Smith v Alone - [2016] NSWDC 265 - NSWDC 2016 case summary — Zoe

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Smith v Alone

[2016] NSWDC 265

District Court of NSW|2016-09-02

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Source facts

Court

District Court of NSW

Decision date

2016-09-02

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

Introduction

The plaintiff, Mr Jeffrey Warren Smith, brings proceedings for damages for personal injury when he was struck by the defendant's motor vehicle on 17 November 2011.
Liability has been admitted and contributory negligence by the plaintiff (who was affected by alcohol at the time of the accident) agreed at 60%. The remaining issue is the assessment of damages. The following should be noted: 1. The plaintiff is not entitled to damages for non-economic loss (s 131 Motor Accidents Compensation Act 1999 (NSW) ("the Act")) as the extent of his injuries has not been assessed as sufficient to pass the threshold. 2. Past out of pocket expenses are agreed in the sum of $29,323.75. 3. As to past and future economic loss, the defendant concedes that the plaintiff is permanently unfit for work as an installer of air-conditioning and ducting, and for other heavy manual labour of the kind that he performed prior to the accident.

[2]

The factual issues to be resolved

The parties were not able to agree as to the issues for determination, so I will set out what their differing views are.
The plaintiff's statement of issues identified eleven issues as follows: 1. With respect to past economic loss, has the plaintiff been totally incapacitated since the date of accident to the date of trial and, if not, to what extent did he retain earning capacity? 2. Given almost five years have elapsed since the accident, what weekly net wage figure should be the measure of the plaintiffs past loss? 3. As to future economic loss, given the plaintiffs injuries, both physical and psychiatric, and given his education and training, is the plaintiff totally incapacitated for all forms of work in the future? 4. If the answer to 3 above is no, what percentage of earning capacity has the plaintiff retained? 5. Given that almost five years have elapsed between the accident and trial and given the vagaries of the future, what weekly wage figure should the Court adopt as a yardstick for the plaintiffs future loss? 6. Does the plaintiff exceed the threshold pursuant to s 141B Motor Accidents Compensation Act 1999 (NSW)? 7. If the answer to 6 above is yes, how many hours of gratuitous domestic assistance has the plaintiff needed and received since the accident and as a consequence of the accident? 8. Is the plaintiff entitled to an award with respect to future commercial care? 9. If the answer to 8 above is yes: 1. How many hours per week should be awarded to the plaintiff? 2. What hourly rate should the Court apply? 3. Over what period should the award apply? 1. Is the plaintiff entitled to an award to represent losses of future out of pocket expenses including aids and equipment? 2. If the answer to 10 above is yes, what amount should the Court so award?

[3]

The circumstances of the plaintiff's accident

The plaintiff and a work mate went to several hotels on the night of the accident. While the precise amount the plaintiff consumed is unknown, he was well affected by alcohol. The plaintiff's accident occurred on the Moore-Oxley bypass at Campbelltown, after he stepped off a traffic island in the middle of the road directly into the path of the defendant's vehicle, which was travelling in the southbound lane. He was struck with force by the defendant's vehicle. He was conveyed to hospital by ambulance.
While the plaintiff now has very little recollection of how the accident happened, he did not disagree with the contents of the police record of interview at the hospital: "Q. Then the question that was asked of you: "Where were you drinking that night? What were your movements for the night?" and the answer that you gave was, "My friend Billy and I left from here. I had one full strength long neck about 3pm‑ish when I came home from work. Billy and I walked to the Campbelltown RSL Club. At the RSL Club I went in and had a few beers. I had four or five schooners of full strength VB. I don't remember leaving the RSL Club and going next door, but Billy told me we then went to CCs and I had about five or six more drinks. I don't remember that, though. I didn't have any dinner that night. I don't remember after the RSL Club, though". The question was, "What do you think your level of intoxication was that night?" "I have no idea, I can't remember. I'm not sure if it's because of the accident or the alcohol". Do you remember giving those answers to the police officer? A. Yes. I vaguely remember, but, yeah. Q. The fact is that you had gone out and you had been drinking and consumed a substantial amount of beer on that night; do you agree? A. Yeah. Q. You accept that you were probably intoxicated on that night when the accident happened? A. Yes." ( T 89 - 90)
The plaintiff's injuries were the subject of a series of medical complications which extended the period of his medical treatment well beyond the general parameters for recovery. This is a significant issue in relation to his claims for home care and for economic loss, but not for general damages, as assessment of the plaintiff's non-economic loss is agreed not to pass the threshold.

[4]

The plaintiff's evidence

The plaintiff attended high school to school certificate level and then, between 1987 and 1990, completed an apprenticeship in sheet metal working. Although this apprenticeship was mostly practical work, he also attended some college classes.
The plaintiff carried out farm work in the country town of Trangie and farms in that area between 1996 and 2005, during which time he was in a relationship with a young woman and became the father of two children. During this period, he worked on farms and heavy labouring jobs, but was not in continuous employment. His farm employment was influenced by seasonal factors as well as by the drought (T 122). His evidence was that, while he was living in the country, he supplemented his income with a second job as an air conditioner repairer but, judging by his tax returns for the latter part of this period, this kind of work appears to have been within modest financial parameters, in that there is no reference to it on his tax returns.
Although Mr McCarthy submitted that the plaintiff had "worked for most of his career in air conditioning maintenance where he has applied his skills as a sheet metal worker" and that he has been fully employed since leaving Trangie in about 2005 - 6 (written submissions, paragraph 4), this does not appear to be consistent with the plaintiff's description of his work prior to 2005. However, the plaintiff certainly did carry out this kind of work after he moved to Sydney in about 2005 - 2006. The plaintiff said that this was very physically demanding work: "Q. What physical role did you play in installing those units? A. Well, we installed the whole lot, so we were in the roof, on the roof, up and down the floors. Q. What were you actually doing? Not all of us here have had experience in installing air conditioning, so just try and paint a picture of what you were actually doing with your hands? A. You're up, you work on the ladder ‑ like, 80% of the day you're up on the ladder, like, just installing the air conditioning and ducting the roof, the sheet metal ducting, lifting it over your head and screwing it all together and just ‑ then putting that together and cutting through your ceilings and onto the roof and ‑ yeah. Q. How would you describe that work, in terms of it being light, medium or heavy? A. It's very heavy work. Just our toolboxes are, like, 20 or 30 kilos just in tools you've got to cart around with you. Q. Your tool box is 20 or 30 kilos, is it? A. Yes. Q. How much of the day have you got to carry that around with you? A. All day, and a ladder. Q. You've got to carry the ladder as well? A. Yeah. Q. What percentage of the day are you on your feet? A. 100% of the day. Q. Did you ever have any difficulties or problems from a physical point of view, doing that work? A. No. Q. Did you ever have any problems from an emotional point of view, doing that work? A. No. Q. Did you enjoy that work? A. Yes, very much." (T 25)
The plaintiff had been employed for about five weeks at Complete Air Conditioning at the time of the accident, after a period of unemployment of several months (since 27 June 2011).
He described his pay and work at Sea-Air as follows: Q. What was the base wage? A. At Sea‑Air I think it was $35 an hour. Q. Do you remember what it was per year but, the annual wage? A. 72,800. Q. And on top of that was there overtime? A. Yes. Q. How much overtime was available? A. As much as you wanted. I was doing most days an extra two hours every day and maybe four on Saturday, so a good ten hours a week. Q. Was overtime paid at a higher rate? A. Yes. Q. What rate was overtime paid at? A. 52. Q. Do you know how much you were, on average, clearing in your hand every week at Sea‑Air? A. At Sea‑Air, no. On an average, I would say 1500 ‑ 1200, 1500. " (T 23 - 24)
In the course of describing his work history in examination in chief, the plaintiff acknowledged that, prior to the accident, he had been charged with traffic offences involving alcohol, but said that these convictions had never stopped him working: "Q. Were you physically strong before this accident? A. Yes. Q. You lost your driver's licence for a while, didn't you? A. Yes. Q. For a period of three years. What period did that cover? A. 2010 to 2013. Q. When you didn't have your licence did that ever stop you working? A. No. Q. How did you get about? A. On the tram." (T 44)
The plaintiff's claim for damages is based on a regular work history and that he enjoyed excellent health. As Mr McCarthy put his client's position in his written submissions, while his drinking had been referred to by medical practitioners, the plaintiff's work life was unaffected, as the plaintiff "has not so much as stubbed his toe in 25 years" as a result of any drinking or other health problem (plaintiff's written submissions, paragraph 47).
The plaintiff in examination in chief was asked about criminal offences other than drink driving charges: "Q. Before we move onto the Sea‑Air do you recall there being some other incidents with the law over the course of your life? A. Sorry, can you repeat that. Q. Do you recall any other incidents with the law involving being charged by police over the course of your life? A. Had a cannabis possession once in the 90s. I think that's pretty much it." (T 19)
He recalled other criminal proceedings as follows: "Q. What other trouble have you had, if any, where the law has got involved? You told us about the drink/drives, you've told us about a possession. You've told us about the assault that you spent 14 days in gaol for in 1997. What other matters have you had where the police been involved? A. There was another assault charge. Q. Anything else? A. I got a 400 hour community service order once. Can't remember what the charge was exactly for, probably the assault charge. There was a charge where I was charged with a weapon but I think that charge was dropped or downgraded on ‑ it was the weapon was as in a motor vehicle but I'm not sure, yeah. I can't remember, your Honour. It was in the early 90s, I think." (T 20)
He also related an occasion when he had hit his brother-in-law and had been charged: "Q. What happened? A. We just got into an altercation one night at home. It was just the one punch thrown and I give him a black eye and, yeah, the police were called and I was charged. Q. Were you drinking at the time? A. Yes. Q. All the offences you've told the Court about how many of them involved alcohol? A. All of them. Q. You hit your brother‑in‑law, apart from the black eye was he injured? A. No. Q. You two made up after that? A. Yeah, we were mates again the next day. Just, yeah, heated argument at the time and yeah." (T 20)
The plaintiff was put on a bond, but breached the bond on a later alcohol-related occasion, when he "threw some chips" at a taxi driver and was sentenced to three months imprisonment (T 21). This event occurred after the plaintiff's accident.
The plaintiff acknowledged having to serve a six-month term of imprisonment in the second half of 2010. He also acknowledged having to complete a three-month term of imprisonment following the accident (for the taxi driver incident), but spent most of this time in hospital due to medical complications. He said that he had learned his lesson as to the relationship between drinking and violence-related offences from each of these occasions and was now careful about what he drank.
Counsel for the plaintiff noted in his submissions, in support of this evidence, that the plaintiff's general practitioner's records showed that he had cut down on his drinking shortly before the accident. The plaintiff's evidence in response to Mr McCarthy's questions in examination in chief were: "Q. Before we just move on to the accident, you've told her Honour about these incidents involving all the trouble you've gotten into in your life, and you've also told her Honour that these incidents have all revolved around you consuming alcohol. Have you taken any measure to reduce the amount of alcohol you consume? A. Yes, your Honour. Q. What are those measures? A. I've went to see a psychologist and got prescribed some medication to try and stop drinking. Q. I'll stop you there. When was that? A. I think that was in ‑ after I got released ‑ I think it was in 2012, maybe. I'm not 100% sure." (T 22)
The plaintiff identified this general practitioner as Dr Michael. He said that he had cut down his drinking to a few drinks on the weekend and tried to have 3 to 4 alcohol-free days during the week. He told the court he had also successfully lost weight, as he had a longstanding blood pressure problem and was at risk for diabetes. Dr Michael is the general practitioner who has been prescribing Endep to him.
This brings me to a description of the plaintiff's injury and treatment. He remembered little from this period in hospital but described in detail the lengthy period of rehabilitation. The precise nature of his ongoing problems is set out in careful detail by Dr Walker, and I have set out the relevant extracts from his reports on this topic below.
The plaintiff's recovery from his injuries was slow and full of complications. He suffered from constant pain in the leg, and was unable to weight bear for what appears to have been a period of almost three years by reason of the initial non-union and then slow union of his distal fibula. This required the placement of a device called an "external fixateur" (sometimes spelled as "fixator" in the medical reports), which was not only painful and unsightly, but significantly hampered his ability to mobilise.
An additional complicating factor was the series of infections which prolonged the plaintiff's treatment, in addition to the failure of his fracture to unite. Further, he had the anxiety of being told by Dr Walker (see Dr Walker's report of 2 December 2013) that if his leg fracture did not unite, the worst case scenario would be that he might be looking at a possible amputation.
As a result, the plaintiff underwent a series of surgical procedures of a painful and frightening nature, which impaired significantly on his ability to care for himself and to return to work.
By 30 April 2015, Dr Walker was able to note that following the latest surgery the plaintiff's fracture was healing and should continue to heal, but even that this stage the plaintiff was using a walking stick 60% of the time. Dr Walker estimated that union following the 2014 operation would take about 12 to 18 months.
The plaintiff's evidence was that he was, and remains, on constant medication and is still effectively unable to look after himself. For the first twelve months after his accident, he lived with his sister Rebecca, and received frequent home care visits from his other sister Tammy. Rebecca, her family and Tammy effectively had to do everything for him. After he moved to his own accommodation, a home unit in Campbelltown, they continued to visit him on a regular basis and continued to have to do everything for him. He has now moved into a property which was owned by a deceased member of the family, where he lives alone, and his sisters continue to come to his home three to four times a week to do everything for him, including grocery shopping, cooking, vacuuming, cleaning and other household tasks. He feels embarrassed about this and, if he was awarded a sum which enabled him to hire commercial cleaners, he would do so.
The plaintiff described his current state of health, medication and future plans as follows: "Q. Would you like to be working? A. I would love to be working. Q. Have you made any attempt to get work since the accident? A. No. I wouldn't be able to work. Q. Is there anything you can think of that you could do? A. I can't do much, unless ‑ I can't hardly even get out of bed unless I'm taking OxyContin. Q. OxyContin: first of all, how often do you take it? A. Twice a day. Q. And how often do you purchase it? A. Once a fortnight." (T 37)
In addition to the physical pain from which the plaintiff suffers, he is depressed and "down a lot" (T 37). The plaintiff described himself (and his sisters confirmed) prior to the accident as being a happy and well-adjusted person. In the words of his sister Ms Jackson, he was a "pretty happy go lucky type of guy" and a person of "good character" (T 178). However, he has suffered significant changes in temperament following the accident: "Q. From an emotional point of view, Mr Smith, are you able to detect any changes between the sort of bloke you used to be and who you are now? A. Yes. Q. What's the nature of those changes? A. I don't feel as happy and that, like, I'm down a lot. Like, this last weekend, just when me nephews played in the semi‑final football, usually I will be kicking a ball around with them and stuff, but I can't do that. That makes me a bit upset, you know, stuff like that; little stuff that I can't do anymore that I would like to do." (T 37)
In addition, he had trouble remembering things. He needed constant reminders from his sisters and was concerned about his ability to cook for himself in such circumstances.
As to his pre-accident mental wellbeing, the plaintiff acknowledged that he had been prescribed a drug called Pristiq prior to the accident, but said that he had never filled the prescription and never taken an antidepressant drug in his life (T 24). By comparison, he is now dependent upon strong pain medication such as Endep, uses a walking stick when not at home, and is rarely pain-free.
As to homecare, the plaintiff told the court that, prior to the accident, he performed his own housework when he lived alone and that, apart from a four month period when he lived with his sister (February - July 2011), when he formed part of a household, he did all his own housework without assistance. He still "can't do anything around his house because of pain" (plaintiff's written submissions, paragraph 4).
The plaintiff's lengthy and complicated recovery from his injuries is a significant issue in relation to past economic loss and past home care, and a number of admissions were made in relation to these issues on behalf of the defendant. The principal issue of contention was the degree to which these problems were now present, and whether future claims for economic loss and home care should be assessed upon the same basis.

[6]

The plaintiff's prior work history

The evidence in relation to the plaintiff's employment history consists of: 1. The plaintiff's evidence as to his working history and that of his sisters, which is that he was consistently in employment. 2. A statement to Corrections Health Service (Exhibit 1, p. 38) that his occupation while he was living in Dubbo was "farm manager". Certain of the plaintiff's tax returns for the period 2001 to 2012 have also been tendered (Exhibit 3). 3. Information about the plaintiff's payment for the six months in 2010 that he was in prison. 4. Payslips for the period from mid-February 2011 to 27 June 2011 and from October 2011 to November 2011 (Exhibit D). For the first of these periods at Sea-Air (20 weeks), the plaintiff's net earnings were $22,540, less $7884.25 tax, plus $2,003 superannuation (which Mr O'Keefe notes in his written submissions is a weekly average of $1127). For the plaintiff's second period of employment at Complete Air Conditioning (12 October 2011 to 23 November 2011), his pay varied between $ and $1157.70 net per week up until 9 November 2011 (a further payment on 23 November 2011 is made after the accident but appears to include other items). For the intervening periods in 2011 (January to mid-February and27 June to October 2011) the plaintiff was unemployed. 5. The evidence of Mr Kohlenberg, who worked for the same employer as the plaintiff for the period mid-February 2011 to 27 June 2011.
The plaintiff's work history may be very generally summarised as follows: 1. From the time the plaintiff left school until approximately 2005, he was working in the country in rural occupations. He received income of $62,400 for farm work in 2001 and a similar salary for similar work in 2002. He could not recall if he filed any tax returns for 2003, 2004, 2007 or 2008. His tax returns from 2001 onwards have been prepared by an accountant in 2013 (T 88) after he suffered the accident the subject of these proceedings (T 119). 2. He was unemployed during the 2005 financial year and received "Government allowances" of $12,806 for this period. 3. In about 2005 to 2006 he came to Sydney but no tax returns are available for 2006 or 2007. He agreed in cross-examination that he could have been unemployed for parts of the time during these years. 4. In 2008, he earned $47,879 as an air conditioning installation technician. He earned slightly more in 2009, and again in 2010 ($50,612). He was an independent contractor at this time, and made a tax deduction claim for car expenses, although for most of his working life (including this period of time) he had been disqualified from driving by reason of drink-driving convictions. 5. His earning capacity was disrupted in the last six months of 2010 due to his imprisonment for six months. His taxable income of $33,339 for the financial year before the accident included payments from Newstart for the period 20 December 2010 (the date of his release from gaol) to 25 February 2011. 6. He returned to work, for Sea-air, in mid-February 2011, but ceased employment there on 27 June 2011, when they could not offer full time work, according to evidence of Mr Kohlenberg. He was then unemployed until 12 October 2011. It was about five weeks after he was employed by Complete Air Conditioning that he was injured. I also note that he was paid a lump sum by Complete Air Conditioning after the accident which appears unrelated to his weekly earnings.
In cross-examination, the plaintiff acknowledged that he had not been continuously employed in the five years before the accident: "Q. You've had long periods of unemployment haven't you prior to the motor vehicle accident? A. No, I was constantly employed for the five years prior, prior to the accident, maybe a couple of short terms unemployment. Q. What do you call a short term period of unemployment Mr Smith? A. Well I was at Gaff Air for three years, I was, maybe without a job in between there, in between jobs there for maybe three to six months, like I'm only guessing, I can't remember exact days, but over the last five years before prior to the accident I was, I would have been unemployed maybe six months out of that or it could be a bit longer, I'm not 100% sure, yeah. Q. Do you accept that you weren't in continuous employment in the five years before the accident? A. Yeah." (T 86)
The plaintiff's employer is noted in his 2001 and 2002 returns as Mr Percy, the owner of a cotton farm. There is no reference to air conditioning work (Exhibit 3). He agreed he only received Newstart for the 2005 financial year and could not explain why there were no tax returns prepared for 2003 and 2004, or for 2006 and 2007: "Q. Are you able to offer any explanation why your lawyers didn't provide the insurance company with any tax returns for 2006 or 2007? A. Maybe I haven't done them. I'm not sure. Q. Is it possible that in 2006 and 2007 you were also unemployed? A. After Graham Percy lost his cotton farm the bloke I was working for and there was a period there, there was a drought and there was a time there the work was quiet in the country yeah. It could've been. There was times where they would work for maybe half of the year and it was patchy through that time, so yeah." (T 122)
The plaintiff's income tax return for 2008 (which he agreed was not prepared until 2012, and in fact gave his 2012 Campbelltown address: T 122,124 - 5) identifies him as an air conditioner installer with a taxable income of $47,879 (T 123), and refers to deductions for motor vehicle expenses, although the plaintiff was a disqualified driver. The plaintiff said that his "girlfriend" drove him and denied driving while disqualified (T 124).
In 2010 the plaintiff's employment was as follows: "Q. In 2010 if you could go to page 47, do you have page 47? A. Yeah. Q. You see there it says you worked for Westgate Irrigation and earned $2,286? A. Yeah. Q. Do you know what that was for? A. Yep. Q. What was that work? A. I was irrigating. Q. I take it, was that done in Sydney? A. No. Q. Where was that work? A. My dad was sick at the time and I needed three weeks off so I done some work while I was down there in Hillston. Q. Whereabouts? A. Hillston. Q. Do you see the next entry down,"$5,224 Australian Government allowances"? A. Yep. Q. Do you accept that you were receiving unemployment benefits for a period of time? A. Yep. Q. Are you able to say for how many weeks you were unemployed? A. No, I'm not 100% sure, I can't ‑ I'm not sure. Q. Could it have been as long as four or five months? A. Yep. Q. Then do you see on the next number down "$43,102"? A. Yep. Q. That was income that you earned in your business with Mark, is that right? A. Yep. Q. As a subcontractor? A. Yep. Q. Your earnings in that year were $50,612 before tax, do you agree? A. Yep." (T 124 - 5)
I deduce from the above that the plaintiff's employment in air conditioning installation was following a pattern, over these years, of being work for only part of the time. For other periods he was either unemployed or, on occasion, doing labouring work for a few weeks. This is not a pattern of regular employment in this industry over his adult life as claimed.
The plaintiff's fellow employee, Mr Kohlenberg, who worked with the plaintiff for the period February to June 2011, gave evidence that the plaintiff was a hard and reliable worker, who left that place of employment only because he could not be offered full time permanent work. I accept that evidence. The plaintiff was physically fit and capable of hard work. His problem is that, at regular intervals, he had problems arising from his drinking which resulted in criminal charges and this was disrupting his working life on an increasingly frequent basis as he grew older, in part because the penalties imposed included first lengthy driving disqualifications and then two periods of imprisonment.
Although the plaintiff claimed in examination in chief he did not drink in the same pattern as he had before he went to jail in 2010, the clinical records from jail assessments in 2010 and 2011 (Exhibit 1) demonstrate to the contrary. As I note in my discussion of Dr Westmore's report, these records show that the plaintiff was admitted to Emergency as a result of a suicide attempt, that he complained of depression and was assessed as unfit for work by Centrelink and that doctors were concerned about the amount of alcohol he was drinking as well as by his failure to take medication for cholesterol problems.
The next basis for challenge of the plaintiff's evidence is the nature and extent of his criminal record. Mr McCarthy submitted (written submissions, paragraph 11) that the plaintiff's criminal record was not serious, that there were what he called "no gotcha denials" of the plaintiff's criminal record and that these offences were irrelevant to his work capacity.
Mr O'Keefe submitted that the plaintiff's criminal conduct is greater than admitted and that this, and the alcohol-related problems which generated it, put him at inevitable risk of "significant and disabling injury or arrest and conviction for offences that would have resulted in terms of imprisonment" (written submissions, paragraphs 40-41).

[8]

(a) Offences from 1987 to 1994

The plaintiff, as a young man, committed offences of peripheral relevance at best. However, these offences include two mid-range PCAs (in 1991 and 1992) and offences of violence in which the plaintiff acknowledged alcohol was involved.
One of these was of some substance. On 27 December 1993, the plaintiff was charged with attempted murder, although a plea of guilty was later accepted for the alternate charge of "use offensive weapon with intent to commit indictable offence". The plaintiff was sentenced to 400 hours community service. I accept the plaintiff's explanation that he was charged overzealously and that the latter offence is a more realistic description of these events: "Q. Yes, did you drive your car at somebody? A. Yeah, well that's what they said. There was a fight going in with my brother‑in‑law and that down the bottom corner, we lived in Dunedoo, a country town, and so I've jumped in the ute and drove down towards them but I wasn't driving the vehicle at anybody. The same police officer in that town, because the population was 800 people, and I think four people got charged with attempted murder within six months." Q. Is this the same brother‑in‑law as before? A. No. Q. It's the other brother‑in‑law, is it? A. Yes." (T 73).
The "other brother-in-law" referred to is his sister Rebecca's husband. Although I inquired, when the plaintiff's other sister Tammy gave evidence, if this brother-in-law was her partner, she denied this. I assume it must have been a brother of the plaintiff's partner at the time.
The circumstances in which the plaintiff "jumped in the ute" are relevant. The plaintiff was convicted on 7 November 1992 and 8 August 1993 of driving while disqualified and the disqualification period was extended on 10 August 1993 to two years from 25 November 1993.
The plaintiff was also convicted of stealing and of possessing and administering a prohibited drug. The plaintiff explained that his mother had just died (T 75) and this would have been a time of family turmoil. I regard these offences as irrelevant.

[10]

The plaintiff was convicted of a third PCA offence in 2001, as well as conviction for driving while the plaintiff's licence was suspended. He was disqualified for a period of 12 months but was convicted again on 26 March 2002, with a result that his disqualification period was extended to 13 June 2005.
Between 2003 and 2005, the plaintiff was convicted of contravening an apprehended violence order (resulting in a s 12 bond for 9 months), as well as driving while disqualified, which resulted in his period of disqualification being extended to 13 June 2007. The plaintiff explained: "Q. It is the case that you were the subject of an apprehended violence order by your former partner, this is the mother of your children? A. Yeah, it may have been yeah, I'm not‑‑ Q. You breached that order is that right? A. Not that I'm aware of, no. Q. According to this you contravened an apprehended domestic violence order, so an order must have been made which you then contravened, does that bring it back? A. No, it doesn't sorry, but, yeah, obviously it happened but, I certainly never put a hand on my, I certainly didn't assault my ex‑wife, yeah there's a lot of it, I watched me mother get, have domestic violence against her all her life and I'll actually step in if I see a man hurting a woman, so, I've never put a hand on her and I know it might have been, there might have been raised voices and spitting up, but it wasn't, no violence involved against a woman. Q. This is a nine month suspended sentence, that's not something you give a, that a magistrate gives for angry words? A. Yeah. Q. You've got no recollection of these events? A. No. I can chase a phone number down if youse want to speak to her or any of the past girlfriends I've had." (T 79)
I note the plaintiff's explanation for the charge of assaulting police came when a police officer intervened in a discussion the plaintiff was having with his girlfriend, where he had put his hands on either side of the wall against which the girlfriend was standing. Although the plaintiff clearly had good intentions as a result of his early life experiences, it would appear that when he had been drinking, he was not able to control his conduct towards family members, as this is one of several examples.
On 7 February 2005 he was charged with the offence of driving with high-range PCA resulting in a community service order for 250 hours.
The plaintiff was charged with other assaults, but could not recall the events in question: "Q. Do you remember being charged about a year later, on 7 February 2004 at Camden, for assault occasioning actual bodily harm? A. What date, sorry? Q. February 2004, in Camden? A. Yep. Q. What happened there? A. I said yes, because it's there in front of you. I don't remember. Q. You can't remember? A. No. Q. You didn't seem to have any trouble remembering the earlier drink driving events? A. Yeah. There's a lot of assault charges on my record, I can't‑‑ Q. Why is it that some of these ones that are later seem to be causing you difficulty in terms of remembering? A. I can't answer that, I'm sorry. Q. Could it be you just don't wish to tell the Court? A. No, not at all. I've got nothing to hide."
The plaintiff agreed he continued to drive while disqualified over this period: "Q. Do you remember a year later, in February 2005, out at Narromine, or Burke, you were using an unregistered vehicle and driving while disqualified? A. Yep. Q. Again in February 2005, you're now over 30, aren't you, you're 32? A. Yes. Q. Six years before the motor accident where you broke your leg? A. Yeah. Q. You're still driving while disqualified? A. Yep. Q. You were happy to drive an uninsured motor vehicle? You have to answer yes or no? A. Yeah, I said yes." (T 80)

[11]

(d) Criminal record from 2005 onwards

At about the time the plaintiff came to Sydney, for the period from February 2005 to March 2008, there is a gap in his criminal record. In March 2008, he was charged on two occasions with common assault (although one of these charges was dismissed and no evidence proffered).
On the occasion of the second of these assault charges, he also pleaded guilty to a charge of possess prohibited drug and drive with middle-range PCA. He was sentenced to 3 months imprisonment and lodged a severity appeal.
According to the Criminal History entry of 19 November 2009, the conviction was confirmed and his sentence commenced on 21 June 2010 to conclude on 20 September 2010. He was disqualified for a further 3 years commencing 18 November 2009 and concluding on 17 November 2012.
Unfortunately, the plaintiff continued to have difficulties, in that he was charged on 13 January 2010 with fraudulent misappropriation in relation to the sum of $2,000 and driving while suspended. He appealed these offences and there was some moderation in the sentence, but the disqualification period was extended from 18 November 2012 to 17 November 2014.
On 3 March 2012, a date after the plaintiff's accident, the plaintiff was charged with offences arising from the circumstances in which he said he threw some cold chips at a taxi driver and refused to pay the taxi fare. The criminal record shows that he was charged with assault; he appears to have refused to pay the taxi fare. He was sentenced to imprisonment for 3 months commencing 20 October 2012 and concluding 19 January 2013.
Since 2012 the plaintiff has not committed any criminal offences.
Mr McCarthy submitted that a criminal record of this kind was not one that would concern the court, as far worse criminal records were seen in this court's criminal jurisdiction. Mr O'Keefe describes the plaintiff's criminal record as "significant" (written submissions, paragraph 29) and one which should be taken into account when determining the percentage of vicissitudes.

[13]

The plaintiff's pre-accident medical problems

The documents contained in Exhibit 1 show that the plaintiff had not only a longstanding and ongoing dependence upon alcohol which had begun to impact upon him physically but had developed a depressive anxiety condition which was diagnosed in about January 2010. This condition was ongoing and remained untreated at the date of the accident, in part because the plaintiff refused or failed to take medication prescribed. The plaintiff said (at T 116-117): "Q. Sir, you had no intention of changing your drinking habits at all prior to your motor vehicle accident, did you? A. I had intentions. I was trying. Q. How is it that you can sit there on your oath and say you were trying when you didn't even take the Campral medication that had been prescribed for you? A. Yeah, I understand that, yep. Q. It doesn't sound like you were trying particularly hard, does it? A. No. Q. It doesn't sound like you were trying at all, does it? A. It doesn't look that way."
This included an admission to hospital in January 2010 in relation to suicide ideation where he left a suicide note (Exhibit 1, p 52). In February 2010 psychologist Jan Roberts prepared a report for the plaintiff's general practitioner following a referral to her for psychological counselling, describing his condition as one of "depression and anxiety", saying: "Mr Smith lost his driver's licence in November 2009 for driving under the influence of alcohol. He lost his licence three times in three years when he was 20 and twice in the last 18 years. He says he has been a heavy drinker from his youth. He says he wants to see a psychiatrist to obtain medication to help him stop drinking. He also admitted it was unlikely he would ever be able to stop drinking, given his long history. Mr Smith has his own air-conditioning installation business but without a driver's licence he cannot work and faces losing his business. Mr Smith was depressed about his prospects in court. He believes he will lose his driver's licence for 8 years and may go to gaol… He sees his future as lost without his driver's licence… Mr Smith seemed well aware of his poor prospects in finding employment without a driver's licence. Mr Smith also seemed aware that he was not likely to give up drinking…" (Exhibit 1, p. 61).
In June 2010 the plaintiff described a suicide attempt to the prison authorities that followed a fight with his "wife", but the date of this is uncertain (Exhibit 1, p. 78). The plaintiff's doctor notes a diagnosis of the plaintiff as still having "depressive anxiety disorder" on 27 July 2011 (Exhibit 1, p. 1).

[14]

Assessing the evidence of the plaintiff

Counsel for both parties paint starkly different pictures, in their submissions, as to the plaintiff's work history, lifestyle and health prior to the accident. Mr McCarthy submits that the defendant's submissions completely distort the plaintiff's evidence by overemphasising the plaintiff's asserted alcohol problems and criminal record, adding, in his oral submissions, that his client considered that he had been unfairly treated in this regard, in that he should be regarded a witness of credit who honestly admitted to having problems with alcohol and alcohol-related criminal offences, which he considers have now been taken out of proportion.
The correct approach for a first instance judge to take when determining issues of credit of a plaintiff in personal injury proceedings has been the subject of a series of observations by the New South Wales Court of Appeal. First of all, the trial judge must engage with the cases presented by each party, as opposed to merely stating that there is no evidence, or not setting out the evidence. Secondly, the trial judge must look at all of the evidence, rather than dismiss it on the basis of preferring the opponent's case.
In The Nominal Defendant v Kostic [2007] NSWCA 14 the New South Wales Court of Appeal allowed an appeal from an assessment of damages because of the inadequacy of the approach of the trial judge to the determination of the disputed issues of fact. The evidence before the trial judge consisted of seven days of trial evidence and "very many" (at [81]) medical reports. It is worth noting that the manner in which those medical reports had been put together by the plaintiff for the Court of Appeal was so inadequate that the plaintiff was ordered to bear the costs of putting this material together, from which I infer that the trial judge was similarly disadvantaged, but this was not referred to as an extenuating circumstance.
I also note that, while the Court of Appeal was critical of the way in which the trial judge had approached the analysis of these very many medical reports and the seven days of oral evidence, the Court of Appeal did not suggest that the trial judge disregarded the parties' submissions on the topics the subject of the disputed evidence, from which I infer that the generalised method of analysis used by the trial judge must have followed similarly generalised submissions of the parties.
I raised these issues with Mr McCarthy because the circumstances of this case - an assessment of damages following a motor vehicle accident where the factual issues are the subject of extensive evidence - are very similar to The Nominal Defendant v Kostic. It is essential that I deal with these issues in the manner in which the Court of Appeal has directed trial judges to adopt, namely a careful and objective analysis of the contemporaneous documents as well as the oral evidence, rather than accept submissions that there is "no evidence" or dismiss the defendant's submissions based on that contemporaneous evidence as irrelevant and instead accept the plaintiff as a witness of credit.
While the plaintiff is certainly entitled to make submissions that there is no evidence, or that to pay attention to the defendant's submissions is to place too much emphasis on irrelevancies, or that the defendant's claims are unfair, I must still approach the factual issues by dealing with the submissions made by both parties and, in particular, in light of contemporaneous material such as hospital, medical and parole records for the plaintiff. This means I must engage with the defendant's submissions, especially Mr O'Keefe's careful written submissions, by analysing them and not simply dismiss them.
As to the importance of analysis of submissions, the absence of reference to the submissions of counsel in The Nominal Defendant v Kostic is compelling when compared to Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [118] - [123], where the relevant extracts from counsels' submissions are set out in detail and were matters clearly put to the trial judge. In Mitchell v Cullingral Pty Ltd, the Court explained the trial judge's duty as follows: "A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]."
I am nevertheless conscious that the impact of the plaintiff's alcohol intake and criminal record must be treated with caution. The real question is the plaintiff's work capacity, as the Court of Appeal pointed out in Mahony v Watson [2003] NSWCA 259 at [53], rejecting a finding of failure to mitigate in relation to a plaintiff who had high-range PCA convictions both before and after the compensable accident which had resulted in loss of his licence, and continued to drink alcohol while taking strong pain medication (at [44]).
The material tendered by the defendant not only relates to the plaintiff's criminal record but also contains information about other relevant issues such as his literacy and his drinking habits. The plaintiff's injuries and disabilities must be viewed in the context of these records, in part because these are records of what he said and did which were prepared by appropriately qualified observers and in part because of the effluxion of time.
The defendant, in making submissions that I should approach the fact-finding task in this manner, referred me to King v Western Sydney Local Health Network [2011] NSWSC 1025 at [16] to [19].
Taken as a whole, the evidence I have set out above demonstrates that the plaintiff has overstated his working history while minimising his alcohol intake, criminal record and pre-accident depression problems. I accept that some of this may be due to the events in question having happened long ago, or the distress of his accident and injury, or to the difficulties of the court process. However, I cannot accept the plaintiff as a reliable historian or a witness of credit where he has consistently minimised evidence which would reduce his claim for damages.
Accordingly, where there is conflict between the plaintiff's evidence and the matters set out in contemporaneous records, I propose to prefer those contemporaneous records as being. The same is the case in relation to the evidence of the plaintiff's sisters who, while doing their best to give their evidence honestly, have given evidence which is factually inconsistent with those contemporaneous records and also with the medical and occupational therapy assessments (as is set out in more detail below).
Taking those contemporaneous records into account, I am satisfied that the plaintiff has had a longstanding dependence upon alcohol which has directly contributed to his pattern of criminal behaviour, and that both of these factors have played an important role in relation to the depressive anxiety condition which he was diagnosed as suffering from in January 2010. While he did attend a drug and alcohol counsellor on 20 October 2011, rather than pursue the advice or treatment offered to him over a long period (see Exhibit 1, pp 4 and 120), he continued to consume alcohol. Alcohol also played a part in the accident the subject of these proceedings, in circumstances where there is an agreement that his contributory negligence was 60%.
This history is relevant the plaintiff's physical and mental capacity for work, which must be taken into account as to vicissitudes. If the plaintiff's lifestyle had continued in this way, there would not only be the risk of some other significantly disabling injury of the kind the subject of these proceedings, but also of arrest or conviction for periods of imprisonment which would have severely impacted on his future employability. The plaintiff himself was aware of the poor prospects he had of finding employment without a driver's licence and of the difficulty he would have giving up drinking, and said as much to the psychologist Jan Roberts (Exhibit 1, p 61).
Nevertheless, the plaintiff's injuries were not only serious but were substantially complicated by the lengthy period of convalescence caused by the failure of the fracture to unite and a series of infections. I now set out the medical evidence in relation to the plaintiff's injuries and ongoing disabilities.

[15]

The plaintiff's injuries and disabilities

The plaintiff's injuries and disabilities are set out in the statement of particulars filed in these proceedings filed on 24 January 2014. these have been summarised by counsel for the plaintiff in paragraph 7 of his written submissions as follows: 1. Comminuted compound fracture of the left tibia and fibula (Dr Endrey-Walder, Exhibit B 1.1-2 and Exhibit B 2.1); 2. "Potentially catastrophic injury to the occipital condyle which resulted in pontile bleeding" (Dr Endrey-Walder, Exhibit B 1.1-7); 3. Back pain due to "abnormal ambulation" (Dr Endrey-Walder, Exhibit B 1.1-7); 4. Significant wasting of the quadriceps muscle (Dr Endrey-Walder, Exhibit B 1.3-5); 5. Marked patello-femoral arthritis (Dr Endrey-Walder, Exhibit B 1.3-5); 6. Significant reduction of range of movement of left ankle (Dr Endrey-Walder, Exhibit B 1.3-5); 7. Possible facet joint inflammation of the lumbar area secondary to reliance on crutches/walking stick/limping (Dr Endrey-Walder, Exhibit B 1.3-5); 8. Injured nerves and tendons as well as skin grafting (Dr Barold, Exhibit B 1.4-2); 9. Closed head injury with loss of consciousness (Dr Barold, Exhibit B 1.4-8); 10. Mechanical strain injury to the neck and lumbar spine (Dr Barold, Exhibit B 1.4-8); 11. Injury to left knee and ankle (Dr Barold, Exhibit B 1.4-8); 12. Post traumatic degenerative change in left knee and ankle (Dr Barold, Exhibit B 1.4-9); 13. Secondary straining to lumbar spine due to altered gait (Dr Barold, Exhibit B 1.4-9); 14. Unsightly scarring (Dr Barold, Exhibit B 1.4-12) and see also Exhibit E; 15. Memory difficulties "probably multi-determined in their aetiology" (Dr Westmore, Exhibit B 1.7-6); 16. Adjustment disorder with predominantly depressed mood (Dr Westmore, Exhibit B 1.7-6); 17. Significant antalgic gait with external rotation of the left leg with walking (Dr Walker, Exhibit B 2.17-1); 18. Whiplash injury to the cervical spine (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2); 19. Musculoskeletal injuries to thoracic and lumbar spine (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2); 20. Headaches (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2); 21. Successive infections in the course of his fracture healing (Dr Chin, Exhibit B 2.26-1).
Some of the items referred to in the statement of particulars are not referred to in this list. I particularly note the following: 1. Osteomyelitis and associated MRSA infection; 2. Paraesthesia in left foot; 3. Constant pain even when at rest and related claims (including inability to undertake "many domestic tasks without excess pain or at all"); 4. Difficulty sleeping; 5. A range of anxiety and depression related problems including interference with sexual relations, reduced enjoyment of usual social relationships, intrusive and traumatic thoughts and dreams regarding the accident; and 6. Necessity to take medication.
I have paid close attention to the list provided by counsel for the plaintiff and I have also factored in the list of injuries and disabilities in the statement of particulars where appropriate. I have paid particular regard to the reports of Dr Walker.
The defendant lists the plaintiff's current disabilities as being the following: 1. A left occipital condyle fracture clinically united; 2. Left tibia and fibula fracture complicated by non-union and local infection now resolved; 3. Disuse atrophy of the muscles of the left leg; and 4. Traumatic brain injury of mild degree (now recovered).
It is not in dispute that the plaintiff suffered significant injuries, the seriousness of which was compounded by the lengthy period of time over which the plaintiff required treatment. After the plaintiff's final surgery, his fracture line was still "healing", according to Dr Walker (Exhibit B, tab 2). While the parties were not able to agree upon the nature and extent of the plaintiff's disabilities other than the plaintiff's leg injury, the other medical issues in dispute are essentially whether the plaintiff has sustained a permanent injury to his back as a consequence of altered gait and neck, ankle and left knee problems as well as the plaintiff's head injury and asserted related memory loss.
Counsel for the plaintiff submits, and I accept, that there was a period of three years from the date of the accident during which time the plaintiff could not walk independently and was either in a wheelchair, on crutches or requiring the use of a crutch. I accept that he was in severe pain for the whole of this period.
The plaintiff's surgery history may be summarised as follows: 1. 17 to 28 November 2011: Following the accident, the plaintiff underwent surgery on 17 November 2011 by Dr Chin and was discharged from Liverpool Hospital in a wheelchair. 2. 29 June 2012: The plaintiff underwent an exchange of the left tibial nail and iliac crest bone graft. Broken screws were removed from the pre-existing excisions in the course of this surgery. 3. 17 July to 27 August 2012: The plaintiff was admitted to Liverpool Hospital for further surgery by Dr Chin. This was complicated by an infection requiring intravenous antibiotics on during August and September 2012. 4. 8 February 2013: The plaintiff was admitted to Liverpool Hospital for further surgery, being the removal of the eye nail. He underwent a left tibial osteotomy and insertion of a TSF frame. He was referred to Dr Walker, his treating orthopaedic doctor but his previous treating surgeon, Dr Chin, in February 2013 because of the infection and the failure of the fracture to unite. 5. 2 June to 2 July 2013: The plaintiff was admitted to Liverpool Hospital for surgery under Dr Walker on 6 June, which consisted of removal of the intramedullary rod left tibia, a tibial ostectomy, insertion of antibiotic cemented beads and application of external fixation to the left tibia (see Dr Walker's report of 30 April 2015 in Exhibit B). During this time he was also examined by Dr Ng, an infectious diseases consultant. 6. 2 August 2013: The plaintiff was admitted again to Liverpool Hospital in relation to problems with non-union of his left tibia. 7. 22 August 2013: The plaintiff underwent bone grafting (posterior iliac crest) at Liverpool Hospital under Dr Walker. This included adjustment of the external fixation. He attended Dr Walker's rooms to have the sutures removed on 13 September 2013 and was advised that he would have to remain in the external fixation frame for at least another six months; 8. 6 March 2014: The plaintiff's frame was removed and the plaintiff was placed in a CAM boot. On 11 April 2014, after review by Dr Walker, the plaintiff was advised that further surgery would be required, as a CT scan confirmed that a fracture was still not yet united. He was also suffering from a staph infection, one of several infections he had during his treatment. 9. 3 July 2014: The plaintiff underwent further surgery in Liverpool Hospital where a plate was fixed to the left tibia and a bone graft was placed on the posterior iliac crest. The plaintiff was discharged on 8 July 2014.
According to Dr Walker's two letters of 23 August 2016, this 2014 surgery was the end of the plaintiff's surgical treatment. I note, however, that Mr McCarthy's submissions identify 10 April 2015 as the last of his multiple surgeries (written submissions, paragraph 59). I accept Mr McCarthy's statement that the plaintiff's fracture line was still healing after the surgery of 3 July 2014, but there is no evidence that he underwent further surgery on 10 April 2015.
The periods of time during which the plaintiff was in hospital were as follows: 1. 17 - 28 November 2011. 2. 28 June - 27 August 2012. 3. 8 February 2013 and following. 4. 2 June 2013 - 2 July 2013. 5. 2 August and again for one week later in August 2013. 6. 2 - 8 July 2014.
These periods are of relevance to the claim for past home care, as no allowance should be made for this while the plaintiff is in hospital: Hill v Forrester (2010) 79 NSWLR 470.

[16]

The plaintiff's medical evidence

The extensive amount of surgery that the plaintiff underwent has resulted in a large number of medical records and reports being tendered, although many of these were not referred to. This is a not uncommon situation in personal injury proceedings, as the New South Wales Court of Appeal has noted in many of its judgments (see, for example, Mahony v Watson at [18]).
Treating doctors' reports differ from medico-legal reports in that they are prepared for the benefit of other medical specialists and may be written informally or even hurriedly, or in circumstances of emergency, or on the assumption that the recipient has an understanding of medical issues not referred to in the report but which are necessary in order to interpret the report's contents. The correct method of analysis of the reports of treating doctors (and the differing approach where the report is a medico-legal report) was explained by the Court of Appeal in Patrech v State of New South Wales [2009] NSWCA 118 as follows: "[88] In my opinion, the above analysis demonstrates that the "consistent picture" that his Honour concluded emerged from the medical reports, that the 2001 court case (and no earlier incident or experience) caused the breakdown in the appellant's health, is not supported by the medical evidence. It is apparent that in reaching his conclusion his Honour failed to have regard to the purposes for which the particular reports were prepared. The purposes of the reports were various. Apart from the report of Mr Bayliss dated 13 April 2006, which was in response to a request for a report from the appellant's solicitors, none of these medical practitioners provided medical reports for the purposes of the appellant's negligence proceedings against the police service. There were also reports between the referring doctor and the treating specialist. Other reports were to the police services' Health and Workplace Services and to the Workers Compensation Section for the purpose of assessing the appellant's condition for discharge. Again, others were to State Super, to determine the appellant's superannuation status. [89] A trial judge is required to analyse the evidence. That analysis can only be properly undertaken if the evidence, in this case the medical evidence, is considered in its proper context. The trial judge's assessment of the medical evidence may have been unassailable had the medical reports been medico-legal reports, including medico-legal reports of treating doctors, prepared for the purposes of trial or prepared for the purposes of similar or associated proceedings, such as workers' compensation proceedings.
While treating doctors are treating the injury, medico-legal reports are focussed upon court proceedings, which may result in the medical practitioner going beyond the medical issues and expressing views which are, for example, irrelevant to the issues or outside their area of expertise. In Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264, injuries considered comparatively minor by treating doctors were viewed as more serious in certain medico-legal reports which dealt with issues going beyond objective assessment (at [76]), many of which were accordingly given no weight.

[17]

The evidence of Dr Walker

Dr Walker, the orthopaedic surgeon who took over the plaintiff's case in February 2013 from Dr Chin because of ongoing problems with his tibia, provided both treating and medico-legal reports summarising the plaintiff's treatment from that time onwards.
In his letter of 15 February 2013 to Dr Ray Chin (who sent the plaintiff to him for a second opinion) he set out the circumstances of the accident and his treatment, noting that his healing was complicated by an infection requiring intravenous antibiotics, and went on to say: "His ongoing symptoms include anterior knee pain as well as pain in the tibia with weight bearing. He does also have a background constant pain in the leg. He has had no recent episodes of erythema or discharge to suggest ongoing infection. On examination today his previous wounds are well healed. There is clinical evidence of infection. He is tender at the fracture site as well as over his fibula fracture site. He is neurovascularly intact. His overall alignment is satisfactory. His recent plain radiographs show evidence of a previous segmental tibial fracture. The overall alignment is excellent. There is an intramedullary nail in place with no evidence of hardware failure. The fibula has not united and the distal tibial fracture has not united. There is minimal callus around the tibial site suggesting an atrophic non union. Jeffrey has a non union of his distal tibia. It does not appear to be infected. His fibula has also not united. Given the timeframe and the appearance of his e-rays I doubt his tibia will heal with further time. No doubt it is reasonable for some of his symptoms. The weight bearing pain he has in the tibia is most likely coming from his non union. His anterior knee pain may be associated with his intramedullary nail." (Exhibit B)
Dr Walker went on to describe the surgery alternatives; his next three reports (Exhibit B) set out briefly what occurred.
In his letter of 2 December 2013 to the solicitors for "Cbus Claims Services", Dr Walker provides a summary of these reports, adding: "He remains in his external fixator and he is weight bearing as tolerated. On his latest review his tibial fracture had not united and there were only early signs of union. He remains in his external fixator for an indefinite period of time. He is weight bearing as tolerated in the frame… With regards to his treatment it is outlined above. As noted he remains in an external fixator and is unable to work at this point in time. He has ongoing pain in the left tibia as well as pain in the ankle and knee. He has a degree of stiffness in his ankle and knee. His ability to mobilise is significantly hampered by the fact that he has an external fixator on. This external fixator has been on for six months. The external fixator makes it difficult for him to mobilise. He would not be able to currently work as an air conditioner installer while he has an external fixator in place…. While he is in the frame he is obviously significantly hampered with regards to his ability to work and overall mobility. When the frame is removed and the tibial fracture has united I suspect he will still have difficulties working as an air conditioner installer. He is likely to have ongoing pain in his tibia to some degree with stiffness in his knee and ankle. Working on building sites and uneven surfaces will be difficult. Working up ladders and in confined spaces will also be difficult. I suspect kneeling will prove very difficult if not impossible for him. With regard to complicating factors: his two complicating factors have been infection and failure of the fracture to heal. These two complications have prolonged his treatment and prevented any return to work. The fact the fracture in not united is the current complicating factor that is prolonging his treatment. When his fracture has eventually united the limitations placed on him will be largely depending [sic] on his symptoms. Patients who have had a prolonged period of time treatment [sic] often have difficulties with standing and walking for long periods. They also have difficulties lifting heavy objects. As outlined above kneeling is likely to be difficult for him. … His short and long term prognosis is guarded given the fact that his fracture has not united. In the worst case scenario if his fracture were never to united he would be looking at a possible amputation. I suspect it will be difficult for Mr Smith to ever return to work as an air conditioner installer. His treatment has been prolonged in terms of his tibial fracture and this lengthy period of time will make it difficult to return to previous activities. In particular he will have difficulty with lifting items that are heavier than 10 - 20 kgs. He will have difficulty on uneven surfaces at building sites. I suspect he will have difficulty in confined spaces and kneeling as well as climbing ladders. Given his other previous jobs including sheet metal working, welding and maintenance worker I suspect he will struggle with most of these labour intensive jobs. His most likely forms of employment in the future will be non labour intensive jobs including roles in a supervisory role [sic] and desk type jobs" (Exhibit B)
Unfortunately for the plaintiff, his fracture did not unite. On 6 July 2014, Dr Walker wrote to the plaintiff's general practitioner advising that surgery, as opposed to conservative treatment, was therefore necessary.
In his report dated 30 April 2015, Dr Walker notes that following this surgery, the plaintiff's fracture "is healing and should continue to heal". His ongoing symptoms included significant back pain and pain in his left leg with stiffness in his ankle and subtalar joint. He was able to weight-bear but used a walking stick 60% of the time. Dr Walker went on to note that the plaintiff's level of permanent disability would not be able to be assessed until his fracture had united, which would be between 12 to 18 months following his last operation in 2014. He did not require any further medical treatment but "improvement with time" and accordingly there were no referrals or medical treatment at that stage.
In his most recent report of 23 August 2016, Dr Walker notes that it had been 12 months since he had last reviewed the plaintiff. He did not see what he called "any dramatic improvement" in his symptoms, and that the plaintiff still had significant ongoing back, left knee, left tibial and left ankle pain, using a crutch for most activities outside the house, adding: "I have reviewed his knee, ankle and subtalar joint range of motion. His left knee has patellofemoral crepitus with a range of motion from 0 to 110 degrees. His left ankle is stiff with dorsiflexion to 5 degrees and plantarflexion to 20 degrees. His left subtalar joint has 0 degrees of eversion and 10 degrees of inversion. His left calf is 1 cm smaller than his right calf musculature. These equate to mild patellofemoral pain, mild ankle stiffness and mild hindfoot stiffness. He walks with a significant antalgic gait with external rotation of the left leg with walking. He uses a Canadian crutch most of the time in his right arm. His ongoing back, knee, tibia and ankle pain are directly related to his initially tibial fracture and the lengthy time required to get his tibia to unite. He had long period of relative immobilisation of the ankle (often in a boot or external fixature) and prolonged period on crutches and non weight bearing. These have contributed to knee, ankle and hindfoot pain and stiffness as well as ongoing back problems. He has not improved in the last twelve months and is unlikely to ever improve significantly. This is with regards to pain and function, including his gait. He will not return to his pre injury duties. He will not return to any meaningful manual type work. He will have difficulties negotiating uneven work sites, eg building sites. He will not be able to lift confidently and routinely any significant weight. His only real work prospects are likely to be desk type jobs for which he has limited education and training. Given significant ongoing pain issues, I suspect even these duties would be difficult on any long term basis. I do not see any real prospects of him returning to the work force."
While other doctors expressed views (many in medico-legal reports) as to the plaintiff's injuries and disabilities, Dr Walker's reports present a thorough and objective analysis of the plaintiff's disabilities and should be regarded as the most reliable source for accurate information as to the plaintiff's disabilities.
Dr Walker was cross-examined in relation to these reports, but he essentially repeated these opinions in his answers.

[19]

Dr Endrey-Walder

Dr Endrey-Walder opines (Exhibit A): "Mr Smith has, of course, had no remunerable work from the day of the accident, and he is certainly to be considered today as totally unfit for any kind of physical activity, whether remunerable or related to his domestic chores, which necessitates him being on his feet for more than a few minutes at a time. He is severely restricted in his ambulation even on flat ground, has great difficulty on uneven ground, cannot climb stairs or inclines without a walking stick, has no capacity for squatting or kneeling on the left knee. He has only ever earned his living as a sheet metal worker and has no experience in work situations that are sedentary/clerical in nature. Given the ongoing medication with narcotic analgesics one would not seriously expect him to be able to undergo vocational rehabilitation at this time".
Subsequent to Dr Endrey-Walder expressing these views on 28 October 2014, he prepared an updating report in which he referred to reports of Dr Walker and noted that the plaintiff's tibial fracture was at last healed and "solid" but that he now had significant wasting, patella-femoral arthritis and continued to rely on the Canadian crutch whenever he was out of his home. Dr Endrey-Walder noted that this would hopefully be no longer necessary by the end of the year (i.e. the end of 2015). This appears to be the general view in relation to the plaintiff's use of a crutch, and is a helpful observation.
However, Dr Endrey-Walder's other observations were of limited utility. He concurred with Ms Patterson's view that there should be a pain management programme, but did not expose his reasons for doing so. As Ms Patterson made some admissions in court in relation to the contents of that document, this endorsement is not of much assistance. He also made a whole person impairment finding, which is irrelevant, as the plaintiff is not entitled to non-economic loss.
Dr Endrey-Walder's report and evidence in court really add nothing to Dr Walker's reports. As the treating doctor and the author of a series of careful reports over a period of some years, Dr Walker's evidence is to be preferred.

[24]

The defendant's medico-legal reports

The defendant relies upon two reports of Professor Pryor, two reports of Dr Zeman and a report of Dr Newlyn, a psychiatrist.
Professor Pryor provides a job skills analysis, noting that the plaintiff's score fall into the low-average range, which was consistent with his reported educational and employment background and "suggested capacities for successfully completing practically orientated trade level courses" (Exhibit 2, report of 17 November 2011, p 6). He did, however, have "well below average formal reading skills", although his skills were sufficient for employment.
Professor Pryor noted the plaintiff had a pre-injury history of significant adjustment problems associated with alcohol abuse or possible addiction. He noted that "even now as he seeks to play down his past, it still appears that he is drinking excessively at up to 40 drinks per week as he self-reports".
While Professor Pryor noted that the plaintiff had had "a trying time" (Exhibit 2, report of 17 November 2011, p 8) with the surgery, he considered it "disappointing" that the plaintiff was "too busy" to take up an offer for psychological assistance, since he reported that much of his time was spent in bed.
Professor Pryor concluded that the plaintiff had a variety of knowledge, skills and abilities and that, while he would not be able to resume his pre-injury employment, he could consider sales and lighter work. A job match report for sales assistant positions and other similar jobs including "a ticket seller, a locksmith and a motor vehicle parts interpreter" is provided, as is a labour market analysis report prepared by a Ms Liz Atteya.
Mr McCarthy submitted that I should reject the report of Professor Pryor in its entirety because he is a psychologist and as such he is not possessed of the necessary expertise to comment on jobs suitable for persons with orthopaedic injuries. Only an orthopaedic surgeon or a person with medical qualification would be able to prepare a report of this kind.
In Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443, Basten JA noted the undesirability of orthopaedic surgeon expressing opinions as to home care when this is work falling within the area of expertise of occupational therapists. By extension, the same would apply to vocational issues. A psychologist such as Professor Pryor has the training to assess intellectual capacity and is also familiar with the job market and job requirements, by reason of the specialist training undertaken by psychologists working in this area of their profession. As to the plaintiff's physical limitations, Professor Pryor has the advantage of being guided by medical reports on this subject, in the same way that an occupational therapist is guided by medical reports.
I am satisfied that Professor Pryor has the expertise to make assessments as to the plaintiff's employability.
The defendant also relies upon the evidence of a medical practitioner who is an expert on rehabilitation medicine, Dr Brian Zeman, who provided two reports dated 28 April 2015 and 24 March 2016. Dr Zeman was also cross-examined.
Dr Zeman carried out a physical examination of the plaintiff and obtained a detailed history of the accident, resulting medical symptoms, vocational history and current ongoing disabilities. The vocational assessment involved consideration of the plaintiff's personal, educational and employment background and the psychometric evaluation of his intellectual skills and personal preferences.
Dr Zeman noted that most of the job options he proposed in his previous report could still stand, although the plaintiff seems less motivated. He considered the plaintiff's most suitable vocational options were likely to be found in the sales worker and labourer categories, and provided a job match on the basis of each of the assessments he carried out. He concluded: "The medical assessment concluded that Mr Smith is fit for light to moderate physical work and sedentary work. His leg fractures have united and any infection has resolved. Some intermittent left neck pain may occur but his pains at this stage depend predominantly on factors unrelated to the degree of underlying organic pathology." (Exhibit 2, report of 24 March 2016, p 3)
Dr Zeman did not accept that the plaintiff had back pain and altered gait from using crutches (T 251), noting that CT scans had not demonstrated any support for this. He considered that the plaintiff should stop taking Endone and using a crutch. There was "no significant radiological sign of severe osteoarthritis in his knee" (T 256) and his orthopaedic problems have resolved (T 258). In his opinion, as a rehabilitation specialist, the plaintiff is able to perform jobs of the kind outlined by Professor Pryor (T 260 - 264). He considered that Dr Walker's observations about the plaintiff's ongoing pain needed to be seen in that context: "I will not agree with Dr Walker's ‑ I can understand why Dr Walker has said that, but I will not agree that there is an ongoing course for significant pain and functional limitations. Where orthopaedic people have difficulty accepting the pain is a symptom, you know, where this is a physical reason, sure, when there is ‑ when things have built up, there is some problems, but certainly not the problems that he is complaining of or the limitations that he has got at the moment. I have seen people, right like Mr Smith and they should not be disabled as he claims to be." (T 259)
Dr Zeman also disagreed with the views of Dr Endrey-Walder (T 264). He was asked: "Q. Why do you disagree with him doctor? A. He doesn't have, I mean I feel ‑ I've seen a lot of people who have come back and then mobilise or people after fractures. And you have some initial problems but unless there is structural damage to the angles of the ankle or the knee then you are able to manage flat surfaces without much difficulty at all. Uneven surfaces are only a problem if you've got a major problem with the movement of the ankle or the knee. He doesn't have either of those." (T 266)
Finally, I note that Dr Newlyn provided a psychiatric report but, in view of my findings in relation to Dr Westmore's report (see below), it is of little assistance.

[27]

The defendant's damages schedule Head of Damage Amount 1 Past out-of-pocket expenses ($230.00 s 83) $29,324 2 Future medical treatment (buffer) $25,000 3 Past loss of earnings: Adopt baseline earnings of $50,000 gross per year or say $1,000 gross per week ($820 net) for 2.5 years of past only, based on pre accident patterns of time in gaol/unemployment, alcoholism and mental health issues. $106,600 4 Past loss of employer funded superannuation @11% $11,726 Impairment of future earning capacity - substantial vicissitudes to reflect significant periods of unemployment and health and forensic consequences of long standing alcoholism and mental health issues. 5 Allow $1,000 net per week for 2 years (multiplier 99.4) while plaintiff undertakes pain management/substance abuse withdrawal [$99,400]. $339,468 Then assume $250 p/w residual earning capacity for part time sedentary unskilled work: $1,000 per week less $250 per week residual earning capacity = $750 x 685.6 deferred 2 years (0.907) [$466,379] Subtotal: $565,779 less 40% for vicissitudes 6 Future loss of employer sponsored superannuation @ 12.5% (NB: If self-employed in future as had been for part of recent past, no allowance would be made for those periods) $40,568 Past gratuitous care and assistance - allow: From discharge from hospital on 28 November 2011 until 26 January 2012 (Paterson assessment once out of hospital, less time assessed for replacement of contribution to cleaning, gardening and outdoor maintenance at share house as no evidence those services replaced): 19.13 hours per week for 8 weeks @ $28 per hour [$4,285] From 26 January 2012 to 26 April 2012 while living with Rebecca and her family: Paterson assessment less time assessed for replacement of contribution to cleaning, gardening and outdoor maintenance as not doing so for Rebecca before accident; also no evidence of car washing: 17.63 hours for 13 weeks @ $28 per hour [$6,417] From 26 April 2012 to 29 June 2012: Plaintiff returned home. Patterson assessment less garden and lawn and household maintenance (not required in rented home) and less car maintenance as no evidence of car washing. 12.13 hours per week for 9.1 weeks @ $28 per hour [$3,091]. Also allow one off 8 hours assessed for moving residence [$224] From 3 July 2012 to 17 July 2012: Post surgery, plaintiff discharged to Rebecca's home. Paterson assessment less time assessed for replacement of contribution to cleaning, gardening and outdoor maintenance as not doing so for Rebecca before accident. Also no evidence of car washing. 18.13 hours per week for 2 weeks @ $28 [$1,015] 7 27 August 2012 (out of hospital) to incarceration on 21 September 2012. Living with Rebecca: 17.65 hours per week (same basis as above) for 4 weeks @ $28 [$1,977] $50,525 23 December 2012 (released from custody) to 6 May 2013: 10.13 hours per week (same basis as above) for 19 weeks @ $28 [$5,389] 7 May 2013 to 2 June 2013: Moved into home unit. Paterson assessment less garden, lawn and household maintenance (not required in rented home unit) and less car maintenance as no evidence of car washing. 12.13 hours for 4 weeks @ $28 [$1,359]. Also allow one off 8 hours assessed for moving residence [$224]. 2 July 2013 to March 2014: Plaintiff in external fixateur. Conceded high need for assistance. Allow 14 hours per week @ $28 for 38 weeks [$14,896] March 2014: fixateur removed. Plaintiff residing in home unit. Further surgery required in July 2014 with brief hospital stay. Allow on average 8 hours of assistance per week for 12 months while fracture uniting and need for assistance lessens @ $28 [$11,648] Thereafter, no allowance. Reasonable need for assistance falls below the intensity threshold of s 141A (i.e. less than 6 hours per week). 8 Equipment $10,000 Defendant accepts that certain equipment will promote the plaintiff's return to independent performance of domestic tasks. Allow buffer for purchase of items recommended in evidence like kitchen perching stool, dishwasher with drawers, wall mounted washer/dryer, light weight vacuum cleaner, long handled cleaning equipment etc. Future care and assistance: Evidence from Tammy that current home can be cleaned by her within 3 hours. Evidence sisters prepared to continue providing gratuitous assistance.

[31]

The onus of proof

If a plaintiff proves incapacity as a result of the injuries he sustained in an accident, he or she is entitled to damages in respect of the incapacity: Ridolfi v Hammond [2012] NSWCA 3 at [83], going on to note Watts v Rake (1960) 108 CLR 158 at 160 (per Dixon CJ) as to the principles in relation to pre-existing conditions. The defendant bears the onus of establishing that the plaintiff's loss under the respective heads of damage arise from causes other than the defendant's negligence: Purkess v Crittenden (1965) 114 CLR 164.
In Ridolfi v Hammond, Sackville AJA went on to note (at [87] - [88]: [87] The principles stated in Watts v Rake and Purkess v Crittenden now must be understood in the light of the principles stated in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; 169 CLR 638. These principles were summarised by Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, at [103]: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities. [88] Ipp JA explained (at [104]-[107]) that: [104] … Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. [105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities. [106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. [107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. See also Insurance Australia Ltd v Helou [2008] NSWCA 240 ; 51 MVR 414, at 421-423 [51]-[56], per Campbell JA (with whom Allsop P and Bell JA agreed); Varga v Galea [2011] NSWCA 76, at [51]-[52], per McColl JA (with whom Beazley JA and Handley AJA agreed)."
Although the fact situation in Ridolfi v Hammond was very different, in that the plaintiff suffered from a pre-existing injury (as opposed to the challenge to Mr Smith's employability and employment history in this case), the statement of general principles is a helpful summary, and both parties relied upon the authorities so helpfully set out and explained in this extract from Sackville JA's judgment.
The defendant's submission is that in determining disputed issues in the manner advocated by these decisions (such as future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring), the exercise of 'disentanglement' is achieved by the court evaluating possibilities in these situations rather than requiring proof on a balance of probabilities. It is submitted that the defendant, having established another cause, such as a pre-existing condition, which contributes to disability, need not establish that the condition in question had made a material contribution to the injury. It is sufficient for the defendant adduce evidence sufficient to displace the inference that the injury suffered was wholly or partly caused by the injury by the defendant.
The plaintiff submits that the onus of proving a pre-existing condition with any capacity for past or future impact on the heads of damage suffered by the plaintiff always rests with the defendant, citing Watts v Rake at 160.
Where the parties differ is not so much in terms of the onus, but in terms of the factual issues, as the plaintiff submits that "the defendant has done no disentangling" (written submissions, paragraph 37) while the defendant submits that he has. The principal issue of contention is the degree to which the defendant has discharged his onus in relation to vicissitudes.

[32]

Conclusions concerning past economic loss

However, the question of the plaintiff's past and future earning capacity loss must be determined by assessing the plaintiff's earning capacity prior to and following the accident by having regard to the actual earnings of the plaintiff (Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 at [139]). The best evidence is generally the actual earnings of the plaintiff in the years immediately preceding the injury. Accordingly, when assessing both past and future economic loss, I take into account that the plaintiff had the capacity to earn up to $62,400 gross per year as a farm worker but that, since he has come to Sydney and worked in air conditioning installer, the increasingly serious problems of his alcohol triggered criminal activities had begun to impact not only on his work history and also on his health, in that he was diagnosed with depression and found by Centrelink to be unfit for work. In fact the longest period that the plaintiff was continuously employed is approximately 18 months, as counsel for the defendant notes in his written submissions at paragraph 59.
Taking into account the actual disruptions of the plaintiff's working life as I have set out above, I am satisfied that the plaintiff was in fact working for approximately nine months of each year and receiving unemployment benefits or other benefits (such as payment for work in prison) for the remaining part of the year. Taking this into account, I accept the defendant's figure of $920 net per week as the appropriate measure of his pre-accident earning capacity. I note in particular Mr O'Keefe's submissions (at paragraph 62) that the amount the plaintiff was paid while employed at Sea-Air was an averaged sum of $1,127 net per week. The plaintiff's brief period of employment with Complete Air Conditioning (12 October to 23 November 2011) had rates of pay varying between $908 net per week to $1,157.70 net per week, apparently as a result of overtime. While I note the explanation for the plaintiff's departure from Sea-Air as being due to a lack of full time work, this long period of unemployment in the months before the accident is not the subject of any satisfactory explanation by the plaintiff. I note, however, that between July and August 2011 the plaintiff consulted Dr Michael for his depressive anxiety disorder. It was during this period of time that he assaulted his brother-in-law. The amount claimed by the plaintiff ($1,250 per week) makes no accommodation for any of these significant gaps in the plaintiff's employment history.
However, the figure given by the defendant in the damages schedule, which adopts a baseline earning of $50,000 gross per year (or $1,000 gross per week) for 2.5 years only is, in my view, unacceptably low. I accordingly propose to award past economic loss for 238 weeks at $920 per week, which makes a total of $218,960.
Past superannuation at 11.5% is $25,180.40

[34]

The plaintiff's capacity for work other than heavy labouring jobs

In his opening to me, Mr McCarthy stated: "Your Honour, the unfortunate thing with Mr Smith is that he is ‑ I hope he's not offended by this ‑ but he's functionally illiterate. He has the most borderline reading and writing skills that one could have and still get by in society." (T 5)
The plaintiff gave evidence that he completed Year 10 and a sheet metal apprenticeship course, but that he was unable to read anything complicated and had never read a book in his life.
The plaintiff's literacy skills were considered by the following experts: 1. Professor Pryor, who noted the plaintiff had well below average reading skills 2. In the Corrections Health Service Reception Assessment dated 15 October 1997 (Exhibit 1, p. 38), the entry "literacy skills" has two alternatives: poor and adequate. The word "adequate" has been circled. 3. I note in the plaintiff's general practitioner's Health Care Plan dated 8 February 2010 (Exhibit 1, pages 56 - 7) he answers the question "how well does the patient speak English" with "Very well". He also records that the plaintiff completed secondary school to year 12. The plaintiff was not asked about this and I assume that this latter entry is a mistake. It is, however, to be noted that the plaintiff's general practitioner does not record any communication difficulties.
The plaintiff has never owned a computer, which counsel for the plaintiff submitted was significant. He was, however, able to use his smartphone to pay bills. He is also able to send and receive text messages.
The kinds of jobs proposed by the defendant's experts do not require computer use. The plaintiff's statements in evidence that he could not perform any of these jobs is an opinion unsupported by evidence. Nor do I accept his evidence that memory problems he has suffered since the accident would prevent him from working. As noted in my comments concerning Dr Westmore's report, I am not satisfied that there is any evidence connecting the plaintiff's memory problems with the injuries he suffered in the motor vehicle accident.
I am satisfied that the plaintiff is not illiterate and that, while his literacy skills are poor, they are sufficient for positions of employment of the kind proposed by Professor Pryor and Dr Zeman.

[36]

The plaintiff's pre-existing problems with depression and anxiety

In January 2010, a little short of two years before the accident, the plaintiff had a series of interviews at Centrelink about obtaining employment, in the course of which he disclosed fortnightly treatment for depression and anxiety as well as two suicide attempts. The plaintiff initially said that he did not remember this: "Q. You see, I've got a document from Centrelink which is described as a job capacity assessment report with a date on it, 18 January 2010. Do you remember going and seeing somebody? A. No, I don't. Q. Do you remember seeing somebody called Michael who was a physiologist at Centrelink in Camden? A. No. Q. At that time? A. No. Q. I want to suggest that you did go and see Michael at Centrelink at that time and you told him about your depression? A. Yeah. Q. You don't have any memory, is that what you're saying? A. I don't remember that, no." (T 131)
The plaintiff then suggested that this report must have been prepared when he was charged with the drink-driving offence for which he was facing a term of imprisonment: "Q. Michael wrote that you were in this report that you were unfit for working for a period of six months because of your depression? A. In 2000? Q. In 2010, January 2010? A. Right, that must've been when I just got done for DUI. Q. Do you remember going to Centrelink at that time and speaking with somebody about your depression, about being unable to work? A. No, I don't. Q. I won't read all of the document to you but it's on page 4 of the document the following is written "A medical certificate was supplied by Centrelink. Mr Smith's treating doctor reported the following health barriers to employment; depression, anxiety. Treatment consists of counselling with a psychologist and case management by CMH every fortnight. The medical certificate was completed by Dr Michael on 5 January 2010". You were seeing Dr Michael in January 2010, weren't you? A. Yeah. Q. Or you did see him, didn't you? A. Yeah. Q. Do you remember getting a certificate from him and providing it to Centrelink? A. No, I don't remember but, yeah. Q. Do you remember telling the man at Centrelink in January 2010 that you were getting fortnightly counselling? A. No. (T 131 - 2) [Emphasis added]
The plaintiff denied that he had made up these claims in order to obtain Centrelink benefits: "Q. Could it be that you told this man things that were not true in order to assist you to get some benefits through Centrelink? A. I told him that I wasn't going to, told him how I was getting appointments every second week. Q. Yeah, because you thought it might assist you in some way? A. Yeah. Q. Are you the sort of person that's willing every now and then to tell an untruth if you think it's to your advantage? A. No, not usually. Q. You say not usually, are there exceptions when sometimes you are willing to tell a lie to get what you want? A. I don't, I'm not a liar, no. Q. Mr Smith, in this job capacity assessment report the man, Michael wrote "During discussions Mr Smith reported that he has suffered from depression for the past six months and has had two suicide attempts in that period and spent time in Campbelltown Hospital following each attempt. He is case managed by CMH on a fortnightly basis and is seeing a psychologist for counselling"? A. Well I did go and see, is that the one you said at Leumeah? Well I went there and seen a guy so when I told him I was probably booked in to go and see her every week and I told him I went. Q. You haven't told us in court in the last two days about going and getting counselling every two weeks, have you? A. I told you yesterday when you asked me would I use the money if I got any to‑‑ HER HONOUR: No, that's in the future, that's different. WITNESS: Yeah, so and I said no because I don't like talking about, yeah. O'KEEFE Q. You weren't going and getting counselling every two weeks after you lost your licence in November 2009, were you? A. When I went to Centrelink and told them that I was. Q. So you do say now that you did get counselling every couple of weeks, do you? A. You told me a minute ago I did." Q. No, sir, what I told you is what was written in a job capacity assessment report by a man called Michael who was writing down what you told him? A. Yeah and I said I don't recall going but. Q. Are you telling us today that you did in fact go and get counselling every two weeks somewhere after you were caught drink driving in November 2009? A. I don't recall doing it, no. Q. Isn't it possible that you told Michael at Centrelink that you were getting counselling every fortnight when that wasn't true? A. I was probably booked into go and do it at the time when I told him. I don't go round telling lies." (T 132 - 3) [Emphasis added]
The plaintiff was also asked about telling the Centrelink psychologist he suffered from panic attacks and hypotension, and about medication he had been prescribed for these conditions: "Q. Mr Smith, Michael then wrote down this "Mr Smith mentioned that has a constant depressed mood and frequent panic attacks". Remember having panic attacks in 2010? A. Don't even know what a panic attack is. Q. You remember saying that you had hypertension which was treated with three types of medication? A. I've always had hypertension. Q. Have you ever taken three types of medication for it? A. Not sure, I was taking, I know I was taking two there at one stage and then they changed it all around until they got it right. Q. This man, Michael wrote that you said, "Due to these medications Mr Smith cannot take antidepressant medication as it may cause significant side effects"? A. Yeah. That's what my doctor told me. Q. Who told you that? A. The doctor that was prescribing me blood pressure tablets. Q. Who was that? A. I can't recall which doctor at the time I was seeing, either Michael or? Q. Dr Michael did prescribe you Pristiq, didn't he, in 2011? A. On one occasion, yeah. Q. You didn't tell us earlier today that you didn't take the Pristiq because it affected your hypertension medication, did you? A. I can't, I can't remember like everything that happened in my life. I don't know why I didn't take it. Q. This man, Michael went on to write this, "Mr Smith mentioned that he was charged with midrange DUI in November 2009 and has had his licence suspended. He is to attend court on 27 January 2010 to be sentenced and find out how long his licence will be suspended for". Now, that was the case, wasn't it, that information, that's accurate information, isn't it? A. Can you read that again, sorry?" (T 132 - 3) [Emphasis added]
The plaintiff agreed that this was accurate. He was then asked about the work history that he had given to the Centrelink psychologist: Q. "Mr Smith mentioned that he last worked in November 2009 as an air conditioning mechanic. He has a trade in sheet metal and refrigeration"? A. I have a trade in‑‑ Q. What I'm suggesting to you, Mr Smith is that that's what you told Michael at Centrelink and that was true, that information, wasn't it? A. Last time I worked as a sheet metal worker was in 2009? Q. Yeah, this is something you told him in January 2010? A. Yeah. Q. What I want to suggest to you, Mr Smith, is that as a result of this assessment with this man, Michael a decision was made to find that you were unfit for work for the purposes of Centrelink and for getting Centrelink benefits in January 2010? A. Did I work in that time? Q. I'm asking you, did you? A. Yes, I did. Q. Did you also get benefits from Centrelink during that time? A. I don't recall. I would not if I was working I wouldn't have been. Q. On page 3 of the report Michael wrote "Jeffrey Smith is a 36 year old male who lives in Narellan Vale, New South Wales who suffers from depression, anxiety, inclined to report of hypertension", that's all accurate, isn't it? A. Yeah. Q. "Mr Smith was referred for a JCA, a job capacity assessment by Centrelink with NSA, incapacitated MC lodge for reason for assessment", I'm not sure what that means. He then wrote "During the assessment Mr Smith was very compliant and positive about participating in discussions about his medical condition and its effects on his daily and working life. Mr Smith attended the interview on time and has heard the client information sharing document after discussing the reasons for his job capacity assessment", can you remember me having read that to you having any of these discussions with the man called Michael? A. No, I don't. Q. Did you have any more counselling with a psychologist or any other person between the beginning of January 2010 and when you went to gaol in June 2010? A. Only those ones you just talked about earlier. It's all confused. I don't even know when you're talking about." (T 134 - 5) [Emphasis added]
As the highlighted passages demonstrate, the plaintiff underwent a job capacity assessment, armed with a letter confirming his medical issues prepared by his general practitioner, and was certified as unfit for work by Centrelink as a result. I have set out this section of the evidence at some length so that the plaintiff's reluctance to admit to these events can be seen in context.
The plaintiff was undoubtedly very concerned about the criminal proceedings he was facing, which were certain to result in a gaol term, as well as distressed about a failed relationship. The hospital records confirm the suicide attempt he made, and his level of distress at the time was clearly high. He was, however, certified as unfit for work by Centrelink, and that is a relevant factor in terms of causation.
Dr Westmore, assessing the plaintiff as suffering from and adjustment disorder with predominantly depressed mood, had none of this information before him. He knew nothing of the plaintiff's criminal history and its relationship with alcohol abuse, or of his prior history such as suicide attempts; to the contrary, he was told that the only incident of note in the plaintiff's past mental health history was problems following the breakdown of the plaintiff's relationship with his partner a decade ago. He was also told that the plaintiff was "generally a social drinker" thought there has been "some history of occasional bingeing" (21 July 2015 report, page 4). Even the circumstances of the accident were glossed over; Dr Westmore records the information he received as being that the plaintiff had gone out for dinner after work and had been walking home with a mate when the accident happened (page 2 of the 21 July 2015 report).
In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [67], Heydon JA noted that if an expert has been misinformed, the report is likely to be valueless. Dr Westmore's diagnosis of the plaintiff's adjustment disorder and comments about the plaintiff's medical problems are without value for this reason. This means that I do not accept that there is any basis for the plaintiff's claims of adjustment order or forgetfulness and that these are not factors to be taken into account either in relation to his economic loss claim or (in relation to the issue of forgetfulness) in relation to his claim for domestic assistance.
The parties addressed me about this issue in relation to both future economic loss and vicissitudes. It would amount to double counting against the plaintiff to take this issue into account in both determining his future economic loss and his vicissitudes.
A medical condition which results in the granting of a pension or a certificate of unfitness for work relates to future earning capacity. The plaintiff's problems with depression are thus issues relevant to his future earning capacity. By comparison, his problems with alcohol (and their interaction with criminal behaviour) are matters relevant to vicissitudes.

[37]

The plaintiff's drinking habits

I first note that Mr McCarthy submitted that there was no evidence (and in particular no expert evidence) to suggest that the plaintiff's drinking habits in any way impinged on his work capacity and/or impeded his recovery and/or were relevant to vicissitudes. He particularly drew my attention to the following: 1. The defendant "has served no evidence to prove that the plaintiff's consumption of alcohol did in the past, or would in the future, have led to interruptions in his working life" (written submissions, paragraph 37). To the contrary, the plaintiff's working history demonstrates regular employment for long periods and his fellow worker, Mr Kohlenberg, described the plaintiff as a very good worker for the time that they worked together (22 February - 28 June 2011). There was no evidence of regular absences (or indeed any absences) due to alcohol abuse and Mr Kohlenberg was completely unaware of any occasion of excessive alcohol intake by the plaintiff. 2. There was no evidence, expert or otherwise, that the plaintiff was any different from "thousands of Australians who drink a lot of alcohol", including "members of our own profession" who drink more than medicinally recommended rates without their ability to perform their day jobs being affected (written submissions, at 38 - 39). 3. The "inconvenient truth" for the defendant was that the plaintiff told his doctor shortly before the accident that he had "vastly decreased his alcohol consumption" (written submissions, at paragraph 40), in that he was only drinking 6 drinks on 1 - 2 days a week. 4. Since the accident the plaintiff had voluntarily reduced his intake of alcohol and was now only drinking very moderately.
The defendant submits that the plaintiff has a twenty-year history of alcohol abuse, coupled with a refusal to take medication prescribed for it or to attend counselling and that, like his depression and anxiety problems, his drinking problem remains unresolved (written submissions, paragraphs 30 - 39). This has included being less than frank with his medical practitioners about the nature and extent of his drinking habits (written submissions, paragraph 39) and is now complicated by his continued taking of Endone.
Professor Pryor's observations as to the likely extent of the plaintiff's drinking problems are also of relevance.
I am satisfied that the plaintiff has a lengthy history of alcohol abuse which, prior to the accident, began to impact upon his earning capacity and which would have increasingly curtailed his capacity for employment as he grew older, as well as exposing him to risks. However, I have only taken this factor into account in relation to the percentage for vicissitudes. I have determined his future economic loss by having regard to his past work history, not his problems with alcohol.
This brings me to the plaintiff's submission that any residual earning capacity the plaintiff has is effectively valueless because he is now chronically unemployed and unemployable as a result of his leg injuries, whatever pre-existing medical problems he may have had.

[38]

When does a plaintiff's theoretical earning capacity have no value?

While the plaintiff may in theory have a residual earning capacity, that does not necessarily mean that this capacity has that same value, or even any value at all.
In Mead v Kearney [2012] NSWCA 215 the Court of Appeal dismissed an appeal from a decision of Garling J holding that the plaintiff's theoretical earning capacity had no value in circumstances where there was no reasonable prospect of the plaintiff obtaining work to exploit that theoretical capacity. The facts in that case were similar to the present; the plaintiff had a serious leg injury which left him with a limp as well as an ongoing depressive disorder and, as he lived in a small country town, work prospects were poor. Garling J stated: "[190] It is necessary for a plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller (1981) 150 CLR 402 at 412-413, however conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she "is not [in]capacitated from performing". It is for a defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Luntz, Assessment of Damages for Personal Injury and Death (4th ed) at [118 [1.9.20]]. [191] This approach was referred to with approval in Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20]. I will consider these questions with the question of onus in mind."
Garling J assessed the plaintiff's "theoretical work capacity" at 40% but then proceeded to determine whether the plaintiff could practically utilise that capacity to obtain work in the geographic area in which it was reasonable for him to seek work, an approach approved by the Court of Appeal in Nominal Defendant v Livaja [2011] NSWCA 121 at [65]. Having found that there was no realistic prospect of finding any suitable work in the area where the plaintiff lived, Garling J assessed the plaintiff's earning capacity at nil. The defendants appealed on the basis that the trial judge had discounted evidence that the plaintiff could drive to Mudgee and obtain work there.
Macfarlan JA, dismissing the appeal, held the evidence of the plaintiff's difficulty for the four years prior to the trial supported the argument that no practically available work for which the plaintiff's residual earning capacity could be exercised. The plaintiff had given evidence was that he had sought assistance from two rehabilitation providers, undertaken courses, read newspapers and looked on the internet for jobs advertisements and performed voluntary work, all without success. The defendants did not plead that the plaintiff failed to take reasonable steps to mitigate his loss in the period prior to the trial (I note no such claim has been made here either).
Macfarlan JA held that the plaintiff's efforts showed that he had really tried to get work but had been unsuccessful. Thus, without evidence that the plaintiff's condition would improve in the future or be accommodated by future employment markets, the trial judge had correctly held that the plaintiff's theoretical residual earning capacity would be of any use to him in the future.
However, the court also endorsed the approach taken in Nominal Defendant v Livaja, namely that, in determining a plaintiff's residual earning capacity, regard must be had to whether there is a practical likelihood of the plaintiff exploiting their "theoretical earning capacity" by obtaining work in the vocations which he or she may be theoretically capable of performing. This means that a defendant must not only adduce evidence of vocations are practically open to the plaintiff (not only geographically, but also having regard to the plaintiff's personal circumstances, age and level of education and skills) in order to discharge the onus. It is not sufficient merely to adduce evidence of the range of vocations open to a plaintiff in order to discharge the onus of establishing that a plaintiff has a residual earning capacity.
Mr McCarthy put each of the proposed forms of employment to the plaintiff, who said he would not be able to perform any of them. Mr McCarthy relies upon the plaintiff's statements to this effect, and the evidence of Dr Walker that the length of and complexity of the plaintiff's recovery means that whatever the plaintiff's theoretical earning capacity would be, it effectively has no value.
However, there is no evidence in these proceedings of the kind available in Nominal Defendant v Livaja as to geographical work problems. The defendant has discharged the onus of finding vocations open to the plaintiff which relate to his age, education and personal circumstances. Dr Walker's observations as a surgeon that patients with long recoveries such as the plaintiff has had are of some empirical value, but the evidence of the experts in this field, Professor Pryor and Dr Zeman, is compelling, and their opinions (unlike those of Dr Walker) are within their level of expertise.
Taking all of the above into account, I do not accept that the plaintiff is incapable of working and that his future economic loss should be assessed on that basis. He still has a residual capacity for work, and I consider that the future economic loss estimates made by the defendant reflect both his future work capacity and a reasonable estimate of his residual work capacity.

[39]

Future economic loss

Section 126 of the Act sets out the obligations for the plaintiff to satisfy the court as to his most likely future circumstances in terms of work capacity but for the injury whereas s 126(2) requires an adjustment. This requires the court to make findings as to the plaintiff's most likely future circumstances on the basis that the injuries for which compensation is sought has not occurred.
Accordingly, what I must do is make a finding as to the plaintiff's future economic loss along the same lines as that I make for past economic loss and then, in accordance with s 126(2), allow for vicissitudes.
The plaintiff claims future economic loss at the rate of $1,200 per week on the basis of the plaintiff's earnings as an air conditioning installer. Despite the patchy working history of the plaintiff and his relatively short career in air conditioning installation, there is no allowance for periods of unemployment.
I am satisfied that the plaintiff does in fact have a residual capacity for work, and that the estimates given by the defendant are supported by the reports of Professor Pryor and Dr Zeman. It was not only Dr Zeman's view, but also that of Dr Walker, that the plaintiff needed to stop taking addictive pain medication and using a crutch. Dr Zeamn said that the plaintiff's complaints of pain and altered gait from crutches should no longer be a medical issue as his orthopaedic problems had resolved and there was no evidence on CT scans of significant problems. I am satisfied that the evidence of Professor Pryor and Dr Zeman as to the plaintiff's future earning capacity should be accepted.
The defendant, on the basis of this evidence proposes $1,000 net per week for two years while the plaintiff undertakes pain management and substance abuse withdrawal, followed by an assumed $250 per week residual earning capacity for some form of part time sedentary or unskilled work.
The figure of $1,000 net per week, which is based on the plaintiff's actual earning capacity, adopts the observations of Basten JA in Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore at [139]. I accept that this is the most accurate way to determine the plaintiff's future earning capacity. As is set out in the schedule of damages, this adds up to $565,779, subject to a deduction for vicissitudes which is discussed further below.

[41]

The parties' submissions as to allowance for vicissitudes

Calculation of future economic loss must take account future contingencies such as sickness, accident, unemployment and industrial disputes. The effect of contingencies must be taken into account on the facts of the individual case: General Motors-Holden Pty Ltd v Moularas (1964) 111 CLR 234; [1965] ALR 646. This is a separate task from the consideration of the quantum of future economic loss.
Although Mr McCarthy points out in his written submissions that an allowance for vicissitudes need not be made at all, New South Wales courts have generally adopted a convention of reducing the award for future loss of earning capacity by 15%, which is the position the plaintiff takes in these proceedings. However, the courts making these determinations acknowledge that there may be circumstances justifying a departure from this figure to a greater or lesser extent, depending on the facts of the case. In the present case, the defendant submits that the percentage for vicissitudes should be in the order of 40 - 50% (written submissions, paragraph 83).
The 15% discount is departed from only in very clear cases. In FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 at [18], Bryson JA stated: "[18] The Trial Judge adopted the conventional 15% without discussion or articulation of reasons. This is the usual course. The range of contingencies and vicissitudes allowed for by the conventional allowance of 15% is very wide; it is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure."
In Wynn v New South Wales Insurance Ministerial Corporation (NSW Court of Appeal, 11 August 1994) the Court increased an estimate of 5% for vicissitudes to 15 %. While Mr McCarthy is correct to submit that vicissitudes could technically not be awarded at all, or for a figure below 15%, the Court of Appeal's approach demonstrates that 15% is not the maximum figure, but the most likely figure (This decision has been trenchantly criticised - see for example, Graycar R, "Damaged Awards: The Vicissitudes of Life as a Woman" (1995) 3 TLJ 160 - but not on grounds relevant to the issues in these proceedings).
Cases involving increased percentages for vicissitudes generally result from fact situations where there is a pre-existing medical condition. For example, in Woolage v NSW [2001] NSWCA 256 a trial judge's deduction of 30%, taking into account the extent of the appellant's pre-existing back condition, was not disturbed on appeal. However, the percentage has also been increased where a party has a criminal record, a substance abuse problem, or both.

[42]

Increasing vicissitudes where the plaintiff has a criminal record

The combination of a pre-existing medical condition and other factors (such as a poor work history and involvement in crime-related activities) may result in larger percentages. In State of New South Wales v Maxwell [2007] NSWCA 53 the plaintiff, a prisoner, was injured while working in gaol. A significant increase from 15% to 50% was warranted because of the many relevant factors, namely his poor work record, criminal background, drug-taking, anger management and a pre-existing back condition.
The Court explained its reasons for this increase as follows: "[113] However, the appellant is on firmer ground in its submission that her Honour erred in making no allowance for the difficulties that the respondent would have encountered, even if uninjured. He would have needed more than favourable references from within the prison system to get anywhere near maximising the earning capacity inherent in his formal crane-driving qualifications. Even as an unskilled labourer he would have had difficulties in securing and retaining employment in light of his criminal record and his personal disposition. [114] One hopes that this comparatively young man will readjust his lifestyle and climb out of his long pattern of drug dependency and associated criminality. There have, however, been incidents since his release from prison indicating that controlling anger and avoiding the use of illegal drugs remains a significant problem. And it is to be expected that some prospective employers will shy away from engaging him, at least in the short term until he (hopefully), builds up a record of responsible employment. [115] These difficulties ought to have impacted on the awards for past and future economic loss. [116] Neither party seeks a new trial unless it is unavoidable. The Court must do its best to determine what awards are justified. [117] More than the pre-existing back problem should have been allowed for by way of "vicissitudes", assuming the conventional model of calculating economic loss by reference to the balance of an anticipated working life as a certificated crane operator. We think that 50% reduction in the award would more accurately reflect the probable loss stemming from all of the circumstances. [118] A 50% reduction in the award for past economic loss is also justified on similar reasoning."
A record of prior imprisonment is similarly accepted as a relevant factor to take into account. In Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293 at [196], a decision I drew to the attention of the parties, Beazley JA noted that, although there had not been any challenge to the plaintiff's evidence that his criminal activities and imprisonment had not affected his ability to find work, "given the interruptions to his employment because of periods of home detention and imprisonment, it would not have been inappropriate to take that factor into account by way of a vicissitude", and the court accordingly assessed that vicissitude at 25% (at [214]).
A history of drug or alcohol abuse may also be of relevance; in Kwong v Abdulwahab [2016] NSWCA 107 the trial judge increased vicissitudes to 25% for this reason and, while the Court of Appeal made a minor adjustment of $10,000 to the damages awarded, this reasoning was not the subject of challenge.
As already noted, counsel for the plaintiff submits that there has been an overemphasis on the plaintiff's criminal record; many of the offences were committed when he was a young man and none of the offences could be called "very serious", in that the most serious prison sentence he received was a six-month drink-driving sentence and in his entire life he has spent only nine and a half months in gaol in relation to three comparatively minor offences (written submissions at paragraph 42). The plaintiff is no "a hardened criminal the likes of which the Court routinely encounters in its criminal jurisdiction". It would be impermissible for the court to speculate that he would be sent to prison again, especially as he has kept out of trouble since the last offence for which he was imprisoned, namely the assault on the taxi driver.
While the plaintiff has been sentenced in relation to four drink driving offences, none of these involved accidents or injury, and counsel for the plaintiff submits that it would be mere speculation to assume that he would be involved in another accident. The only drink-related accident he has ever had is the accident the subject of these proceedings, for which the defendant is 40% to blame (written submissions at paragraphs 44 - 45). Nor have there been any work injuries.
All of the defendant's medical evidence points to the plaintiff having a significant alcohol problem and the material in Exhibit 1 demonstrates that this has led to increasingly serious problems in relation to alcohol related criminal offending. The percentage for vicissitudes was increased to 25% in both Taupau v HVAC Constructions (Qld) Pty Ltd (due to the plaintiff's criminal activities) and in Kwong v Abdulwahab (due to substance abuse). In these proceedings, both these factors are present. Taking all of the above into account, I propose to increase the percentage for vicissitudes to a figure above 25%. I do not consider, however, that this is a case comparable to State of New South Wales v Maxwell where vicissitudes were increased to 50%, where the plaintiff not only had a criminal background and drug taking problems but also anger management and a pre-existing back condition. Accordingly, I propose to increase the percentage for vicissitudes from 25% to 35%. The amounts awarded for future economic loss set out above should accordingly be reduced by 35%.
This brings me to the issue of home care.

[44]

The plaintiff's sisters' evidence

Both the plaintiff's sisters gave evidence of a long and close relationship with the plaintiff. In February 2011, about two months after his release from gaol, the plaintiff went to live with his sister Rebecca and her family. He remained there until July, when an incident with his brother-in-law resulted in some criminal charges and an apprehended violence order was put in place, following which the plaintiff left to live in share accommodation. Whatever these past problems may have been, the plaintiff returned to live with his sister Rebecca after his discharge from hospital and remained living there until he moved into a three-bedroom townhouse.
I briefly note the submissions of the parties as to this evidence. Counsel for the plaintiff stated that these "credible and reliable" witnesses (written submissions, paragraph 65) had not been challenged as to credit other than matters "faintly" put to Ms Jackson, concerning which her denial of "any elaboration" should be accepted. Counsel for the defendant submitted that they never seen him perform even simple household activities such as picking up items from the floor or driving his car were inconsistent with the medical evidence, that the amount of cleaning they claimed to do was excessive and that their evidence was coloured in that they were "self-interested in a particular result" (written submissions, paragraphs 25 - 27).
Although Rebecca had only seen her brother a few times a year prior to his moving to Sydney in 2005 - 6 (T 195), she had been in regular contact with him since that time, during the whole of which time she said he was in full employment: "Q. Ms Jackson, in the time you have known your brother but zeroing in on the last ten years, aside from the periods when he has been injured and before when he was in gaol, have you ever known him to be in any form of long‑term unemployment? A. No." (T 195)
In cross-examination she agreed there had been periods of time when the plaintiff was unemployed: "Q. Were you aware that he applied for and obtained unemployment benefits for a period of possibly an entire year in 2005/2006? A. No, I wasn't aware. Q. You were aware that he obtained unemployment benefits from the government at other times after 2005 and before 2011? A. I know there was a couple of times in between jobs finishing and starting for a small period of time but‑‑ Q. What do you say is a small period of time? A. Offhand a couple of months. I don't know exactly . Q. Wasn't that a pattern of employment that was the norm for your brother that in the last two or three years before this motor vehicle accident he had periods of a couple of months off between jobs that lasted for four or five months? A. No, not true. Q. Wasn't it the case that he had at least six months off in 2010 because he was in gaol? A. Yes. Q. And isn't it the case that after he got out of gaol he was unemployed for about six to eight weeks? A. Yes. Q. And isn't it he case that he was unemployed for about two months in July and August 2011 just a few months before the accident? A. I'm not aware of that one." (T 196)
Ms Jackson described the plaintiff coming to her home regularly on weekends to interact with her sons (T 177) and to help her husband with work on the house that they had purchased, although this latter assistance must relate to the same time that the plaintiff moved in with them in February 2011, as this was stated to be to help them with the mortgage because they had just "recently" (T 198) purchased a house. She did not appear aware that at all relevant times the plaintiff was coming to her house he did not have a driver's licence and did not know that he had been unemployed before coming to live with her (T 198).
Ms Jackson regarded the dispute between her husband and the plaintiff as a minor matter: "Q. What happened? A. It was just basically over something small. I was at work so I wasn't there. They had a disagreement regarding the yard. The boys had burnt some wood that my husband wasn't impressed with and they just had a few words over that, from what I was told, and got a bit physical, but nothing. Q. When you say got physical who got physical? A. Jeff got physical and my husband a little bit as well, they both just had a little bit of a I guess you could say a little bit of punch and yeah, over and done with type thing like overnight but. Q. Before that happened to your observations were Phil and Jeff good mates? A. Yeah, and they still are. Q. How long did it take for them to patch up their relationship, as far as you could see? A. A couple of days, but nothing really, yes. Q. Do you know how the police became involved in that? A. I'm not sure who called them, maybe a neighbour from what I understand. Like I said I was at work, I wasn't actually present at the house when it happened but from my understanding it was the neighbour." (T 177)
In cross-examination Ms Jackson acknowledged that following this incident the plaintiff was charged as well as being the subject of an AVO, but would only concede that it was "partially" (T 198) for this reason that he moved out of her home.
Ms Jackson is a loyal sister who did her best to put her brother in a good light. The objective circumstances of the charges and the plaintiff's departure from her home show that it was not correct for her to describe these events as "nothing". The degree of separation between Ms Jackson and the plaintiff after these events is hinted at when Ms Jackson acknowledges that between the July assault and the November accident she visited him "a little bit" (T 178) and was unaware that he was unemployed for most of this period (T 196).
Ms Jackson knew very little about her brother's prior criminal history or even about the charges brought against him during or shortly after the time he had been living in her home, including his lengthy disqualifications from driving: "Q. Are you aware that he was also involved around that time in assaulting a taxi driver? A. No. Q. You are aware of course that he went to gaol for three months in 2012, aren't you? A. Yes. Q. What is your understanding of a reason why he was gaoled at that time? A. I'm not sure. Q. You have given evidence that you are very close, you, your sister and your brother, haven't you? A. Yes. Q. Yet you tell us this morning you're not sure what he went to gaol for in 2012, is that your evidence? A. But I'm not sure. I'm not going to guess. I don't know. Q. Are you aware that your brother was receiving counselling for alcohol abuse in 2011? A. Yes. Q. The fact is that your brother had a real problem with drinking alcohol to excess and getting into trouble, didn't he? A. Sometimes. Q. It had led to him losing his licence for driving whilst intoxicated and driving whilst disqualified, hadn't it, before this accident? A. I'm not sure. Q. Did your brother drive a car during 2011 before the motor vehicle accident? A. Yes. Q. Were you unaware that during 2011 before the motor vehicle accident your brother had his licence disqualified? A. I wasn't aware, no." (T 199)
Ms Jackson gave evidence that she had to drive her brother to appointments because of his medical problems, not because he was disqualified from driving. She acknowledged, in addition, that the plaintiff had purchased a car for himself, although she claimed never to have seen him drive it and did not know why he had purchased it: "Q. You have told an occupational therapist that you have had to drive your brother to various appointments following his injuries, haven't you? A. Yes. Q. Were you aware during the time that you did so that your brother's drivers' license was disqualified? A. I'm not sure. Q. Cancelled? A. No I wasn't. Q. Do you know whether since the motor vehicle accident your brother has purchased motor vehicles? A. Yes. He has. Q. Has he driven those motor vehicles? A. Not that I've seen. No. Q. Have you ever asked him why he purchased motor vehicles since the accident? A. No. Q. Did you assume that he purchased motor vehicles so that he could drive? A. No." (T 202)
At T 202-203, Mr O'Keefe put it to Ms Jackson that she obviously loved her brother and was concerned to help him. While this statement is relevant to the question of whether there has been some exaggeration, it is also self-evident, from Ms Jackson's family's willingness to have the plaintiff live in her home for twelve months and to look after him carefully, that the principal reason for this was the affection Ms Jackson had for her brother.
When the plaintiff came to live in her home after discharge from the hospital on 28 November 2011, Ms Jackson gave him one of her son's bedrooms (her sons "doubled up" over this period: T 179). She and her husband worked different shifts and they spent several hours a day ministering to the plaintiff's needs. She was assisted by her sister Tammy in the late afternoons and on the weekend "to give me a little bit of a break" (T 182). It would be fair to say that the whole family made sacrifices over this whole period. The extent of the care is set out in detail in the occupational therapist's report and while the nature of some of the work carried out (for example, gardening) is challenged, the parameters of the home care claim for this period are largely conceded.
The plaintiff moved out of her home after nearly twelve months and went to live in a townhouse. Ms Jackson said that she continued to perform the same amount of work, visiting him 3 - 4 times a week: "Q. In terms of what you did for him over there, was it similar to what you did for him at your own home or different? A. Similar. Q. To your observation did his mobility improve? A. Not really, no. Q. Can you estimate how much time on average per week you spent doing things just on Jeff's behalf rather than anyone else's behalf of the nature which you were doing for him at your house? A. I'd say about, still about 15 hours a week, I spent over there doing housework and cleaning, meals. Q. You'd visit your brother those three or four times but is it the case that not the whole of that period was spent actually working, some of the time spent socialising? A. The majority of the time was working, yeah, often we might sit down for 20 minutes to half an hour and have a cup of coffee in that time, but, generally I was over there to help him. Q. If you had to carve out from the 15 hours or so a week, the time spent just having a chat or socialising or comforting him or just keeping him company, how many hours would that carve out? A. I would say two hours." (T 184)
Ms Jackson's account of her work for her brother (whom she described as remaining in bed and unable to perform any tasks) remaining the same after he moved was as follows: "Q. Are you sure you're not embellishing the amount of time that you've spent performing various activities for your brother? A. No I don't. No I didn't. Q. You gave evidence yesterday about how much time you spent doing things for your brother whilst he was living at your home. Can you recall when it was the he ceased to live at your home? A. No I can't recall it. Q. You don't know? A. No. Q. You gave evidence that you'd spent it was about 12 hours I think it was a week doing things for your brother at his unit in Campbelltown, is that right? A. Yes. Q. That was your estimate? A. Yes. Q. What were you doing that took 12 hours a week? A. I did a lot actually. I was washing, I was ironing. I was washing dishes, mopping floors, cleaning toilets, cleaning showers, changing beds, assisting him with medication. Going to the shops and getting him his medication when he'd run low. Just being there to do whatever needed to be done because at the time he was in bed most of the day." (T 205)
It was put to her that the level of helplessness she attributed to the plaintiff was greater than that observed by the occupational therapist: Q. …Are you aware that when the occupational therapist went in April 2015 he could reach up to the clothesline? A. No. I wasn't aware, no. Q. Had you ever seen him do that when you've been there? A. No. Q. Were you aware that when the occupational therapist was there, and I'm sorry, I have been saying, pardon me for one moment. I've been saying April 2015 whereas the assessment was on 21 May 2015. There was only one wasn't there? By Ms Patterson that you're aware of? A. Yes. Q. Were you aware that during the assessment by Ms Patterson your brother was able to stand and walk around for up to an hour during the assessment? A. No. Q. Have you ever seen your brother stand and walk around for up to an hour when you've been visiting him? A. No. (T 205 - 6).
Ms Jackson's evidence that the plaintiff was either in bed or on a chair for most of the time and unable to pick up an article from the floor was challenged, again on the basis of the physiotherapist's report: "Q. When you see him he's in bed or in a chair most of the time is he? A. Yep. Q. Were you aware that when Ms Patterson attended on your brother he was able to bend and pick up a pen from the floor with minimal difficulty without holding onto anything? A. No. Q. Have you ever seen your brother bend over and pick something up off the floor? A. Not that I can recall. No. Q. Were you aware that the occupational therapist saw your brother, in April last year, bend down and reach the bottom drawer in the kitchen without difficulty in his unit at Campbelltown? A. No. Q. Have you ever seen him do that? A. No I haven't. Q. Could it be that the reason why you've continued to provide so much assistance to your brother was that you didn't believe that he was capable of the sorts of things that I've just read out to you? A. I just felt that he needed my help and I could see he was in pain a lot of the time so I did it for him." (T 206)
Ms Jackson's reasons for doing all his shopping - that he could not carry items or drive - were also challenged, on the same basis: "Q. Were you aware that your brother told Ms Patterson that he can lift a light shopping bag from the floor? A. No. Q. Have you ever seen him lift a bag up off the floor? A. Not off the floor, no. Q. Were you aware that your brother is able to, since purchasing motor vehicles, drive down to the local shops to get the odd grocery item? A. I know he has occasionally when he's had to, yes. Q. Don't you think, knowing that, in relation to his driving of a motor vehicle to the shops, don't you think that he might be able to do the shopping for himself? A. Not a full shopping, no. Q. Could it be that one of the reasons why you've continued to do the shopping for him is because you're an employee at Woolworths and you get a staff discount? A. No." (T 206)
The same is the case with the evidence of home care after the plaintiff moved into his current place of residence at Warragamba, a property owned by a deceased family member. Ms Jackson said she continued to provide the same amount of care, which is to do more or less everything: "Q. Do you provide any services for him when you go over? A. I still prepare meals and do his washing and vacuum and wash his floors and vacuum and make his bed, change his sheets, I still do the domestic housework for him. Q. Do you ever get over there on weekends? A. Sometimes on a Sunday, Saturday we're generally busy with sport with the boys, but, on a Sunday I try and get over there to see him. Q. Do you ever see Tammy over there? A. Not that often, we try and go around each other, so he's got someone over there a couple of times a week I might run into her, but we work different hours, so. Q. Is there anything different about the services and the work you do for him in Warragamba than there was with respect to the work and services you provided for him in Campbelltown? A. No. Q. Can you estimate how many hours it takes you in the average week to provide the services and care you've told the Court since he's been in Warragamba? A. It would still be around 15 hours a week. Q. Again, asking the same questions about time spent not working but just being a sister, if we had to calve [sic] that out of it at that time, how much would we calve [sic] out? A. About the two hours." (T 185)
The plaintiff's other sister Tammy Smith, also gave evidence. She had much less to do with her brother than Ms Jackson. She provided assistance to the plaintiff while he was living in Ms Jackson's home and later while he was living alone, but it was essentially of a backup nature to Ms Jackson's efforts.
The evidence of both Ms Jackson and Ms Smith was that of loving and concerned sisters. However, some of their evidence (such as claims of vacuuming the plaintiff's home several times a week even though he lived by himself) seemed exaggerated, while other assistance provided to the plaintiff was of the kind that could well have been provided whether the plaintiff was injured or not, such as doing the plaintiff's grocery shopping. Both the plaintiff's sisters were entitled to a 5% discount on their groceries as store employees, and while both denied that this was the reason they purchased the groceries, it would seem common sense for them to do some.
Some aspects of the plaintiff's sisters' evidence indicated a willingness to see the best in the plaintiff, notwithstanding evidence to the contrary. This was particularly the case in relation to Ms Jackson's claim that she did not know the plaintiff had lost his licence for drink driving offences and the minimisation both sisters made of the incident involving the plaintiff's assault on Ms Jackson's partner. Where Ms Patterson, the occupational therapist, has made concessions that the amount of housework the plaintiff's sisters asserted they were doing were excessive, I propose to accept them.

[45]

Past home care

Section 141B of the Act provides: "141B Maximum amount of damages for provision of certain attendant care services (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or (ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires. (6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires. (7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services."
No claim may be brought for periods of time when the plaintiff was in prison or hospital.
The need for home care was for many years the subject of brief observations by orthopaedic surgeons. Following the observations of Basten JA in Boral Bricks Pty Ltd v Cosmidis such evidence is now generally the subject of reports by occupational therapists.
As noted above, the plaintiff relies upon two lengthy reports by Ms Kate Patterson who was cross-examined. Mr McCarthy submits that Ms Patterson's reports should be accepted without any amendment on the basis that she "adhered to her opinion and the defendant made no significant inroads into her opinion" (written submissions, paragraph 62) and that her opinion is expressly supported by Dr Endrey-Walker (written submissions, paragraph 63). Additionally, there was a reference to the plaintiff's need for "domestic help" in the reports of Dr John David and Dr Kai-Lee.
The defendant also prepared a report from an occupational therapist and sought to tender it despite it not being served prior to the hearing. Due to the unacceptably short notice given to the plaintiff I declined to permit the defendant to serve this report, although the deponent was available for cross-examination.
I have, however, treated the plaintiff's occupational therapist's report (particularly in relation to future care issues) with some caution, for the following reasons. First, while reports from occupational therapists are of assistance, it is certainly not the case that no home care award can be made unless such a report is served. The touchstone is always reasonableness, and the evidence of the plaintiff and those members of his family who performed these services is the starting point.
In Schultz v McCormack [2015] NSWCA 330 (albeit in the context of the Civil Liability Act 2005 (NSW)), McColl JA did not accept a submission that the plaintiff had to lead what was called "objective evidence" to support a claim that there was or would be a reasonable need for the gratuitous attendant services to be provided, that had arisen solely because of the injury to which the damages related, and that it would not have been provided to the appellant but for the injury. Her Honour noted at [129] that the trial judge had had the opportunity to observe the plaintiff and her husband in the witness box giving evidence in relation to these issues.
Second, the occupational therapist did not have the benefit of observing just what assistance the plaintiff had over this period from his sisters; she did not meet Tammy at all and Rebecca left before she asked the plaintiff to demonstrate his ability to perform tasks (T 215 - 216). She accepted what the plaintiff and his sisters said without question (T 216) even though, as Ms Jackson acknowledged (T 205 - 207) she had photographed the plaintiff performing a series of tasks that Ms Jackson told the court (and also Ms Patterson) the plaintiff was unable to perform. She failed to pick up indications that the plaintiff was more mobile than he was telling her, such as the kind of car he was driving (she did not, in fact, even ask if he drove: T 231, which I consider a significant oversight) and the presence of a treadmill (T 217). She failed to inquire about his ability to use equipment such as a smartphone to pay his bills (T 232) although she acknowledged that this was significant information.
Third, Ms Patterson made a series of concessions in relation to inaccuracies and overstatements for her past and future home care assessments in this regard. She based her estimates on the plaintiff living half the week with his sister and the other half with a girlfriend, which was completely inaccurate, and may explain the large sums accorded to gardening and related work that the plaintiff never performed in his share accommodation (T 217 - 8). Even when she made inquiries of her own, these were at times unrelated to the plaintiff's actual needs; for example she acknowledged that some of her estimates (such as mowing costs) were not locally based (T 229) or from mowing companies such as Jim's Mowing (T 231) and she used skilled carer rates for a person who would perform such simple tasks as unpacking the plaintiff's grocery shopping (T 230).
At the end of the cross-examination, Ms Patterson agreed: Q. Do you have any knowledge as to how long it would take for a cleaner to come in and clean once week a three‑bedroom unit or a small three‑bedroom house? A. Some cleaners send two people along so then that would make it quicker, but no knowledge is that it depends on the amount of cleaning that they're doing but floors and bathrooms probably an hour and a half to two hours (T 233).
Mr McCarthy's estimate of the number of hours from the date the plaintiff first left hospital (excluding later gaol and hospital time) results in 2,834 hours of service provided by the plaintiff's sisters and that averaging out the number of hours over the final period to be assessed in her first report (7 August 2014 - 21 May 2015, a period of 41 weeks) results in an average of 13 hours of gratuitous domestic assistance per week.
The plaintiff submits that there is no significant variation in the number of hours required between 21 May 2015 and the date the plaintiff moved in to his current home in Warragamba on 29 June (56 weeks) and this would result in 728 additional hours. The plaintiff's care from 29 June to the date of the hearing (24 August 2016) is covered by Ms Patterson's supplementary report as 107 hours (13.3 hours per week), showing the plaintiff still needs the same amount of assistance (or perhaps slightly more) than he did when first released from hospital in 2014. This results in the total of 3,669 hours, totalling $102,732.00.
The defendant has not set out, and the plaintiff has not answered, the detailed reasons identified in the defendant's schedule of damages as the reasons for the reductions in past home care. However, the defendant has squarely raised these issues, based on concessions made by the plaintiff's sisters and Ms Patterson in their evidence, and I propose to deal with each of them in turn.

[46]

28 November 2011 to 26 January 2011

There is very scant evidence about the plaintiff's accommodation for much of his adult life. After he moved to Sydney, he appears to have lived in rented accommodation and then moved to the home of his sister Rebecca a few weeks prior to his release from gaol (as an indication of the general lack of information, his sister told the court she did not know where the plaintiff had been living prior to his coming to live in her home). Although the plaintiff was a good cook and was the barbecue cook for family meals, there is little evidence he did housework while he lived there, apart from tidying the room he occupied.
The plaintiff was obliged to leave his sister's home following charges being laid after he assaulted her husband. For the months prior to the accident the plaintiff was living with about 6 people in a 6-bedroom share or boarding house, in which he shared bathroom and kitchen facilities and there was no shared housework; the only obligation was that he "just cleaned up after yourself [sic]" (T 127). He was not able to drive as his licence was suspended, so his girlfriend drove him around in the car which he owned, for which car expenses he claimed a tax deduction (T 129 - 130).
Mr O'Keefe submits that in these circumstances, Ms Patterson's assessment should be accepted, but should not include any allowance for cleaning, gardening or outdoor maintenance as these tasks were not performed by the plaintiff at all. As the defendant's schedule of damages shows, this reduces the hours to 19.13 hours for 8 weeks.
Mr McCarthy relied upon Ms Patterson's evidence. Ms Patterson was reliant upon the evidence of the plaintiff and his sisters and did not make her own inquiries. She was unaware that the plaintiff had been living in share accommodation (T 217 - 8) where he was essentially only looking after himself. In those circumstances, her estimates were based on wrong information, and the amount to be awarded should be adjusted accordingly.

[50]

Home care from March 2015

This brings me to the defendant's cut-off period of March 2015, this being the time from which Mr McCarthy submits that any reasonable need for assistance falls below the intensity threshold of s 141A, namely 6 hours per week. The plaintiff continues to claim the same rate for the period after the removal of the fixateur as for before.
I am satisfied by the reports of Dr Walker that the plaintiff's fracture was still healing for a period of up to 18 months after his 3 July 2014 surgery. In practical terms, that takes the plaintiff up to the end of 2015, at which time it was hoped that the plaintiff would no longer need crutch. In this respect, I do not accept the defendant's submissions that no allowance should be made.
However, once the plaintiff's fracture united and he had no real need of his crutch (according to Dr Zeman, whose evidence I accept on this point), the situation changed. The plaintiff was able to move around more freely and to perform a number of household tasks of the kind shown in Ms Patterson's photographs. I note Mr McCarthy's submission that these were taken on a "good day", but I prefer the submissions of the defendant that the plaintiff's state of recovery meant that he dropped below the threshold, although I consider that the plaintiff's drop below the threshold did not occur until the end of 2015.
In practical terms, that is a matter of approximately 8 months before these proceedings. The process of dropping below the threshold would have been a gradual one, with good days and bad days. A degree of flexibility is required in this regard. It is not possible to pinpoint when the plaintiff sufficiently recovered so as to fall below the threshold, and his sisters would have continued to provide the same care notwithstanding. Accordingly, I propose to continue the allowance of 8 hours of assistance per week up until the date of the hearing.
As is noted in the final orders, the parties have liberty to bring in short minutes of order reflecting the mathematically agreed sum for all these heads of damages.

[51]

Future home care

The same concept of reasonableness must be applied to claims for future assistance as to past assistance: Dang v Chea (2013) 63 MVR 240 at [38]-[41].
As counsel for the defendant notes in his written submissions at paragraph 100, there is no evidence that family members fail or refuse to continue to provide assistance for the plaintiff in the future.
The plaintiff, however, expressed embarrassment and concern that his sisters spent so much of their time looking after his domestic needs. He said at T 53: "Q. How do you feel about the fact that your family members and friends are taking all this time out of their life to help you? A. I appreciate it ‑ I don't really. I don't like it. Not much I can do about it. Like it's pretty much they're obligated, I suppose."
The plaintiff also said that if he had the money available to him he would replace the service of his sisters with commercial cleaners and gardeners: "Q. Well if you had the money would you replace their services with people who do it for pay? A. Yeah, more than likely, yes. Q. You're already hiring a gardener, a lawnmower guy, would you intend to keep paying him if you had the money? A. Yes." (T 53)
The kind of assistance the plaintiff required in the past and future is set out in the report of Dr Barold, who noted the plaintiff was unsuitable to undertake the following domestic activities following the accident: 1. Loading and emptying the washing machine; 2. Ironing; 3. Cleaning windows or the shower; 4. Moving furniture, vacuuming, sweeping and mopping; 5. Carrying shopping; 6. Gardening and mowing.
However, the parties relied upon the report of Ms Patterson who stated as follows in relation to the plaintiff's future needs: "11.3 FUTURE CARE RECOMMENDATIONS My future care recommendations have been formulated based on Mr Smith's need for care, rather than any situation that he may find himself in. It is not reasonable to expect friends to provide the care Mr Smith needs as a result of his injuries and impairments. Recommendations are also based on the expectation that Mr Smith will have been provided with the equipment and therapy recommendations outlined further in his report. Although these have been recommended to increase his participation in previous roles, his performance will still be limited by on-going upper limb, lower limb and back pain, and reduced functional abilities. For those reasons, equipment and services may increase his independence with some tasks but he will continue to require commercial services to facilitate and encourage his participation in pre-injury tasks. RECOMMENDATIONS From 21 May 2015 onwards: It is estimated that Mr Smith is currently provided with approximately 13.0 hours per week of gratuitous assistance provided predominantly by his sister. In my opinion, Mr Smith requires provision of 15.0 hours per week of commercial care to replace pre-injury contribution to domestic, garden and home maintenance tasks. Recommendations are based on the assumption that Mr Smith will have received the therapy, services and equipment recommended throughout this report. Commercial Services Provider Tasks/Est. Hrs Av. Hourly Rate Est. Av. Cost Per Annum Shopping Personal Care Attendant Assistance to complete grocery shopping tasks including unpacking items - Total - 1.5 hrs/wk $43.25 $3,382.58 Car Maintenance Cleaning car interiors and exteriors, take car for servicing - Total 0.5 hr/wk $1,127.53 Transportation and Community Access Assistance to attend community to run physically demanding errands, including paying bills at post office, assistance to attend medical appointments and record important information - Total - 3 hrs/wk $6,765.17 Domestic Services Domestic Assistant Cleaning tasks sweeping, mopping and vacuuming floors, dusting, wiping cupboards and benches, cleaning out fridge, oven, stove and microwave, clean surfaces, clean windows (3 hrs/wk); Assistance with meal preparation (3.5 hrs/wk;) [sic] Assistance with laundry, ironing, bedding changes (2.5 hrs/wk) - Total 9 hrs/wk $42.38 $19,887.24 Garden Maintenance Commercial Gardener Gardening service to maintain front and back gardens including cutting hedges, pruning plants, removing weeds and sweeping leaves - Total - 0.5 hr/wk $50.00 $2,607.00 Indoor and Outdoor Maintenance Paid Trades and Handyman Assistance with home maintenance including changing light bulbs, moving furniture, sweeping footpath, removing cobwebs - Total - 0.5 hr/wk $55.00 $2,867.70 TOTAL YEARLY COSTS: $36,637.22 p.a.

[52]

I am satisfied that the plaintiff is able to drive to the shopping centre and to carry out small grocery shopping tasks; he does not need assistance in unpacking items of this kind. Nor does he need transportation and community access or garden maintenance.
The figures for the amount of housework done for the plaintiff in the future are excessive. In her evidence, Ms Smith said that she could clean the house within 3 hours and Ms Patterson gave an even lower figure.
The question in those circumstances is whether or not the s 141B threshold can be met. To summarise these issues: 1. Ms Patterson's evidence was that if commercial assistance was required, the plaintiff's three-bedroom home could be commercially cleaned in its entirety in 1.5 to 2 hours per week. I am satisfied, from the material set out in Ms Patterson's report, that the plaintiff is in fact capable of doing a number of tasks himself and any need for commercial help would be for only a small portion of this time. 2. One of the reasons given by the plaintiff's sisters for the amount of assistance required by the plaintiff (and the plaintiff himself gave this evidence) was that the plaintiff's memory had been affected by the accident, and that for this reason, as well as by reason of his ongoing psychiatric problems, he required a degree of motivation and reminding to perform tasks as he might otherwise forget, for example, to complete a cooking task, and was often depressed and in bed. There is no medical evidence that the plaintiff suffers from any loss of memory problems referrable to the accident and, as I have already noted, I am satisfied that the plaintiff's depression was a pre-existing condition. 3. This is not a case where the plaintiff is unable to drive his motor vehicle or unable to get around his home without a crutch. His shopping is done by his sisters, who can obtain a store discount, and this is likely to continue for this reason. His problems with cooking can be remedied by equipment such as a kitchen stool to sit on and a longhandled device to pick up items he drops. I am satisfied that he needs no assistance in these areas.
I am satisfied that the plaintiff requires, at best, assistance with the cleaning of his home in the form of performance of the more difficult tasks, and that this assistance would amount to around one to two hours per week. Given the evidence of the plaintiff's sisters who presently provide care and they intend to continue to do so in the future, I am satisfied that this allowance for gratuitous care could not meet the ongoing threshold for such care to be compensable (Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [47]-[53]), and there is unlikely to be a need for commercial assistance in the future.
There are three other reasons for my determination. The first is that there was a great deal of exaggeration in the amounts claimed on the plaintiff's behalf. The concessions made by Ms Patterson were significant. Where claims of vacuuming the plaintiff's house three or four times a week are made, or inaccurate information about the plaintiff's ability to drive are provided to an expert of the kind Ms Patterson is, it should not be left to the court to try to ascertain how much of the care claim is left after the inflated or inaccurate claims are taken out. I have not accepted the plaintiff or his sisters as reliable witnesses, and the level of exaggeration about home needs is such that I prefer to err on the side of caution.
Secondly, Ms Patterson's style of presentation of report is that she sets out financial amounts for retention of commercial advice, rather than considering simple and obvious solutions. For example, Ms Patterson proposed six 1.5 hour sessions at $175 per hour for an occupational therapist to provide advice about equipment, retraining, home safety, manual handling and memory techniques. It would have been preferable if Ms Patterson had set out, in her report, the kind of information the plaintiff needed so that I could determine why it was necessary for him to be given all this training and advice, and why it would take ten hours to impart it. The equipment in question consists of items like a kitchen stool and vacuum and the "home safety" issues are unexplained. That sort of assistance should not be necessary for a person with the plaintiff's level of disability.
The third is that, in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 the Court of Appeal stated: "[81] The appellant's written submission proposed an allowance of $26 per hour for two hours per week for the remainder of the appellant's life expectancy, being 44.4 years. If that calculation were accepted, there must be a significant reduction for vicissitudes, both to take account of normal ageing processes and to take account of the significant likelihood that the appellant would have required domestic assistance at an earlier stage because of his existing injury. The adjustment is appropriately undertaken by way of a proportionate reduction in accordance with the principles identified in Malec v JC Hutton Pty Ltd. The appellant's calculation produced a figure of $49,111; a reduction of 40% would produce an allowance, in round terms, of $30,000. That is an appropriate figure in the circumstances."
No such adjustment was made here. Mr McCarthy seemed to consider that it was only appropriate to do so where the plaintiff was at an age where such issues were likely to arise. However, as the length of working life set out in the above extract from this decision shows, such a deduction may be relevant even to persons of the plaintiff's age. Were such a deduction to be made, it would bring the plaintiff even further below the threshold.
While I do not propose to make an allowance for future home care, I note the defendant has conceded a sum to purchase home aids to enable the plaintiff to perform tasks in the home. (I note there has also been a concession about the plaintiff needing to undergo a pain management course in order to come to terms with his dependence on Endone, which I have factored into future medical expenses.)

[53]

Equipment

There is no separate heading for equipment in the plaintiff's schedule. All that was claimed was future commercial assistance.
The following equipment was recommended by Ms Patterson: Equipment item RRP Replacement Period (Yrs) Annual Labour Cost Annual Cost Accommodation Toilet surround $83.90 5 - $16.78 Shower stool $79.90 5 - $15.98 Physical Functioning Bed rail $41.90 5 - $8.38 Posture Support Pillow $20.00 2 - $10.00 Height adjustable chair (e.g. Hilite chair) $604.90 10 - $60.49 Handybar $80.05 7 - $11.44 Activities of Daily Living Long-handled reacher $47.90 3 - $15.97 Sock aid $32.90 3 - $10.97 Long-handled shoe horn $8.70 3 - $2.90 Instrumental Activities of Daily Living Kitchen stool $257.50 5 - $51.50 Lightweight vacuum (e.g. Ergo Rapido Electrolux) $219.00 3 - $73.00 Long-handled dustpan (e.g. Kmart Long Handled Pan and Broom) $10.00 2 - $5.00 Raised garden beds (x 2) (e.g. Bunnings: Birdies Garden Bed) $139.00 5 - $55.60 Garden Stool (e.g. Bunnings: Yardworks Garden Kneeler) $27.94 2 - $13.97 TOTAL ANNUAL COST: $351.98

[56]

Future out of pocket expenses

There is only a difference of $10,000 between the parties' estimates as the plaintiff's future medical expenses are of narrow compass.
Dr Walker confirmed that the plaintiff has no future requirement for surgery: "Q. You haven't advised him of any future plans for any more surgery, have you, at this stage? A. No, I mean I ‑ other than if he was going to have some recurrent state of infection. He's got a plate in there. I don't think he'll require posttraumatic surgery on his knee or his ankle in terms of arthritis, but if he was to get an infection, for example, so a patient could have plates in, they could be going along fine and also have a flare infection ..(not transcribable).. If you have something like that then he would need the plate taken out and may need some ongoing treatment. Other than that I can't anticipate any surgery in the future. (T 152)
Dr Walker also confirmed that the plaintiff has no need for physiotherapy or hydrotherapy: "Q. Do you believe that there is any improvement to be gained for this man from ongoing physiotherapy and hydrotherapy? A. I don't think so, after five years, no." (T 155)
All of the doctors agreed that the plaintiff should not continue to take Oxycontin. Dr Walker referred to it, scathingly, as "hospital grade heroin": "I also tell ‑ pretty much every patient who is on OxyContin, short‑term or long‑term, is a bad thing. It's basically heroin. It's hospital grade heroin. It kills more people than, you know, heroin. It's addictive. I don't think it's a long‑term solution to ongoing pain management. If a patient, for example, is on 80 milligrams of ‑ twice a day on OxyContin and you still have terrible pain ‑ it's addictive. It makes them feel terrible. It's not good for their mental health, and so I didn't institute it, and I don't recommend it to patients. There are plenty of my patients on it, and it's not a good thing. Q. In those circumstances, would you be supportive of Mr Smith participating in a pain management program with a pain specialist with a view to ceasing OxyContin? A. Yes, definitely but unfortunately the pain management specialist is ongoing narcotic use and so, yeah, I'm actually the right person and I think it has to be with ‑ you have to have the patient on board. If you don't have the patient on board then, you know, it doesn't help. I would say that somebody needs help him get off it, he needs to be shown other ways of managing pain, but I would say that when you've been on it for a long time like he has the number of patients that get off is like ..(not transcribable).. and there's only so much I can do." (T 151)
Dr Zeman agreed with Dr Walker's views (at 244): "A. Yes. That's usually from the experience in the U.S., where it's also referred to as "Hillbilly heroin" and somewhat derogatively. I think fortunately we don't use it as much and we have other medications but it is a narcotic and like any narcotic you can get an addiction to it." (T 244).
There is little information about what would be involved in terms of any pain management programme for the plaintiff to reduce his OxyContin intake, or as to the cost of any replacement pain medication, if such is required. Ms Patterson, in cross-examination, estimated that the cost would be $8,000 and that is the figure I propose to accept.
There will be expenses in the future of a follow-up nature for the plaintiff's general practitioner. Dr Walker did not say that follow-up visits with him, or x-rays, were required.
Both parties propose a buffer, but in the absence of more information as to the nature and extent of the costs of such treatment (and despite the fact that the onus lies on the plaintiff), I propose to err on the side of caution and award the buffer sought by the plaintiff of $35,000.

Smith v Alone

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Judgment (59 paragraphs)

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Legislation Cited (2)

Cases Cited (40)

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