.25.
226. T 191.33-.37.
227. T 191.33-.43.
228. T 191.45-.47.
229. T 192.10.15.
230. T 192.24.25.
231. T 192.27-.29.
232. Exhibit J, p206 and T 192.33-.34.
233. T 194.11-.13.
234. T 194.15-.17.
235. T 195.1-.3.
236. T 195.5-.23.
237. T 195.28-.35.
238. T 195.37-.40.
239. T 198.1-.8.
240. T 198.10-.12.
241. T 198.14-.16.
242. T 198.22-.25.
243. T 198.27-.42.
244. T 199.1-.15.
245. T 199.17-.30.
246. T 197.5-.15.
247. T 199.38-.46.
248. T 199.48-.50.
249. T 200.5-.13.
250. T 200.19-.22.
251. T 200.24-.25.
252. T 202.21-.25.
253. T 202.27-.35.
254. T 202.37-.50.
255. T 204.45-.49.
256. T 205.1-.7.
257. T 205.10-.13.
258. T 205.15-.17.
259. T 205.33-.40.
260. [2016] NSWSC 1897 at [80]
261. (2003) 65 NSWLR1; [2003] NSWCA 47 at [143].
262. Plaintiff's written submissions at [6]-[8].
263. T 12.41-.47.
264. Amended Statement of Claim at [22].
265. Plaintiff's written submissions at [53].
266. Chapman v Hearse (1961) 106 CLR 112 at p120-121.
267. T 205.38-.39.
268. Payne v Parker [1976] 1 NSWLR 191 per Glass JA at p201-2.
269. Shaw v Thomas [2010] NSWCA 169 at [44].
270. Plaintiff's written submissions at [70].
271. Plaintiff's written submissions at [52]-[58] and Defendant's written submissions at [7]-[44].
272. [2009] NSWCA 227, Basten JA at [2].
273. [2004] NSWCA 34, per Mason P.
274. T 174.42-175.17.
275. (1959) 101 CLR 298 at 320.
276. (1991) 22 NSWLR 389 at p418 (Kirby P agreeing).
277. (2011) 243 CLR 361; (2011) 276 ALR 375 at p393-4.
278. Exhibit J, p203-5.
279. T 188.5-.37.
280. T 188.39-.43.
281. T 189.7-.10.
282. T 196.8-197.1.
283. T 197.5-.15.
284. Plaintiff's written submissions at [18]-[22].
285. See Bassett v Cameron [2021] NSWSC 207 at [349]. See Plaintiff's written submission at [22].
286. T 260.44-261.10.
287. Plaintiff's written submissions at [57].
288. Defendant's written submissions in reply at [37].
289. Plaintiff's written submissions at [35].
290. Exhibit B.
291. T 19.18-.25.
292. T 19.27-.42.
293. T 19.40-.49.
294. T 51.14-40.
295. T 51.42-52.2.
296. T 52.4-.20.
297. T 52.48-52.3.
298. T 47.10-.20.
299. T 48.1-.3.
300. T 48.9-.28.
301. T 48.30-.36.
302. T 48.38-.39.
303. T 48.45-49.2.
304. T 49.4-.9.
305. T 49.21-.22.
306. T 49.24-.30.
307. T 50.23-.42.
308. T 50.34-.45.
309. T 51.1-.5.
310. T 52.31-.34.
311. T 52.36-.38.
312. T 52.48-53.3.
313. T 53.6-.13.
314. Exhibit J, p317 and p427.
315. T 53.49-54.17.
316. T 54.26-.43.
317. T 55.5-.21.
318. T 56.10-.13.
319. T 57.4-.16.
320. T 59.23-.27.
321. T 59.40-.43.
322. T 57.34-.41
323. T 61.12-.21.
324. T 58.16-.27.
325. T 58.33-.38.
326. T 58.40-.48.
327. T 58.50-59.17.
328. T 107.19-.21.
329. T 107.19-33.
330. T 107.35-.38.
331. T 32.50-33.8.
332. T 34.11-.12.
333. T 34.30-.31.
334. T 34.39-.40.
335. T 34.45-.46.
336. T 35.15-.19.
337. T 35.35-.38.
338. T 32.50-33.3.
339. T 119.8-.24.
340. T 116.15-.30.
341. T 35.40-36.3.
342. T 36.15-.21.
343. T 36.25.
344. T 40.49-41.4.
345. T 40.49-41.12.
346. T 36.34-37.12.
347. T 127.1-.5.
348. T 129.22-.23.
349. T 129.13-.41.
350. T 130.31-131.19.
351. T 143.42-144.4.
352. T 149.10-.13.
353. T 148.22-.46.
354. T 145.38-.40.
355. T 146.5-.11.
356. T 150.36-152.13.
357. Exhibit J p304-5.
358. Exhibit J, p305.
359. Exhibit J, p305-6.
360. Exhibit J, p306.
361. Exhibit J, p306.
362. Exhibit J, p291.
363. Exhibit J, p308.
364. Exhibit J, p292.
365. Exhibit J, p309.
366. Exhibit J, p292.
367. Exhibit J, p292.
368. Exhibit J, p292 and p310-11.
369. Exhibit J, p311.
370. Exhibit J, p311-2.
371. Exhibit J, p293.
372. Exhibit J, p313.
373. Exhibit J, p293 and p313.
374. Exhibit J, p413.
375. Exhibit J, p314-5 and p416.
376. Exhibit J, p419.
377. Exhibit J, p294 and p316.
378. Exhibit J, p316.
379. Exhibit J p316.
380. Exhibit J, p317.
381. Exhibit J, p317 and p427.
382. Exhibit J, p318.
383. Exhibit J, p429.
384. Exhibit J, p319.
385. Exhibit J, p432.
386. Exhibit J, p432.
387. T 54.45-55.2.
388. Exhibit J, p294.
389. Exhibit J, p435.
390. Exhibit 4, p304-9.
391. Exhibit 4 p310.
392. Exhibit J p321.
393. Exhibit J p295 and p322.
394. Exhibit J, p322.
395. Exhibit J, p295.
396. Exhibit J, p323.
397. Exhibit J, p323.
398. Exhibit J, p436.
399. Exhibit J p437.
400. Exhibit J p 296 and p439-40.
401. T 30.29-.37.
402. Active Range of Movement.
403. Exhibit J, p800.
404. Exhibit J, p801.
405. Exhibit J, p 324.
406. Exhibit J, p446.
407. Exhibit J, p384.
408. Exhibit J, p580.
409. Exhibit J, p888.
410. Exhibit J, p586.
411. T 31.42-.46.
412. Exhibit J, p325.
413. Exhibit J, p326.
414. Exhibit J, p296.
415. Exhibit J, p327.
416. Exhibit J, p327.
417. Exhibit J, p327.
418. Exhibit J p1069-1073.
419. Exhibit J, p877.
420. Exhibit J, p874.
421. Exhibit J, p871.
422. Exhibit J, p868.
423. Exhibit J, p1071-1073.
424. Exhibit J, p328.
425. Exhibit J, p299.
426. Exhibit J, p861. and p863.
427. Exhibit J, p329.
428. Exhibit J, p296.
429. Exhibit J, p330.
430. Exhibit J, p318-9.
431. Exhibit J, p386.
432. Exhibit J, p855.
433. Exhibit J, p330.
434. Exhibit J p331.
435. Exhibit 4, p320-1.
436. Exhibit 4, p322-3.
437. Exhibit J, p331.
438. Exhibit J, p296-7.
439. Exhibit J, p332.
440. Exhibit J, p297.
441. Exhibit J p332-3.
442. Exhibit J, p832.
443. Exhibit J, p333.
444. Exhibit J, p334.
445. Exhibit J, p297.
446. Exhibit 4 p325.
447. Exhibit 4, 324-6.
448. Exhibit 4, p326.
449. Exhibit J, p824-5.
450. Exhibit J, p748-9 and p863.
451. Exhibit J, p335.
452. Exhibit J, p457.
453. Exhibit J, p817.
454. Exhibit J, p642-649.
455. Exhibit J, p650.
456. Exhibit J, p297 and p336.
457. Exhibit J, p337.
458. Exhibit 4, p328-30.
459. Exhibit J, p338.
460. Exhibit J, p338.
461. Exhibit J, p340.
462. Exhibit J, p338.
463. Exhibit J, p297.
464. Exhibit J, p339.
465. Exhibit J, p339.
466. Exhibit J, p811.
467. Exhibit 4, p332.
468. Exhibit 4, p340.
469. Exhibit 4, p335.
470. Exhibit 4, p336.
471. Exhibit J, p341.
472. Exhibit J, p341.
473. Exhibit J, p682-3.
474. Exhibit J, p342.
475. Exhibit J, p683.
476. Exhibit J, p687-691.
477. Exhibit J, p1073-1100.
478. Exhibit J, p692.
479. Exhibit J, p343
480. Exhibit J, p343.
481. Exhibit J, p694-5.
482. Exhibit J, p720-3.
483. Exhibit 4, p359.
484. Exhibit J, p697-8.
485. Exhibit J, p344.
486. Exhibit J, p699-700.
487. Exhibit J, p704 and Exhibit 4 p344.
488. Exhibit J, p344.
489. Exhibit J, p345.
490. Exhibit J p523.
491. Exhibit J, p346.
492. Exhibit J, p346.
493. Exhibit J p346.
494. Exhibit J p392.
495. Exhibit J, p705 and Exhibit 4, p379.
496. Exhibit J p347.
497. Exhibit J, p347.
498. Exhibit J, p 298.
499. Exhibit J, p1074.
500. Exhibit J, p1095 and 1097.
501. Exhibit J, p348.
502. Exhibit J, p348-9.
503. Exhibit J, p298.
504. Exhibit J, p349.
505. Exhibit J, p349.
506. Exhibit J, p298.
507. Exhibit J, p349.
508. Exhibit J, p350.
509. Exhibit J, p298.
510. Exhibit J, p393.
511. Exhibit J, p 350.
512. Exhibit J, p298.
513. Exhibit J, pp 350-351.
514. Exhibit J, p298 and 351.
515. Exhibit J, p352.
516. Exhibit J, p299.
517. Exhibit J, p352-353.
518. Exhibit J, p299.
519. Exhibit J, p353-354.
520. Exhibit J, p354.
521. Exhibit J, p400.
522. Exhibit J, p501.
523. Exhibit J, p750.
524. Exhibit J, p354.
525. Exhibit J p503.
526. Exhibit J, p299.
527. Exhibit J p504-5.
528. Exhibit J, p300.
529. Exhibit J, p355 and P 506-7.
530. Exhibit J, p300.
531. Exhibit J, p356.
532. Exhibit J, p357.
533. Exhibit J, pp357-8.
534. Exhibit J p358.
535. Exhibit J, p508.
536. Exhibit J, p758-9.
537. Exhibit J, p358
538. Exhibit J, p510.
539. Exhibit J, p300.
540. Exhibit J, p762.
541. Exhibit J, p787.
542. Exhibit J, p359.
543. Exhibit J, p300.
544. Exhibit J, p360.
545. Exhibit J, p300.
546. Exhibit J p209.
547. Exhibit J, p281.
548. Exhibit J, p 283.
549. Exhibit J, p 285.
550. Exhibit J p288.
551. Exhibit J, p213.
552. Exhibit J, p213.
553. Exhibit 4, p404.
554. Exhibit 4, p410.
555. Exhibit 4, p 412.
556. Exhibit 4, p416.
557. Exhibit K5 p22.
558. Defendant's written submissions at [37]-[43].
559. Defendant's written submissions at [102].
560. Defendant's Written Submissions at [110]-[111]. See Plaintiff's Written Submissions at [102]-[121].
561. Defendant's Submissions in Reply at [41].
562. T 34.20-.31.
563. Exhibit A at [12].
564. Exhibit J, p285.
565. T 116.44-117.5.
566. T 119.8-.14.
567. T 118.19-.36.
568. T 118.11-.14.
569. T 118.48-119.2.
570. T 132.43-133.11.
571. T 133.35-.39.
572. T 133.47-.49.
573. T 38.36-.46.
574. T 134.1-.39.
575. Exhibit J, p227.
576. Exhibit J, p238-240.
577. Exhibit J, p232 at [3.1].
578. Exhibit J, p232 at [3.3] and p244-6 at [10].
579. Exhibit J, p 234-5 at [5.2.7]-[5.2.9].
580. Exhibit 4, p477.
581. Exhibit 4, p483.
582. The information has been supplemented with the 5 year employment projection from the Australian Government Job Outlook from the joint report discussed (see Exhibit K5 pp116-9).
583. Exhibit K5.
584. Accepted by both parties. See Plaintiff's written submissions at [146] and Defendant's written submissions at [118].
585. Exhibit 4, p337-342.
586. T 39.49-40.48.
587. T 123.-25.
588. T 125.11-.48.
589. Exhibit J, p257-8 at [3.2].
590. Date of discharge from hospital.
591. Exhibit J, p271-2 at [8.6.1].
592. Exhibit J, p274 at [8.8.1].
593. Exhibit 4 p426.
594. Exhibit 4, p438-441 at [13.2.4].
595. Exhibit 4, p451 at [14.6.5].
596. Exhibit 4, p452 at [14.6.7].
597. Exhibit K5 pp34-87.
598. [2007] NSWCA 166 at [51]-[65] per Ipp JA (Hodgson and Basten and JJA agreeing).
599. [2009] NSWCA 353 at [18], [20]-[21].
600. [2015] NSWCA 75.
601. Exhibit J, p273 at [8.6.1(d)].
602. (1981) 148 CLR 438. 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: 09 October 2021