Turano v Bartlett

Nature of case 1The plaintiff, John Matthew Turano, has brought these proceedings claiming damages against the defendant, Mr Craig Bartlett, for physical and psychological injuries the plaintiff sustained as a result of a motor vehicle accident that occurred at about 10:00am on Tuesday 13 November 2007. 2In that accident, the plaintiff's vehicle was struck head-on by a runaway box trailer that appeared in his path after having veered onto the incorrect side of the roadway. The trailer had beforehand become dislodged from it's mountings on the defendant's vehicle, which had been travelling in the opposite direction to the plaintiff's vehicle. The proceedings are governed by the Motor Accidents Compensation Act 1999 ["MAC Act"].

Issues 3The defendant has admitted liability in respect of the subject accident, however the extent of the plaintiff's entitlement to damages was in substantial dispute in these proceedings. 4Underpinning that dispute the defendant challenged the credibility of aspects of the plaintiff's evidence on a number of bases, including the nature and extent of the claimed injuries, the claimed disabilities, and the effects those matters have had upon the plaintiff concerning his entitlement to damages. The parties were unable to agree on any significant aspect of the plaintiff's claim, including the extent of the plaintiff's out-of-pocket expenses. 5There were significant differences of opinion between the two expert psychiatrists who had been retained by the solicitors for the respective parties to provide opinions on the nature and cause of the plaintiff's psychological problems, including whether the plaintiff had accident-related post-traumatic stress disorder ["PTSD"] and depression. The plaintiff claimed those matters were as a result of the subject accident. The basis for those differences of opinion between the respective experts required consideration for resolution of those differences. Both of those experts gave oral evidence.

Procedural matters 6Despite an estimate of 3 days for the trial, the hearing occupied a total of 10 hearing days. The underestimate was in part due to the plaintiff's state of upset when giving his evidence, and also in part due to the failure of the parties to recognise the utility of arranging for concurrent expert evidence as a means of justly, quickly and cheaply resolving the expert medical issues to be determined: Civil Procedure Act 2005, s 56 - s 58; Uniform Civil Procedure Rules 2005, r 31.19, r 31.24, r 31.26, r 31.35. 7The trial took place against a background of significant procedural delays. The plaintiff's claim had been filed late. There were some 18 procedural listings before the final hearing date was allocated to commence on 20 January 2014. In the meantime, three earlier hearing dates scheduled 13 March 2012, 15 May 2012 and 1 August 2013 had to be vacated as a result of complications associated with medical assessment procedures under the MAC Act. 8In that regard, the plaintiff has undergone numerous MAS assessments and two MAS reviews. In that timeline, there was also an application to the Supreme Court for administrative relief. At the conclusion of evidence in these proceedings, on the 9th day of the hearing, the defendant unsuccessfully applied to have the proceedings referred yet again for a further MAS assessment pursuant to s 62 of the MAC Act.

Credit 9The defendant asserted that the plaintiff was a witness whose evidence should not be accepted without corroboration. The defendant also asserted that for the purposes of obtaining financial gain from these proceedings, the plaintiff had exaggerated the effect his injuries have had upon him. For the reasons that will become apparent in the course of my judgment, I have not accepted either of those submissions. 10In support of those submissions on credit, the defendant relied upon documents, including those assembled as part of the medical assessment process undertaken by successive MAS assessors. 11The defendant also relied upon the content of a series of three collages of DVD video footage, Exhibit "4", Exhibit "7" and Exhibit "18", which showed some of the plaintiff's activities that were observed by insurance investigators in October, November and December 2011, December 2013 and January 2014. For the reasons I shall separately set out, I consider that the DVD footage was unpersuasive as a source of support for the submissions made on behalf of the defendant, to the effect that the case sought to be made on behalf of the plaintiff lacked credibility. 12The plaintiff tendered a diary that had been kept by his former wife at his direction. That diary had been kept on advice, concerning the period December 2007 to March 2008: Exhibit "B", Tab 3, pages 22 to 33. Initially, page 21 of that Exhibit was objected to, and the remainder was admitted without objection. Whilst that page did not form part of the initial Exhibit, a copy of it was later admitted over objection as Exhibit "D". 13That diary was the subject of cross-examination of the plaintiff: T140.8 to T147.8. The defendant suggested to the plaintiff that the diary was not contemporaneous but had been written at a later time than the stated dates. It was further suggested that this had occurred for the purpose of diarising symptoms at those times, the implication being that the plaintiff was not affected by those symptoms as he claimed: T145.5. I accept the plaintiff's evidence as to the falsity of that suggestion: T145.10. 14In final submissions, the defendant made a generalised attack upon the credit of the plaintiff by arguing there was no corroborative evidence called to support the plaintiff's claim that his pre-accident personality had changed as a result of the accident. That attack was in part based on opinion evidence from the defendant's medico-legal psychiatrist, Dr Thomas Newlyn, who considered that the plaintiff had a pre-accident underlying histrionic personality disorder. 15The expert psychiatrist retained by the plaintiff's solicitor, Dr Michael Diamond, found no evidence to support the diagnosis proffered by Dr Newlyn. When scrutinised, Dr Newlyn's opinion was shown to have been based upon an impression for which he called upon his clinical experience, rather than on identifiable factual reasons that could be articulated by him and examined for reasonableness and probity: T601.30 and T602.6. 16In developing the attack on the plaintiff's credit, the defendant submitted there was no explanation for the failure to call "before and after" witnesses. In that regard, it was argued that the plaintiff's ex-wife, his children, his mother, his brothers, his former employers, or anyone who knew him before the accident, could have been called to give evidence of his pre-accident situation. The defendant submitted that the fact such witnesses were not called should lead to the inference that the evidence of these witnesses would not have assisted the plaintiff's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 17In my view that submission proceeds upon the false premise that the plaintiff's evidence has been shown to have required corroboration. In my view, the plaintiff's evidence was capable of being assessed for truthfulness on its face, without the need for corroborative evidence. 18A further false premise underpinning the defendant's submissions concerning the credibility or reliability of the plaintiff's evidence is that the plaintiff's evidence has been said to have been relevantly shown to be in parts unreliable, which, it was said, therefore necessitated that his evidence required corroboration before it could be accepted. 19The aspects of the plaintiff's evidence to which the defendant points in that regard, were portions of the recorded histories in summary form in various medical reports tendered in the proceedings. In my view, that method of seeking to traduce the evidence of a party must proceed with caution and with the requirements of procedural fairness in mind. That is especially so in a case such as this where the evidence of the precise terms of the questions and answers that led to the summaries recorded in the reports, remains largely absent and open to uncertain speculation, and therefore out of reach for a reasoned analysis for the purposes of seeking to draw soundly based adverse inferences in the manner submitted by the defendant: Mason v Demasi [2009] NSWCA 227. 20That need for caution is underlined in circumstances where there was expert evidence that the plaintiff's emotional problems were causing him some cognitive difficulties and where some of the medical examinations upon which opinions were based, were carried out in difficult circumstances due to the plaintiff's emotional state. 21During the trial the plaintiff was observed to give much of his evidence in a state of emotional upset. In that regard, he was defensive when challenged as to the accuracy of his evidence. He was also at times garrulous in his answers to questions, and he had difficulty focussing on the topics on which the cross-examiner sought to engage him. As occurred in medical examinations, at times his evidence went off in tangents to the issue at hand. In the face of persistent attack upon his credit he was at times anxious to emphasise that his evidence was truthful and unembellished. The flow of his evidence was at times interrupted when he was overwhelmed by his emotions. 22The defendant also argued that the plaintiff's demeanour in court was a significant matter that detracted from the credibility of his evidence. In that regard, it was argued that the plaintiff limited his responsive answers to questions that assisted his case, as distinct from answers to questions in cross-examination, where he was, it was submitted, "deliberately unresponsive when he perceived the answer as being unhelpful to his case". 23In my view it has not been shown that the plaintiff's answers to questions put in cross-examination were deliberately unresponsive. The submission to that effect has to be viewed in light of the plaintiff's difficulty in maintaining focus on some of the questions that were asked of him, a phenomenon that also occurred in the course of his evidence in chief, for example, at T167.17. 24It is true that the plaintiff's demeanour in court was at times agitated. He exhibited upset, anger and frustration. He was also resentful of prolonged and repeated questioning in cross-examination. However, those circumstances must also be seen as having arisen against a background of frustration due to the labyrinthine procedural delays that have occurred in the proceedings, including multiple MAS Assessments, MAS reviews, an application to the Supreme Court, and the fact of three previously adjourned hearing dates, as is noted on the court file. 25Also relevant to the consideration of the defendant's submission on the plaintiff's demeanour is medical evidence which suggests that the prolonged procedural timeline and pathway taken for these proceedings to reach finality has had a deleterious effect on the plaintiff's mental health, as was explained in the evidence of Dr Diamond, and which was no doubt influential on the plaintiff's frustration. 26Also relevant to that consideration was the oppositional approach taken by the defendant to the plaintiff's claim and the plaintiff's reaction to the veracity of his claim being doubted over a prolonged and sustained period of time. 27In view of those matters, I therefore find myself unable to accept the conclusion sought by the defendant's submission on the plaintiff's demeanour. That submission appears to me to be overly simplistic, and it fails to take into account the complexity of the matters that were influential on the plaintiff's state of frustration at the time when he gave his evidence. 28Also relevant to the assessment of the credibility of the evidence of the plaintiff, is the unchallenged evidence that the plaintiff has exhibited considerable anxiety and stress concerning his post-accident situation, including problems with his concentration, putting aside for present purposes, the contested issue of whether he suffers from accident-related PTSD, or whether the accident was the cause of his marital problems, a matter that stands to be resolved on a factual analysis and by reference to an evaluation of the conflicting medical opinions. 29Having undertaken those evaluations, my consideration of the preceding matters leads me to conclude that the plaintiff's credibility should not be determined by a demeanour-based consideration, but instead, it should be assessed on a consideration and evaluation of the specific issues upon which his credit was attacked. 30Foremost amongst those issues was the defendant's submitted assertion that the plaintiff gave deliberately untruthful evidence for the purposes of financial gain from the proceedings: T702.43 - T703. In my assessment, there was no direct evidence that sustains such a submission. In my view, neither is there sufficient evidence to compel the drawing of a reasonable inference to that effect. The tenor of the defendant's submission in this regard was contrary to my own impression of the plaintiff's evidence. I therefore do not accept that submission. 31The remaining more specific bases of the attack upon the plaintiff's credit are more conveniently addressed in the evidentiary and procedural context in which they arose, and after a review of the medical evidence to establish the framework for assessment. My reasons for the conclusions reached on each of those matters appear in those places in the judgment that set out the evaluation of those matters, and can be conveniently summarised as comprising the following submissions: (a)It was submitted that the plaintiff claimed to have suffered injuries that, the defendant asserts, have been shown not to have been sustained in the accident: Defendant's written submissions paragraph [9]. My analysis and findings on those submissions appear at paragraphs [198] to [208] of these reasons for decision; (b)It was submitted that the plaintiff's denial of any pre-accident lower back and tinnitus problems is not supported by the clinical records of his treating doctors: Defendant's written submissions paragraphs [10] - [11]. My analysis and findings on those submissions appear at paragraphs [209] to [226] of these reasons for decision; (c)It was submitted that the plaintiff had given incorrect historical accounts concerning his working hours and this was said to have involved deliberate untruthfulness: Defendant's written submissions paragraphs [12] - [14]. My analysis and findings on those submissions appear at paragraphs [227] to [231] of these reasons for decision; (d)It was submitted that the plaintiff gave a deliberately untruthful account of the formation of his friendship with the witness Mrs Theresa Marrapodi, his partner in a recently formed business: Defendant's written submissions paragraphs [12] - [14]. My analysis and findings on those submissions appear at paragraphs [232] to [240] of these reasons for decision; (e)It was submitted that the plaintiff was untruthful in his account of his work situation or plans in that he failed to volunteer to medico-legal examiners the fact that he had business plans with Mrs Marrapodi: Defendant's written submissions paragraphs [15] - [17]. My analysis and findings on those submissions appear at paragraphs [241] to [244] of these reasons for decision; (f)It was submitted that DVD footage taken in November 2011, and between 5 December 2013 and 14 January 2014 showed the plaintiff to have been performing a range of tasks, including working in his own business, which contradicted his evidence in significant respects: Defendant's written submissions paragraph [20]. My analysis and findings on those submissions appear at paragraphs [245] to [258] of these reasons for decision. 32At this point, in summary form, it is sufficient to state that for the reasons that I have set out in the course of my consideration of the above issues, my concluded assessment of the plaintiff's credibility as a witness is that the defendant has failed to make good the attack sought to be made upon his credit. 33I have concluded that the plaintiff has not exaggerated his claim for financial gain, as was submitted by the defendant, and I do not accept the submission to the contrary. After cautiously considering the content and context of the plaintiff's evidence I consider he has given his evidence truthfully, according to the best of his ability, albeit in the face of difficulties with focus, concentration, and difficulties he has in controlling his emotions, including his frustration at the legal process.

Facts 34In the paragraphs that follow, and unless otherwise qualified, as a precursor to my findings on the plaintiff's injuries and disabilities, I set out my findings of fact concerning the plaintiff's background circumstances and medical history, the non-controversial facts surrounding the accident, the plaintiff's complaints of injury, the contemporaneous record of any injuries and early treatment, and the details of the subsequent medical and allied assessments undertaken of the plaintiff.

Plaintiff's background 35At the hearing, the plaintiff was in his 50th year. He was aged 43 at the time of the accident. His secondary schooling ceased at the level of Year 11. His pre-accident work experience has been variously, working in a supermarket, working in his father-in-law's concreting business, working as a construction labourer, and working in fruit shops. Essentially, for many years, the plaintiff had been working in fruit shops. He had aspirations of being a manager or an owner of such a business.

Plaintiff's pre-accident situation 36The plaintiff married in 1985 when he was 21 years of age but he is now divorced, a matter he considers to have been caused by the accident. He has two children, a daughter and a son, who are presently respectively aged 24 and 16. 37There were a number of stressors in the plaintiff's pre-accident background. There is a history of some family difficulties in that in about 2000, following the death of his father, his older brother was said to have perpetrated a substantial fraud on the family finances, which subsequently led to criminal proceedings being brought against that brother. Those circumstances had caused some strain in the plaintiff's marriage, as well as some financial strain for the plaintiff. In those events his wife had left the marriage for about 3 months. The plaintiff suffered a depressive illness in that context and as a result gained weight. However, he was treated successfully with antidepressant medication, and he later worked hard to recoup the financial losses he had incurred due to the fraudulent activities of his brother. 38Another pre-accident stressor for the plaintiff was the loss of some money, said to be several thousands of dollars, which he had loaned to his daughter's former boyfriend, who had subsequently failed to repay that loan. The plaintiff also experienced some interpersonal difficulties with his daughter as she was growing up. 39There was no compelling evidence to suggest that at the time of the subject accident, any of those pre-accident factors were continuing to have any significant adverse effect on the plaintiff's psychological status, or on his earning capacity. If anything, those matters raised the possibility that the plaintiff may have been vulnerable to developing psychological problems when confronted with significant stressors that had the effect of upsetting the equilibrium of his life and his finances.

Pre-accident medical history 40The plaintiff had some pre-accident physical health issues. He had been diagnosed with either type II diabetes or a pre-diabetic condition, which was controlled by diet. It is not clear from the evidence as to when this was diagnosed. In 2005 it was noted that he had hypertension. In that same year the plaintiff was noted to have had an episode of plantar fasciitis in his right foot, which was apparently treated with anti-inflammatory medication. 41On 8 March 2006 the plaintiff's general practitioner noted an instance of central lower back pain without radiation or restriction of movement. There was no other record of any similar pre-accident notations of low back pain. 42On 28 January 2007 his general practitioner noted the plaintiff had some ringing in his ears, or in his left ear, in the context of a sensation of having a blocked right ear and a build-up of wax in both ears. 43The plaintiff also had congenital chorio-retinal scarring in both eyes, which has resulted in a degree of reduced visual acuity. In early 2007 he underwent cataract surgery to his left eye, at which time he received an implanted intra-ocular lens, which subsequently improved the vision in that eye. 44There is no sound basis within the evidence for inferring that any of the foregoing pre-accident health matters, including the plaintiff's eyesight issues, had any lasting deleterious impact upon the plaintiff's pre-accident earning capacity in the industry in which he was engaged, or indeed in similar vocations. 45Furthermore, there was no evidence of the plaintiff having suffered any significant psychiatric problems in the few years or months leading up to the subject accident on 13 November 2007. That said, it is quite possible that pre-accident, by reason of his psychological make-up and life's experiences, he was vulnerable or predisposed to react poorly to significant stressors likely to cause him to suffer psychiatric problems. However, there is no sound basis in the evidence to conclude that before the subject accident, any such vulnerability or predisposition was interfering with the plaintiff's amenity of life, his earning capacity or his functioning. 46On the day of the subject accident the plaintiff was driving to work in order to commence employment in a new position, which had been offered to him several weeks earlier. His new employer had sought him out in order that he would manage a fruit shop at Wattle Grove. This was a forward step for the plaintiff in the context of his ambitions for advancement in his work.

Circumstances of the accident 47The subject accident occurred shortly after 9.00am on 13 November 2007. It occurred suddenly and without warning. At the time, the plaintiff was lawfully driving his vehicle at about 60kph along Elizabeth Drive, Liverpool, when he became aware of the defendant's vehicle, a truck, travelling in the opposite direction. 48In those events the plaintiff became aware of the fact that a box trailer had become detached from the defendant's vehicle, and that the unhooked attachment end of that trailer was on his side of the roadway, following which a forceful impact occurred when the trailer bounced off the median strip and into collision with the front of the plaintiff's vehicle. In the lead-up to the collision, the plaintiff held onto the steering wheel. He was unable to do anything to avoid the ensuing collision. In the impact his head hit the steering wheel as he braced himself in the events of the collision. 49The occurrence of the accident was a considerable shock to the plaintiff. In giving his evidence, he became tremulous and upset when relating those events. He described the event as a "horrifying ... and ... just terrifying experience". He said, and I accept, that he became sweaty when just thinking about the accident. He displayed considerable distress when giving evidence of the events of the accident. 50In the course of clarifying the nature of the collision, the plaintiff was shown a copy of the following photograph of the damage to the front of his vehicle. 51That photograph, comprising Tab 4 of Exhibit "B", provided some indication of the nature and force of the collision. In his oral evidence in that regard, and in the summarised descriptions within various medical reports, it is evident that the plaintiff gave consistent and believable accounts of his feelings of distress and horror with flashbacks over the occurrence of the accident, and concerning the effect that it has had upon him and upon his life. 52The accident has obviously had a shocking and devastating effect upon the plaintiff. It is plain from his evidence that those effects still continue to impact upon him over 6 years later.

Initial assessment and treatment 53The defendant submitted that with respect to physical injuries, the plaintiff "suffered no more than a relatively minor soft tissue injury to his neck and three left-sided fractured ribs at 7, 8 and 9 with minimal displacement". In my view, that submission greatly understates the effect that the accident has had upon the plaintiff. 54The defendant's submissions conceded the plaintiff has sustained a minor abrasion to the head. The defendant argued that the plaintiff had not suffered any injuries to his lower back, to either shoulder or to his right knee. Those submissions will be revisited after I have reviewed the entire fabric of the medical evidence as well as the evidence of the plaintiff. 55The defendant also submitted that "if the plaintiff suffered from any psychological symptoms following the car accident that any such symptoms were insignificant, and did not interfere with his capacity for work". In that regard, the defendant's position was that any psychological problems suffered by the plaintiff related to his marital separation and subsequent divorce, and not as a result of the subject accident. That position was founded upon the opinion of Dr Newlyn, the basis of which requires evaluation, along with the other psychiatric evidence. 56The approach taken by the defendant on the issue of the nature and extent of the plaintiff's physical injuries was to discount the plaintiff's oral evidence in which he gave an account of his injuries. Instead, the defendant relied only upon the contemporaneous records of the plaintiff's injuries. 57Whilst that approach is in some cases warranted, for the reasons that follow, I do not consider this to be such a case. In this case, I consider that approach is an inappropriately overly simplistic one. 58After the collision, when the door of the plaintiff's vehicle was opened, consistent with the nature and circumstances of the collision, he was in shock. When he got out of his vehicle he fell to the ground. At that time he was experiencing breathing difficulties. An ambulance was called to attend. 59The plaintiff's descriptions of the pains he felt after the accident have to be read in conjunction with his state of shock in the immediate aftermath of the accident, and in light of the fact that he initially felt he was gasping for breath, and in circumstances where he thought he was not going to survive the accident. There is little room for doubt that the plaintiff was greatly distressed by the accident at the time, and by his injuries, both from a physical and psychological perspective, and that he was in what he described as being unbearable pain. He had been subjected to a frightening experience and he was experiencing significant pain from his physical injuries. 60The ambulance came to the scene at 9.34am and commenced attending to the plaintiff. The best copy of the ambulance report, Exhibit "E", is in parts difficult to read due to the inclusion of photocopying artefacts despite it being the best copy available. 61It appears that at the accident scene the plaintiff had complained of left rib pain which increased on palpation as well as on inspiration. He was also observed to have had some swelling to his forehead. His respiration rate was recorded to be 19, his systolic blood pressure was recorded to be 150, there was no note of the diastolic reading. It was noted that he was "notensive", which may have been an abbreviation for normotensive. The note is not clear. The plaintiff was under the impression that his blood pressure was very high at the scene. 62The ambulance report contained no notation of any medications having been administered to the plaintiff at the scene. The portion of the ambulance report providing an injury and pain diagram cannot be reliably interpreted because it is in parts unreadable due to the apparent inclusion of photocopying artefacts. 63It was noted in the ambulance report that the plaintiff had declined the offer of ambulance transport to hospital, although this was considered necessary by the ambulance officer who assessed him at the accident scene and offered to take him to hospital. The plaintiff said that after being attended to at the scene, he declined to go with the ambulance, instead preferring to be attended to by his wife, who was only a relatively short distance away. 64Ultimately, the plaintiff's wife took him to Fairfield Hospital after first returning home to close up their house. In my view, nothing turns on the fact that the plaintiff declined the offer of ambulance transport in favour of being transported to hospital by his wife, especially since there was no indication from the ambulance officer's assessment that his injuries were considered to be life-threatening at that time. In my view no adverse inferences against the plaintiff as to the nature or the extent of his injuries arise from those circumstances. 65In assessing the extent of the plaintiff's injuries, the ambulance report must be read in conjunction with the plaintiff's own evidence of the distress he was experiencing at the time, and of him being in considerable pain, which he described generally as being "everywhere": T39.3. 66At Fairfield Hospital, the triage form briefly noted that the plaintiff had been registered at the hospital at 11.26am, and that he was then first seen to at 11.39am on the day of the accident. The medical issues affecting the plaintiff as recorded at the time of triage were abrasions to the head and pain in the left ribs. 67The next recorded time entry in the hospital notes were comments in the clinical notes to the effect that the plaintiff was alert, oriented and had a small wound on his forehead. At that time it was noted that he was also complaining of pain around his upper left chest on inspiration. At 13:10hrs he was sent for an x-ray. At 13:30hrs he was given paracetamol for his pain. The subsequent clinical progress notes recorded the presence of a small wound to the forehead and pain in the upper chest on inspiration. The plaintiff's head wound was attributed to contact with the steering wheel. 68The hospital clinical notes contain two pages of untimed and undated handwritten notes made by an emergency department registrar, who recorded the opinion that the accident in question had not been major, apparently based on the proposition that no death was involved. After noting the plaintiff had not lost consciousness in the accident, confusingly, the registrar's note stated that there was "no head injury, apart from mild trauma to the head by the wheel". The notes made by that registrar also included a notation to the effect that when examined, the plaintiff was slightly short of breath. 69The chest x-ray report in the hospital notes was stated to be a preliminary report. That report stated that no definite displaced [rib] fracture could be seen, 70The plaintiff was then discharged from hospital at 14:34hrs. The hospital discharge summary noted that the plaintiff had seat belt marks over his chest wall and that he had bruises over his left chest wall. It was noted that a chest x-ray had not shown any rib fractures and it was suggested the plaintiff needed observation concerning the possibility of him having a delayed rupture of the spleen which turned out not to be the case. Otherwise, it was noted that the plaintiff was given reassurance, and Panadol for his pain. He was also advised to see his general practitioner for further management. 71Before resolving the disputed question of the actual injuries the plaintiff sustained in the accident, it is appropriate to first review the entire fabric of the medical evidence comprising the medical and allied assessments of the plaintiff in order to assist in the determination of which of the claimed injuries under challenge by the defendant, were on the balance of the probabilities, likely to have been caused by the subject accident.

Changed marital circumstances 72In about January or February 2010, the plaintiff and his wife underwent marital separation. She took the children with her and she later divorced him. The plaintiff attributes the breakdown of his marriage to the change in his personality and behaviour that occurred after the subject accident. He said that the effects of the accident had made him become angry, irritable and he withdrew himself from the relationship because he was in pain and he was upset. That account does not seem improbable. I accept the plaintiff's evidence in that regard. 73In these proceedings, the relevance of the marital breakdown was that it became the focus of an increased level of distress for the plaintiff in the months that followed and then thereafter. The defendant argued that the marital breakdown was the cause of the plaintiff's psychological problems, and not the motor vehicle accident. That is a matter to be determined in the course of resolving the conflicting medical opinions as to the cause of the plaintiff's problems.

Daughter's accident 74In early 2010 the plaintiff's daughter was involved in a motor vehicle accident. That event obviously caused the plaintiff some concern and upset as a parent. The plaintiff disputed that his psychological issues were due to that event: T138.8 - T140.6. That issue stands to be determined by reference to the evidence of the plaintiff and on an analysis of the differing psychiatric opinions.

Subsequent work accident 75On 30 July 2010, the plaintiff tripped or fell on a mat whilst he was at work and injured his right knee. This occurred at a time when he said he was generally not focussed at work: T155.34 - T156.6. That injury was later diagnosed as a fractured patella and some further left-sided rib fractures. This required the plaintiff to have operative treatment and caused him to remain off work on workers' compensation for some months. The defendant argued that the resultant physical and psychological distress from the effects of the knee injury was the focus of the plaintiff's psychological problems. That too is a matter to be determined in the course of resolving the conflicting medical opinions.

Medical and allied assessments 76The plaintiff has been subjected to a great number of medical and medico-legal and allied assessments, including a significant number of MAS assessments. It appears that not all of the reports from those assessments were tendered in evidence. 77In the paragraphs that follow, the chronology of the medical assessments referred to in the evidence is set out as a background to the analysis and factual resolution of the nature and extent of the plaintiff's injuries, the conflicting medical opinions, and the extent of the plaintiff's disabilities. 78On 21 November 2007, the plaintiff saw Dr Steven Zhang, a general practitioner at the Edensor Park Medical Centre. Dr Zhang's note of that consultation included the following details: "... c/o pain along back of neck, left side of chest wall and LUQ unable to sleep at night and 'flush back" (sic) of the accident ... Bruising on left shin ..." [Exhibit "8"] 79Dr Zhang subsequently left the Edensor Park Medical Centre. Later attempts to obtain further information from Dr Zhang revealed that he had no interest in personal injury compensation and he was unable to further assist: Exhibit "B", Tab 26. Later, and at the request of the solicitor for the plaintiff, on 26 August 2009, and after gaining access to his previous consultation notes, Dr Zhang prepared a certificate setting out his clinical findings of that consultation to be that the plaintiff had pain along the back of his neck with restriction of movement, pain in the left side of his chest wall and his left upper quadrant, with large bruising and tenderness to that area. Bruising to the left shin was also noted. He also noted the plaintiff was experiencing flashback to the accident: Exhibit "B", Tabs 26 and 27. 80On 24 November 2007, the plaintiff's general practitioner, Dr Mehmet saw him and noted left rib fractures anteriorly, and "whiplash injury c-spine". 81On 24 November 2007, at the request of his general practitioner, the plaintiff underwent a further chest x-ray which was reported upon by Dr Collis. This revealed fractures of the anterior ends of the 7th, 8th and 9th ribs with minor displacement. 82On 1 December 2007, another general practitioner at the Edensor Park practice, Dr Tjondro, saw the plaintiff and noted "# L ribs ... O/E c/spines mild discomfort midline; full rom No focal neuro signs. T/L spines non tender. Gait normal. Sub ungual haematoma both big toenails ...". The significance of the general practitioner's notation of an examination of the thoracic and lumbar spines requires evaluation in the context of the plaintiff's claim of having sustained an injury to his lower back in the subject accident. 83On 30 June 2008, at the referral of his general practitioner, the plaintiff consulted Dr EM Gregory, a consultant ophthalmologist. He did so because he was concerned that he had hit his head on the steering wheel in the accident, and because he felt that his vision had deteriorated. The plaintiff's concern was that an intraocular lens inserted in his left eye by Dr Gregory in 2007 following cataract surgery might have been adversely affected in the subject accident. Dr Gregory found the plaintiff had no accident-related visual problems. Dr Gregory took the opportunity to correct an unrelated eye problem. 84On 20 and 25 July 2008, the plaintiff consulted Dr N Romeo at the Edensor Park Medical Centre. Dr Romeo recorded the plaintiff's main complaints to be pain on the bridge of the nose, left-sided chest tenderness, low back pain and left shoulder pain. 85On 23 July 2008, at the request of his general practitioner, the plaintiff underwent a CT scan of his facial bones. This was because of a report of injury having occurred to the bridge of his nose. The resultant scan was reported as revealing no abnormality. 86On 4 August 2008, Dr Romeo referred the plaintiff to Dr Ron Bova for an ENT consultation for assessment of his tinnitus which was claimed to have worsened since the accident. There was no evidence from Dr Bova concerning the results of that assessment. 87On 14 June 2009, Dr Romeo referred the plaintiff to Dr Viyjay Maniam for assessment of his persistent low back and left shoulder pains. The timing of the onset of the plaintiff's low back pain was not recorded in the referral or in the tendered notes. At that time, Dr Romeo considered that the plaintiff should not carry out heavy manual work. He considered the plaintiff's problems had not yet stabilised and he expressed a guarded prognosis. 88On 17 June 2009 the plaintiff attended upon the practice of the Edensor Park Medical Centre seeking the whereabouts of Dr Zhang regarding assistance with his motor vehicle accident in 2007. That enquiry led to Dr Zhang's medical certificate dated 26 August 2009, as earlier described. The subsequent notes of that practice are very sparse, and relate to the plaintiff's attendances on 11 May 2010 and 11 July 2010: Exhibit "8". 89On 30 June 2009, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad took a history of the plaintiff having been diagnosed at hospital with "four fractured ribs, pain in his neck, back and a head injury". That historical summary was not entirely correct in that there was no hospital diagnosis of rib fractures, these, namely 3 fractures, were found later, and there was no record in the hospital notes of a diagnosis of back injury. The defendant challenged Dr Conrad's opinion on the plaintiff's back problems being accident-related on the basis that Dr Conrad had relied upon an incorrect history. 90On 1 July 2009, the plaintiff was examined by Dr Vijay Maniam, an orthopaedic surgeon. In addition to the three fractured ribs on the left side, Dr Maniam diagnosed a soft tissue injury to the anterior chest wall, a musculo-ligamentous strain to the cervical spine, and inter-vertebral disc protrusion at the level L5/S1, and severe impingement of the left shoulder. Dr Maniam considered that these problems stemmed in large part from the subject accident. Dr Maniam's evidence was not the subject of cross-examination. 91On 7 July 2009, at the request of Dr Maniam, the plaintiff underwent radiological imaging tests comprising a left shoulder ultrasound, which was reported as showing sub-deltoid bursitis with bunching, and a lumbar CT scan, which was reported as showing degenerative changes at multiple levels particularly affecting the lower apophyseal joints. 92On or about 15 November 2009, the plaintiff was examined by Dr Tai Tak Wan. Dr Wan prepared a report of that date. It formed part of the MAS review process but it was not tendered in the evidence: Exhibit "B", Tab 44, p 596, report p 8. 93On 18 November 2009, the plaintiff consulted Dr K Sellathurai, a general practitioner, complaining of decreased vision in his left eye, ringing in his left ear, constant neck and back pain, left shoulder pain and restricted movement, and pain over the sites of rib fractures. Dr Sellathurai described the plaintiff as having been involved in a frightening motor vehicle accident, and noted the plaintiff was troubled with constant headaches and post-concussion syndrome. He described the plaintiff as being well-motivated and continuing to work. He expressed a guarded prognosis. 94On 12 February 2010, at the request of his general practitioner, the plaintiff commenced a series of fortnightly therapy consultations with Ms Ishana Harrysunker, a clinical psychologist. At the time of preparing her report on those consultations, she noted that the plaintiff was taking prescribed anti-depressant medication. Ms Harrysunker cited the history of the plaintiff's accident-related psychological problems as follows: "On a mini mental state examination, Mr Turano experienced difficulty with concentration, recall of events and attention. Mr Turano stated that after the accident, he has difficulty remembering things and that he finds it hard to focus. Mr Turano stated that since the accident, he becomes angry and frustrated easily due to chronic pain to his shoulder and upper back, constant ringing in his left ear and experiencing intense headaches, for which he takes Panadol. Mr Turano mentioned that since the accident, he has suffered hypertension (elevated blood pressure). Due to his constant anger outbursts, yelling and depressed mood, Mr Turano mentioned that his wife and children moved out of the family home in January 2010." 95Significantly, Ms Harrysunker stated that the plaintiff "... also requires psychological treatment to help him cope with the recent separation from his wife and children." The clear implication of that need for treatment was that the underlying problems described as the need to cope with chronic pain, depressed mood and anger, was an accident-related issue. 96On this occasion, Ms Harrysunker performed tests on the plaintiff, which revealed severe levels of anxiety and stress. Those test results, which were not the subject of challenge, were reported in the following terms: "The Depression and Anxiety Stress Scale (DASS) was used to determine Mr Turano's levels of stress and anxiety. The DASS is a self report measure which assesses the severity of the core symptoms of anxiety and stress and allows the development of a profile contrasting Mr Turano's response to the normal population. The Depression Scale measures the extent to which an individual is in a state of low self esteem, low mood and motivation. Mr Turano's score on the Depression Scale indicates a rating of a severe level of depression. Mr Turano is currently taking antidepressant medication. On the Depression Scale, Mr Turano reported: an inability to experience any positive feeling, cannot seem to get going, nothing to look forward to, feeling sad and depressed, losing interest in everything, life isn't worthwhile, feeling worthless, difficulty being motivated, cannot get enjoyment out of things he does, feeling down-hearted and blue, and perceiving life as meaningless. The Anxiety Scale measures the extent to which an individual anticipates future negative events and fears an immediate threat of harm. Anxiety is likely to develop when an individual confronts performance demands that are significant to the individual, a person has low self esteem or high performance demands that are testing his or her self esteem, a person perceives a high probability of failure and a person has a low threshold of the activation of the fear response system. Mr Turano's score indicates a severe level of anxiety. On the Anxiety Scale, Mr Turano reported: perspiring noticeably, dryness in the mouth, breathing difficulty, difficulty relaxing, using a lot of nervous energy, being in a state of nervous tension, feeling terrified, worried about situations in which he may panic, and experiencing trembling. The Stress Scale measures the extent to which an individual experiences an enduring state of high arousal followed by persistent difficulty in meeting troublesome demands of life. Mr Turano's score indicates severe levels of stress. On the Stress Scale, Mr Turano reported: getting upset by trivial things, a tendency to over-react to situations, finding it hard to wind down, difficulty relaxing, using a lot of nervous energy, feeling irritable, finding it hard to calm down after something upsets him, and becoming agitated easily. Psychological treatment included Cognitive Behaviour Therapy to challenge unhelpful thinking styles and to improve mood, trauma counselling to assist Mr Turano to cope with his changed circumstances after the accident, especially his marriage breakdown and alienation from his children. Mr Turano had also commenced antidepressant medication to reduce his levels of stress, depressed mood and anxiety. The combination of psychotherapy and medication has resulted in an improvement in Mr Turano's moods, outlook in life and has reduced depressed feelings. Mr Turano is coming to terms with his wife's separation as he strongly believes that they may reconcile in the future. However, he misses his children and feels isolated and lonely living by himself." 97Those findings provided a useful background framework to assist in achieving an understanding of the plaintiff's presentation when he gave his evidence in these proceedings. 98Ms Harrysunker's unchallenged opinion was that as at April 2010, the plaintiff's depression was the result of the subject motor vehicle accident. 99On about 8 March 2010, the plaintiff saw Dr MA Chaudhary, a consultant psychiatrist, at the referral of his treating general practitioner. The defendant tendered an unsigned letter from Dr Chaudhary dated 8 March 2010: Exhibit "20", Tab 2. Dr Chaudhary recorded a history of the plaintiff having family issues, including the fact that the plaintiff's wife had left him some 4 weeks previously. This was in apparent connection with a reported change in the plaintiff's behaviour, in which he had been described as being angry, abusive and aggressive, with violent outbursts, and being unable to handle the pressure he was under "at the time". The particular time to which that comment was directed was not specified. 100Dr Chaudhary's letter to the general practitioner made no mention of the occurrence of the motor vehicle accident, or any relationship between that event and the plaintiff's reported changed behaviours, which were the subject of Dr Chaudhary's letter. The defendant placed great reliance on this letter in order to base the contention that the plaintiff's complaints of psychological problems were not due to the motor vehicle accident, but were instead due to disharmony in the plaintiff's marriage. 101The defendant's submission to that effect was unpersuasive because in my view it could not be reasonably said that Dr Chaudhary's relatively short letter to the general practitioner represented a full or detailed analysis of the underlying causes of the plaintiff's presenting psychological problems at that time. 102On 12 April 2010, the plaintiff underwent a MAS assessment by Dr Graham Pittar, a consultant ophthalmologist. That assessment concluded that the plaintiff's vision had not been adversely affected by the subject accident. 103On 3 May 2010 the plaintiff underwent a MAS assessment by Dr Mark Burns, whose assessment was that the plaintiff's soft tissue neck problems and rib fractures were due to the subject accident. Dr Burns used the contemporaneous medical documents to conclude that the plaintiff's complaints of shoulder, thoracic and lumbar spine problems were not due to the accident. On the same basis, he concluded that the plaintiff's lower extremity problems were not due to the subject accident. In this latter regard, it is not clear as to whether Dr Burns had been provided with documentation of the plaintiff having suffered an injury to his left shin. Dr Burns made reference to the plaintiff exhibiting abnormal illness behaviour, which was not defined. 104On 2 June 2010, at the request of his solicitor, the plaintiff underwent a psychological assessment by Mr Gerry Wenzel. He was of the opinion that the plaintiff's psychological presentation of agitation, distress, and his diagnosis variously described as chronic or severe post-traumatic stress disorder characterised by symptoms of flashbacks, avoidance and arousal, were attributable to the subject motor vehicle accident. 105On 28 June 2010, at the request of the defendant's CTP insurer, Allianz Australia Insurance Limited, the plaintiff was examined by Dr Thomas Newlyn, a consultant psychiatrist. Dr Newlyn stated: "HISTORY OF CURRENT PSYCHIATRIC INJURY Date of Injury: Tuesday, 13 November 2007 Systems involved: Psychiatric. Signal event: I was travelling on Elizabeth Drive in the middle lane. On the opposite side of the road there was a truck pulling a trailer. The trailer separated from the truck, crossed the road and the connection to the truck went into the front of my grill. I had the steering wheel in my hand and my head hit the steering wheel very hard. I couldn't breath, I was in total shock and thought I was going to do die. I called my wife and the ambulance came. My wife took me to Fairfield Hospital. I went home and later I was diagnosed with 3 cracked ribs. Present problems: I always had the mental scarring I had from the accident. I was edgy nervous, irritable and couldn't sleep. I had flashbacks to the accident and I thought I was dead. There was shock and horror. I discussed it with my wife and then she left me 5 months ago. After the X-rays the doctors didn't want to know. Problem evolution: The emotional problem has stayed with me all the time and didn't go away. I have nothing. That is why I am taking legal action. No one cares about me mate." 106In his oral evidence, Dr Newlyn explained that the above text that appeared under the respective headings of signal event, present problems and problem evolution, were quotes from the account given to him by the plaintiff, and which he had typed on his computer during the consultation. 107On the cited history provided by the plaintiff, Dr Newlyn considered the plaintiff had a psychogenic pain disorder and did not meet the criteria for diagnosis of a depressive disorder. Dr Newlyn concluded that the plaintiff's symptoms could not be attributed to the motor vehicle accident, but were instead related to the plaintiff's separation from his wife. Dr Newlyn also suggested the plaintiff had an underlying personality disorder which was influential on his presentation. At that stage, Dr Newlyn did not identify or label the suggested personality disorder, and he described the plaintiff as having developed an adjustment disorder that he considered related to the plaintiff's separation from his wife. 108On 30 July 2010, the plaintiff suffered his fall at work, in which he injured his right knee and left ribs. 109On 3 August 2010, the plaintiff consulted his general practitioner, Dr Marinucci, for problems relating to his right knee injury at work on 30 July 2010. Dr Marinucci's handwritten notes for consultation between that date and 6 November 2013 were tendered by the defendant: Exhibit "9". 110The notes relate principally to the plaintiff's knee problems, eg: 2/9/10 Depressed crying financial hardship 20/1/11 Depressed & anxious about financial problem. - prospect of losing home - demands by estranged wife - physical injuries Wife has AVO Episodes of crying 12/2/11 Panic attacks 24/11/11 Boss has told him not to attend work 23/3/12 Alopecia aventa probably due to stress 5/2/13 Not sleeping well anxious depressed Tremor ... 19/2/13 ... very anxious related to ongoing compensation case 12/6/13 Depression, anxiety Discussion on how to cope with current problem(s) 10/9/13 Problem of excess weight Under great stress 6/11/13 ... Agitated; Stressed at times

111The defendant's construction of those entries in Dr Marinucci's notes was that the psychological components were not accident-related, a matter that requires determination, especially in the light of the oral evidence given by Dr Diamond. This suggests that limited weight be placed on short-form clinical notes, to the effect that it was unclear from the notes as to how much consideration the general practitioner had given to the full effects of the plaintiff's post-traumatic stress disorder: T414.40. 112On 13 August 2010, at the request of his solicitor, the plaintiff was examined by Dr Michael Diamond, a consultant psychiatrist. In his detailed report dated 24 August 2010, Dr Diamond observed that the result of his mental state examination of the plaintiff revealed that the plaintiff was agitated with an anxious affect, depressed mood and that his presentation was consistent with a biological depressive illness. Dr Diamond noted that the content of the plaintiff's presentation was focused on his distress and in particular on his experience of pain. Dr Diamond made a primary diagnosis of Chronic Post-Traumatic Stress disorder. He considered that the plaintiff's prospects for recovery were poor at that stage, and he considered the plaintiff's prognosis to be guarded. Dr Diamond later saw the plaintiff again on 20 September 2013. 113When Dr Diamond gave his oral evidence, in cross-examination, he rejected the proposition that the plaintiff's marital problems were the cause of those psychological conditions. He explained that the marital problems were related to the effects of the motor vehicle accident and should not be viewed in isolation from that event: T412.1. That analysis will be revisited in greater detail later in these reasons. 114On 23 August 2010, at the request of his general practitioner, the plaintiff consulted Dr Peter Walker, a consultant orthopaedic surgeon, concerning his work-related left knee injury, which was described as a bi-partite patella with bruising following a fall. Until that stage, no patellar fracture had been detected. 115On 24 August 2010, at the request of Dr Walker the plaintiff underwent a whole body bone scan. The report of that imaging test revealed an undisplaced vertical fracture through the lateral portion of the right patella with recent factures of the 8th and 3rd ribs on the left side. Degenerative changes in the acromio-clavicular joints, the left wrist, the left foot and a left finger, were noted, as were features of mild bilateral rotator cuff tendinopathy. 116On 7 October 2010, Dr Walker reviewed the plaintiff and noted that the plaintiff was barely able to walk. He recommended an arthroscopic removal of the offending bone fragment followed by significant rehabilitation. It appears the plaintiff had later undergone that procedure. 117On 14 October 2010, the plaintiff underwent a MAS assessment conducted by Professor Michael Fearnside, a consultant neurosurgeon, in connection with the head injury he suffered in the subject accident. In the terms of the MAA Impairment Guides, which he cited, Professor Fearnside considered that the plaintiff did not meet the criteria for assessment of mental status or emotional and behavioural impairment. The effect of that assessment seems to have been overtaken by subsequent medical assessments. 118On 6 December 2010, the plaintiff underwent a psychiatric assessment by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh concluded the plaintiff's presentation was consistent with a diagnosis of chronic post-traumatic stress disorder caused by the motor vehicle accident. 119On 9 January 2011, Ms Serena Cauchi, a clinical psychologist, wrote to the plaintiff's general practitioner, expressing her concern about the plaintiff's rehabilitation and his emotional state. Ms Cauchi noted the plaintiff was exhibiting levels of depression, anxiety and stress, and was being subject to financial pressures from an insurer and from his estranged wife. Ms Cauchi suggested the plaintiff undergo a psychiatric assessment. 120On 6 February 2011, Dr Marinucci wrote a letter to an entity identified as "International SOS": Exhibit "12". The content was not explained in the evidence. The letter addressed a series of questions which were not in evidence. Dr Marinucci referred to the plaintiff's right knee problems, and difficulty with work as a shop assistant. He concluded his letter as follows: "15. He is under treatment by psychologist for PTSD which is quite appropriate at present. 16. On a long term basis he would be considered TPD due to physical only. At present PTSD is considered as contributing to his inability to work as his current injury has worsened his underlying PTSD for which he had previously been able to work under." 121On 1 September 2011, the plaintiff was psychiatrically examined by MAS Assessor Lewin, and MAS Assessor Professor Dinnerstein, for the purposes of a MAS Review. That review panel had before it the competing medico-legal psychiatric opinions of Dr Diamond and Dr Newlyn. The MAS review panel noted that whereas Dr Newlyn was of the opinion that the plaintiff had an Adjustment Disorder, a pain condition and a personality disturbance, Dr Diamond was of the opinion that the plaintiff had a Chronic Post-Traumatic Stress Disorder and Major Depression. The review panel also had before it the report of Ms Harrysunker which described the plaintiff as having evidence of anxiety symptoms, depressive symptoms and post-traumatic symptoms of anxiety. 122After further examining the plaintiff and analysing relevant aspects of his history, including the presenting psychological symptoms, the MAS review panel observed that the plaintiff's persisting post-traumatic symptoms of anxiety referred specifically to the motor vehicle accident. Although the MAS review panel noted that some of the details of the plaintiff's history may not have been entirely reliable as a result of the plaintiff's distressed and agitated state, the MAS review panel considered there was no evidence of deliberate dissimulation on the part of the plaintiff. 123Significantly, in its deliberations, the MAS review panel concluded that the subject motor vehicle accident was a cause of the plaintiff's Post-Traumatic Stress Disorder and Major Depression, and that as a result, the plaintiff has satisfied the assessment impairment threshold of a total whole person impairment of greater than 10 per cent. 124On 31 October 2011, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Newlyn. At that time, the plaintiff reiterated his previously stated emotional problems that he claimed had emanated from the subject motor vehicle accident. He also recounted the fact that his wife had left him in association with what he described as a worsening of his problems since the subject motor vehicle accident. Dr Newlyn noted that the plaintiff reported considerable ongoing anger, and upset at having to be reviewed by Dr Newlyn. 125Dr Newlyn concluded that the plaintiff met "the diagnostic criteria for the principal diagnosis of Pain Disorder Associated with Psychological Factors with most symptoms related to the work accident of 30 July 2010". He considered that his 28 June 2010 diagnosis of adjustment disorder had resolved by the time of the work accident in July 2010. The particular reasons for Dr Newlyn arriving at that view were not clear from his report. 126Dr Newlyn went on to say that he considered the plaintiff "exhibits personality disorder behaviour that results in exaggeration of disability when in an assessment": Report, p 16. 127The interaction in the consultation with Dr Newlyn on 31 October 2011 was, in Dr Newlyn's view, characterised by non-compliance on the plaintiff's part. Dr Newlyn noted that at the interview, the plaintiff had apparently refused to provide information and asked to leave the assessment interview as soon as possible: Report, p 9. 128The particular topics or questions that were the subject of such refusals, were not identified in the evidence. In these events, I consider that Dr Newlyn's recorded history in this report must necessarily be regarded as being incomplete because, for whatever reason, the plaintiff apparently refused to give information to Dr Newlyn when he was requested to do so. 129Apparently, there was no follow-up action in that regard, such as for a formal request or application for the plaintiff to comply with the requirements of a medical examination, with or without sanctions. 130In those events, Dr Newlyn formed the view that the plaintiff's current complaints relate to the workplace injury of July 2010, and not to the motor vehicle accident of November 2007, which in his opinion had resolved by the time of the work accident in 2010: Report, p 11. Dr Newlyn's detailed reasons for arriving at that view were not apparent in his report, a matter that is relevant to determining the weight to be placed on that aspect of Dr Newlyn's opinion. At the time of writing his report dated 31 October 2011, Dr Newlyn considered the plaintiff's pain disorder to be chronic in nature. 131Dr Newlyn stated that he considered the plaintiff's history unreliable: Report, p 11. His reasons for that view must be examined. 132As a result of him forming that view, he then went on to review a number of documents, and he utilised his previous opinion dated 28 June 2010 as a basis for providing his second report: Report, p 12. 133Dr Newlyn's reasoning and methodology of assessment of the plaintiff will be the subject of a separate analysis in conjunction with a comparative analysis of Dr Diamond's opinions. 134On 14 November 2011, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Brian Noll, a consultant orthopaedic surgeon. Dr Noll noted the plaintiff's current physical complaints at that time to be neck pain, left shoulder pain, left sided chest pain and low back pain. Dr Noll found no objective clinical abnormality in relation to the affected regions described. He considered what he described as a considerable functional component to the plaintiff's presentation, with "probable amplification of his complaints". Dr Noll also made reference to non-organic findings and non-dermatomal distribution of diminished sensation in the plaintiff's left lower extremity. There was no discussion provided by Dr Noll of the significance of the plaintiff's psychological complaints to those aspects of his own opinion. 135In his conclusions, Dr Noll seems to have placed importance on the opinion of Dr Burns to the effect that the plaintiff exhibited a significant amount of abnormal illness behaviour throughout the physical examination carried out by that doctor. 136In stating his own conclusions, Dr Noll referred to the absence of contemporaneous medical evidence to indicate that the plaintiff had sustained intrinsic injuries to his shoulders and his thoracic and lumbar spines. The assumption that is implicit in that method of injury evaluation is that those complaints under consideration would necessarily have been evaluated and documented at an early stage, and that therefore, the contemporaneous records would be complete and entirely reliable in that regard. 137On 16 November 2011, at the request of his solicitor, the plaintiff was re-examined by Dr Conrad. In his report of that consultation Dr Conrad made reference to the plaintiff's difficulty in concentrating, and he questioned whether the plaintiff was suffering from cognitive problems as a result of a head injury. He suggested the plaintiff undergo psychometric testing for possible mental state impairment. 138From the perspective of his own specialty, Dr Conrad reiterated that he considered the plaintiff had residual chest pain at the sites of the healed rib fractures, as well as chronic neck and back problems, and left shoulder problems, for which further radiological imaging was recommended for diagnostic purposes. It is unclear as to whether those recommended investigations have been followed through and undertaken. The defendant challenged the historical basis for those findings. 139On 15 December 2011, at the request of his solicitor, the plaintiff was assessed for medico-legal purposes by Dr Philippa Harvey-Sutton, a consultant occupational medicine physician. She considered the plaintiff's cervical spine injuries, his rib fractures, his post-traumatic stress disorder and his major depression to be referrable to the subject accident. Whilst she considered the prognosis for the physical injuries to be good, she deferred to psychiatric opinion on the prognosis of the plaintiff's psychiatric conditions. 140On 5 April 2012, at the request of the solicitor for the defendant, Dr Newlyn prepared a supplementary report commenting upon some surveillance footage of the plaintiff's activities, and upon an accompanying surveillance report. 141Based upon that material, Dr Newlyn modified his previously expressed opinion and stated that his clinical diagnosis of Pain Disorder would no longer apply however he felt the plaintiff would continue to meet the criteria for the diagnosis of a personality disorder. Those altered views of Dr Newlyn were not based on any clinical assessment of the plaintiff. The basis of those altered views and the differences in the views within the medical and allied evidence will be explored in the course of reconciliation of those views. 142On 12 February 2013, the plaintiff underwent a further MAS assessment by Dr Alan Jager, a consultant psychiatrist. After reviewing a considerable amount of medical information and carrying out an assessment of the plaintiff, Dr Jager concluded that the plaintiff was suffering from post-traumatic stress disorder caused by the subject accident. Dr Jager considered that the plaintiff was affected by bi-polar disorder. He concluded that absent any evidence to the contrary, a postulated bi-polar condition had been aggravated by stress associated with the subject accident. There was no other evidence in support of that latter view. 143Notwithstanding his view that the plaintiff had a pre-accident bi-polar condition, Dr Jager's assessment was that according to the MAS assessment protocols, the plaintiff did not have any assessable pre-existing psychological impairment, presumably including from the postulated bi-polar condition. 144On 12 March 2013, Dr Marinucci referred the plaintiff for psychological treatment to Ms Esther Tang. The basis of the referral was adjustment disorder with anxiety and depression. The referral was in a short handwritten form, and also stated "His problem is related to loss of job recent divorce". That notation has to be read with the caution that was identified by Dr Diamond in his oral evidence: T414.40. 145On 28 August 2013 at the request of the defendant in these proceedings, Dr Jager's assessment was the subject of a MAS medical assessment review by a panel of psychiatrists, namely Dr Samuels, Dr Mason and Dr Alper. That MAS review, which had been opposed by the plaintiff, concluded that the plaintiff had an adjustment disorder with mixed anxiety and depressed mood. That assessment resulted in a finding that the plaintiff had a total whole person impairment of greater than 10 per cent, thus again confirming his entitlement to damages for non-economic loss in these proceedings. 146On 18 June 2013, at the request of his solicitor, the plaintiff underwent a further psychological assessment by Mr Wenzel. In addition to taking a history of the plaintiff's work accident in 2010, Mr Wenzel noted that at the time of his re-assessment, some 5 years and 7 months since the motor vehicle accident, the plaintiff was still waking at night, trembling and sweating in response to a nightmare of an airborne trailer coming towards him. 147Mr Wenzel noted the plaintiff presented in a severely agitated and distressed manner. He also noted the plaintiff remained prone to severe depression and disturbed sleep due to him experiencing regular nightmares and intrusive thoughts, as well as images relating to the motor vehicle accident. He considered that the plaintiff's presenting concentration and other cognitive impairments were secondary to the presenting psychological problems. 148On 20 September 2013, at the request of his solicitor, the plaintiff was re-examined by Dr Diamond. After reviewing the plaintiff's history since he was last seen on 13 August 2010, Dr Diamond saw no evidence of a pre-existing psychiatric illness and stated that he could see no basis for a pre-accident diagnosis of a personality disorder: T380.34 - T380.47. In that regard, Dr Diamond disagreed with the opinion of Dr Newlyn. There was no sign of such a disorder in the plaintiff's pre-accident employment history: T399.40. 149Dr Diamond gave consideration to the assessment by Dr Jager to the effect that the plaintiff had a pre-existing bi-polar disorder and stated that the grounds for such a diagnosis were difficult to understand. 150In light of Dr Diamond's analysis of the suggested bi-polar disorder, taken together with the fact that Dr Jager's report provided no reasons for that view, and that his opinion in that regard was prepared without the requirement of having to comply with the Expert Witness Code. In those circumstances, the cited component of Dr Jager's opinion to the effect that the plaintiff was said to have a pre-existing bi-polar disorder should carry very little weight. 151Dr Diamond considered that the effects of the plaintiff's left knee injury occurring in 2010 was no longer a contributing factor to his mental state following appropriate treatment. In his oral evidence Dr Diamond said that he considered the knee injury had run its course. Dr Diamond reiterated his opinion that the plaintiff's overriding and consistent psychiatric injury was the Chronic Post-Traumatic Stress Disorder that arose directly as a result of the subject motor vehicle accident. He considered that the prolongation of the proceedings had been unhelpful to the plaintiff's condition. 152On 23 October 2013, at the request of the solicitor for the defendant, the plaintiff was reassessed by Dr Newlyn, who said that he had used his reports dated 28 June 2010, 31 October 2011 and 5 April 2012 as the basis for the templates for this further report. For the purpose of preparing his report, Dr Newlyn stated that he had also reviewed the MAS panel certificates of Assessor Jager dated 19 February 2013, and the MAS review panel certificate of Dr Samuels, Dr Mason and Dr Alper, which was dated 28 August 2013. 153Dr Newlyn obtained a history from the plaintiff to the effect that his claimed accident related problems were getting worse, together with the claims that he was suffering and that he was distraught. He noted the plaintiff was on a trial of psychopharmacology. Dr Newlyn stated that the plaintiff had told him that he had plenty of anger, that he was depressed and sad because he had happened to have been on the road at the time of the accident. Dr Newlyn recorded that the plaintiff had ruminated on why he had been the one injured, and that he had flashbacks to memories of the accident. He also recorded the history that the plaintiff dreamt about the accident, and that being questioned about it made him sweat. 154Dr Newlyn stated that in the latter consultation, the plaintiff had become unco-operative, and refused to answer specific questions. In light of the plaintiff's anger and lack of co-operation, Dr Newlyn agreed in his oral evidence that the consultation in question was somewhat dysfunctional. He nevertheless opined that based upon his previous assessments, the plaintiff "... has a histrionic presentation and that the complaints are likely to be greater than the disabilities." 155In preparing the 23 October 2013 report, Dr Newlyn was asked to express his opinion on the relationship between the plaintiff's complaints and the accident. He responded in the following terms: "My opinion is unchanged from 2011. My colleagues who assess[ed] Mr Turano in August 2013 diagnosed an Adjustment Disorder with Anxiety and Depressed Mood and histrionic personality traits. My diagnosis remains that of a Pain Disorder and a Histrionic Personality Disorder that was not caused by the motor accident". [Emphasis added] 156It is unclear as to which colleagues Dr Newlyn was referring to because a review of the tendered materials did not reveal any diagnosis by his colleagues of the plaintiff having "Adjustment Disorder with Anxiety and Depressed Mood and histrionic personality traits" in the terms as stated by Dr Newlyn. [Emphasis added] 157It seems that the only available conclusion on the evidence is that the colleagues to whom Dr Newlyn was referring in identifying the above diagnosis were the members of the MAS review panel, namely, Dr Samuels, Dr Mason and Dr Alper: Exhibit "B", Tab 44. 158Given that position, when the resultant MAS review panel report and certificate dated 10 September 2013 is read, it becomes plain that Dr Newlyn has erroneously attributed to the MAS review panel the diagnosis of the plaintiff having "... histrionic personality traits" when in fact he is quoting his own opinion and he has conflated the MAS review panel opinion with his own opinion in that regard, a matter that I consider to be of some significance on the question of the reliability of his evidence. 159The MAS review panel report did refer to Dr Newlyn's opinion dated 28 June 2010 in which he stated his view the plaintiff had a histrionic personality: Exhibit "B", Tab 44, p 594, MAS review panel report 10 September 2013, p 8. 160However, at no stage did the MAS review panel adopt Dr Newlyn's formulation as quoted above. In that regard, Dr Newlyn's report gives a misleading impression. That is a matter that raised a doubt as to the reliability of Dr Newlyn's analysis.

Resolution of conflicting psychiatric opinions 161Dr Diamond and Dr Newlyn each gave extensive oral evidence in which they explained the process by which they had arrived at the opinions they expressed in their respective reports. Those differing opinions will be the subject of the evaluation that follows. Unfortunately, the experts did not give their evidence concurrently. 162Due to the challenging manner of the plaintiff's presentation at the interviews conducted by those experts, they have approached their analyses in different ways. 163To differing degrees, Dr Newlyn encountered hostility and agitation from the plaintiff at his successive interviews. In my view, this limited his opportunity to elicit and explore details and relevant aspects of the plaintiff's history. I gained the impression that Dr Newlyn found that he was unable to effectively engage with the plaintiff, and this severely limited the nature and extent of his assessment. 164Dr Newlyn therefore felt it was a more reliable process for him to look to the documentary materials provided to him in order to undertake his analysis of the plaintiff's psychological issues. That process has in turn led to a limited and simplistic analysis of some key historical events affecting the plaintiff. 165This takes on some significance when regard is had to Dr Newlyn's explanation as to how he prepared his reports. In that regard, he explained that in his interviews with the plaintiff he had worked on a pre-prepared template on his computer, which he altered by typing into the template during the course of his interview with the plaintiff. Without intending any criticism of Dr Newlyn's preferred approach to report writing in that regard, that process seemed to have had its inherent limitations, including affecting the degree to which he had sustained engagement with the plaintiff in discussion on key matters or events. 166In contrast, although Dr Diamond also encountered difficulties in his interview with the plaintiff, he persevered in exploring a detailed history with the plaintiff and as a result obtained a much more detailed history, as is evident from his reports and from his handwritten notes of his interviews with the plaintiff: Exhibits "26" and "13". This was in contrast to Dr Newlyn's more formulaic templates: Exhibits "P", "Q" and "R". 167Those circumstances suggest that Dr Diamond's analysis provides a more reliable basis for a professional psychiatric assessment and for reaching more reliable conclusions as to the nature and cause of the plaintiff's psychological problems. 168An important example of this was the differing approaches taken by the experts with regard to the relevance and analysis of the issue of the breakdown of the plaintiff's marriage, which occurred in either January or February 2010. 169Dr Newlyn first saw the plaintiff on 28 June 2010, and he had available to him the short letter from Dr Chaudhary dated 8 March 2010 that focussed on the matters set out in Exhibit "B" at Tab 2, and summarised at paragraphs [99] to [100] above. 170Dr Diamond saw the plaintiff some 6 weeks after Dr Newlyn, on 13 August 2010. Whereas at that time Dr Newlyn saw the plaintiff's marital issues as a focus and cause for his distress, Dr Diamond was able to pursue a wider analysis by exploring the genesis of the plaintiff's accident-related behavioural problems that had affected the plaintiff's relationship with his wife, and which preceded the breakdown of the marriage. 171That insight enabled Dr Diamond to conclude that the plaintiff's marital breakdown should not be viewed in isolation, but should instead be seen as an aftermath of the plaintiff's changed behaviour following the effects of the motor vehicle accident upon him. This was in contrast to Dr Newlyn's views, in which he did not make that analysis. 172On that issue, I prefer Dr Diamond's more detailed reasons, analysis and conclusions. 173Another reason for preferring Dr Diamond's approach to the analysis of the nature and cause of the plaintiff's psychological problems compared to Dr Newlyn's opinions was that Dr Newlyn's oral evidence gave rise to doubts about his analysis, on account of his acknowledgment of a number of omissions of detail, or inadequately expressed statements that he acknowledged were contained in his reports. Examples of those matters appear at: T569.15; T569.27; T570.45; T571.10. 174Dr Newlyn also acknowledged that he struggled to come up with his commentary on the plaintiff's presentation, and he acknowledged that aspects of his report could have been more clearly written: T586.36; T588.43. 175A further matter that caused me to doubt the reliability of Dr Newlyn's opinions on the nature and cause of the plaintiff's psychological problems was his approach to the question of the diagnosis of the plaintiff with Pain Disorder. 176In that regard, in my view, an unexplained and unresolved tension arose between Dr Newlyn's 5 April 2012 opinion, in which he specifically revoked his earlier diagnosis of Pain Disorder as being no longer applicable, and his 23 October 2012, report in which he stated that his opinion remained unchanged from 2011, when in fact he had expressly changed that opinion on 5 April 2012. 177In identifying that tension I have considered but rejected the possibility that what Dr Newlyn was seeking to convey in his 2013 report was that he had re-embraced his 2011 opinion. I am not prepared to speculate that this was so where Dr Newlyn did not specifically give that explanation. If that is what he meant, his reasons for returning to his earlier view were not stated and I am not prepared to rely upon an incomplete reasoning process to reach such an inferred conclusion. 178That unresolved tension was raised with counsel for the defendant in final addresses at the end of the 9th day of the trial: T688. In response, on the following day, on behalf of the defendant, it was argued that there was no relevant inconsistency: T690 - T692. This was said to be the case because Dr Newlyn's opinion of 31 October 2011 related to the plaintiff's complaints concerning his workplace injury, and not to the motor vehicle accident. 179For the reasons that follow, I find that argument unpersuasive. 180When the history section of Dr Newlyn's report of 31 October 2011 is examined, it is clear that the argument sought to be made by the defendant is not supportive of the submission made. The examination in question concerned the motor accident claim: Report 31 October 2011, p 2. The history provided by the plaintiff related to that claim, namely, "Before the accident I was alright and since the accident all went. Why did the guy do this to me. He laughed my life away": Report 31 October 2011, p 4. 181The history then continued, "Before the accident I was a loving father but after the accident I had never ending dramas": Report 31 October 2011, p 8. Dr Newlyn further recorded the history of the plaintiff being unable to concentrate on tasks as he could before the motor accident: Report 31 October 2011, p 8. 182Although in October 2011 Dr Newlyn recorded a history of significant pain from the plaintiff's 2007 motor accident as well as from the 2010 work accident (Report 31 October 2011, p 9), it is difficult to see how Dr Newlyn arrived at the opinion that most of the plaintiff's symptoms related to the work accident of 30 July 2010: Report 31 October 2011, p 11. This is particularly so given that Dr Newlyn did not manage to obtain answers to questions relating to the plaintiff's problems in 2011, and where he specifically quoted the plaintiff as saying to him "You are all trying to stuff me. I don't have to keep repeating myself, I will answer you once, and if you repeat I am leaving": Report 31 October 2011, p 3. This suggests dysfunctional, angry and unreliable communication between the plaintiff and Dr Newlyn. 183For Dr Newlyn to have reliably formed the view that the majority of the plaintiff's problems related to the work accident, it would be expected that Dr Newlyn could provide differential and supporting reasons for that view. Such reasons are absent from his report dated 31 October 2011, contrary to the requirements of the Expert Witness Code: UCPR Sch 7 cl 5(1)(c). 184In his 2011 opinion (at p 16) that the work accident was the plaintiff's main problem, Dr Newlyn seems to have focussed on the plaintiff's statement "I broke my right knee at work I haven't been able to work" and the statement "my emotions are worse since the [2010 work] injury" and his "review of the documents". This history was in the context of the plaintiff having become angry and avoidant during the consultation with Dr Newlyn. Those circumstances may well have had the effect of deflecting further questioning. 185Accepting that may well have been the case, the result has been that Dr Newlyn did not explain the extent of the worsening of the problems in terms of a pre-work accident baseline in order to provide an understanding of his reasons for concluding that most of the plaintiff's psychological problems were due to the work accident and not the motor vehicle accident. 186Dr Newlyn's first report confusingly included a reference to the plaintiff's motor vehicle accident as a "workplace incident". That comment appeared in the draft, Exhibit "Q", p 6, and in the final edited version: Report 28 June 2010, p 5. That erroneous reference was also replicated in the final report at pages 6 and 7. In his oral evidence, Dr Newlyn acknowledged this was an error: T533.21-35. 187That was not the only error or infelicitous expression that Dr Newlyn acknowledged in his evidence, for example, at T586.36; T588.43. 188Whilst these matters may, on one view, appear to be minor, and whilst Dr Newlyn removed the "work incident" references from his subsequent reports, those matters and the template based nature of the drafting of his reports raise a doubt as to the accuracy of Dr Newlyn's analysis and, taken together with the limited extent of his reasons for his opinions, this provides a further basis for preferring the reasons for opinion of Dr Diamond. 189Also of some significance is that Dr Newlyn's analysis at that point does not explore the possibility of there being a causal relationship between the physical and psychological effects of the motor vehicle accident on the plaintiff and the advent of the plaintiff's marriage breakdown. This was in contrast to Dr Diamond's more detailed and plausible analysis. 190The tension in Dr Newlyn's opinions to which I have referred in my view remain unresolved and this is a matter that must be taken into account in assessing the reliability of his evidence. 191A further matter that compels me to prefer the evidence of Dr Diamond to that of Dr Newlyn is Dr Newlyn's explanation of his differing views as to whether the plaintiff had a diagnosis of a histrionic personality disorder. Several matters arise for comment on that evidence. First, it seems to have been based on a relatively sparse factual analysis. Secondly, when the reasoned basis for the view that such a disorder was present was explored with Dr Newlyn for clarification of the basis of his opinion, it became apparent that his reason for holding the view the plaintiff had a histrionic personality disorder was his "clinical experience": T601.30 and T602.6. He did not explain how he used his clinical experience to reach that conclusion. 192Given that the Expert Witness Code in UCPR Sch 7 cl 5(c) requires experts to state reasons for opinions, I considered Dr Newlyn's stated reasoning in that regard to be unpersuasive as it could not be rationally explained in order to enable it to be evaluated. I therefore considered that aspect of Dr Newlyn's opinions to be unpersuasive and this was a further indication of unreliability: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21. 193In that regard it is also noteworthy that no other psychiatrist who examined the plaintiff and whose reports are in evidence recorded an opinion supportive of Dr Newlyn's suggested diagnosis of histrionic personality disorder. 194When the basis of Dr Newlyn's opinions was examined, it ultimately became clear that his views on the non-accident related causes of the plaintiff's presenting problems was in part due to the dysfunctional nature of his interview with the plaintiff, and in part due to non-exploration of some of the details behind the plaintiff's presentation and statements. 195Of particular significance was the answer given by Dr Newlyn at T602.26. There, he was asked to consider a condensed version of the plaintiff's history that was more in keeping with his evidence in the proceedings rather than the limited history obtained by him in consultation with the plaintiff. In that context, he agreed that on the basis of that assumed evidence, the plaintiff's psychological problems were more referrable to the subject accident than his formulation of some underlying disorder. 196For the above reasons, I therefore prefer the views of Dr Diamond to those of Dr Newlyn.

Consideration of specific credit issues raised by defendant 197In the paragraphs that follow, I set out my consideration of the credit issues raised by the defendant's submissions, as foreshadowed at paragraph [31] above.

Credit submission of claim for injuries not sustained 198The defendant submitted the plaintiff claimed to have injuries that have been shown not to have been sustained in the accident and this must have adverse credit consequences for the plaintiff in the proceedings. 199Whilst it is true that the ambit of the plaintiff's claim of injuries sustained in the accident was widely particularised in the second further amended statement of particulars, I do not consider that of itself to raise a significant credit issue. Instead, the individual claims made in the particulars require a simple factual evaluation before acceptance or rejection. 200The two matters of relevance that emerge in this context are the plaintiff's claim of an ENT injury resulting in tinnitus in the left ear, and a soft tissue injury to the right ankle. 201In the context of the plaintiff having received a bump to his head in the collision sufficient to cause a small wound to the forehead, it is not inconceivable that he may have perceived that he had an ENT injury causing him to suffer tinnitus. The history recorded by Dr Tjondro on 1 March 2008 was of a blocked nose and ringing in the ears for the previous 3 months: Exhibit "8". That would place the commencement of the complaint to around the time of the accident. Therefore, in my view, this does not create a relevant credit issue. 202That said, where the tinnitus in question has been described as a condition that comes and goes, in the absence of specific medical evidence causally linking such a complaint to the accident, the plaintiff's complaint of tinnitus, whether pre-existing but worsened, or entirely due to the accident, should be characterised as not proven. That is a different analysis to the more positively asserted characterisation advanced by the defendant stating that the claimed injury has been shown not to have been sustained. In my view, no relevant credit issue arises on this point raised by the defendant. 203In the first examination of the plaintiff by his general practitioner, Dr Zhang, on 21 November 2007, some 8 days after the accident, it was noted that the plaintiff had bruising to his left shin. That is a different injury to a claim of injury to the right ankle. That said, where the evidence indicated the plaintiff had pain "everywhere" after the accident, in the context of a significant impact, I do not consider it either fair or appropriate to categorise a claim of injury to the right ankle as having been shown not to have been sustained, so as to compel a finding that the plaintiff's credit has been shown to have been damaged. 204The assertion by the defendant that these two matters raise credit issues has to be considered in light of the plaintiff's evidence on those matters. Neither of these two matters featured large in the plaintiff's evidence, and he has not sought to describe either of these matters as ongoing complaints. That must be weighed in his favour on a credit analysis especially where it has been alleged that the plaintiff has exaggerated the extent of his accident-related problems. 205Accordingly, I decline to view the particularised claims of tinnitus and right ankle problems as reflecting adversely on the plaintiff's credit. If I be wrong in that conclusion, in any event, it seems to me that these two unproven matters are of very little significance to a credit assessment in the context of more overwhelming injuries and disabilities causing pain and distress. 206In reaching that conclusion, I have not overlooked the possibility that the plaintiff's post-accident psychological state may have caused him to experience a degree of distortion or magnification of some of his symptoms, as has been suggested in some reports. 207However, consistent with the assessment of the MAS review panel on 12 January 2011 to the effect that there was no evidence of deliberate dissimulation on the part of the plaintiff in the presentation of his psychological problems (Exhibit "B", Tab 41, p 17 of report, p 554 of the exhibit), and Dr Newlyn's view on that issue as discussed in his oral evidence at T562.25 - T563.10; T589.47 - T590.10, I do not consider the plaintiff was, to use the various expressions employed in the evidence, consciously dissimulating his symptoms, or "bunging it on". 208In the evidence of Dr Newlyn, as cited in the preceding paragraph, he identified the possibility of the plaintiff "talking-up" his disabilities as distinct from a factitious presentation, the latter involving deliberate deception. I did not gain the impression that the plaintiff was "talking-up" his problems, but rather, in the face of persistent attack on the credibility of his account, both in the medico-legal setting, where he described some assessing doctors as laughing at him, and in cross-examination, understandably, the plaintiff was both upset by the subject matter under scrutiny, and at the same time, anxious to say that he was being truthful in his account. Given that context, I did not consider that he was exaggerating, as has been claimed by the defendant.

Credit submission concerning denial of pre-accident low back problems and tinnitus 209The defendant submitted the plaintiff's denial of any pre-accident lower back symptoms and tinnitus is not supported by the clinical records, and that this has been shown to be incorrect on viewing those clinical records. The consequence was submitted to be damaging to the plaintiff's credit in these proceedings. 210In support of those submissions the defendant points to Exhibit "8", which comprises a note by Dr Mehmet recording a complaint by the plaintiff of lower back pain on 8 March 2006, some 20 months before the subject accident. 211The defendant also points to a complaint by the plaintiff of ringing in both ears to Dr Hanna at the Edensor Park Medical Centre on 28 January 2007, and again to Dr Shanmugam at the Edensor Road Family Medical Centre on 1 February 2007, some 9 months before the subject accident: Exhibit "8"and Exhibit "B", Volume 2, Tab 29. 212What strikes me about both of those matters is that they were isolated events which were distant in time to the accident, and have not been shown on the records to be ongoing complaints or problems that continued to affect the plaintiff up until or nearer the time of the accident. 213Dealing first with the low back pain submission, when the transcript is examined for the asserted denials by the plaintiff of pre-accident lower back symptoms, it seems to me that there is a problem with the defendant's submission, which has overstated the position shown in the evidence. Dr Mehmet's records contained a note of centralised low back pain without radiation and without restriction of movement: Exhibit "8". The plaintiff was cross-examined on that matter at T115.19 - T116.37 and T119.15 - T120.26. 214The evidence relied upon by the defendant to assert the denial of pre-accident low back pain, was in fact expressed by the plaintiff in far less certain terms than an outright denial. 215In that regard, the plaintiff's evidence was that he thought before the accident his back had been "okay ... I don't know": T115.26. He said he didn't think he saw a doctor about his back before the accident: T115.35. When pressed, he said he could not recall seeing Dr Mehmet about low back pain before the accident: T116.16. He conceded that in his work in the fruit market before the subject accident, he may have had "a muscle spasm or something when you do physical work, and just - your, your back hurts", and for which Panadeine Forte may have been prescribed. 216In that context he acknowledged he may have seen a doctor for that, but he could not recall having done so: T118.17 - T118.27. He also acknowledged he may have had some day-to-day soreness due to tired muscles from his work duties: T119.32 - T120.2. That evidence falls short of the denial of back pain that the defendant had submitted was the case. 217The plaintiff specifically denied the suggestion that his answers, related to questions challenging his recollection of not having had pre-accident low back pain, were tailored so as to not damage his case. I accept that denial: T117.48. 218As to the 8 March 2006 record of a complaint of lower back pain, the clinical record actually states "low back pain centralised no radiation full rom (range of movement)". The plaintiff was prescribed Panadeine Forte to be taken 6 hourly for that problem. There was an ambiguous entry for both the prescription of, and the cessation of, Voltaren Rapid tablets on that date. Voltaren was apparently ordered to be ceased due to the plaintiff's hypertension. 219The context of the plaintiff's complaint of low back pain some 20 months before the accident, without further similar notations of that problem in the lead-up to the date of the accident, also has to be seen in light of his employment in a fruit market where lifting would be expected, and where occasional episodes of back pain of the muscular kind described by the plaintiff might also be expected to be incurred. 220Turning then to the tinnitus issue, the plaintiff's pre-accident complaints of tinnitus, or ringing in the ears, were in the context of the observation by the general practitioner of wax build-up in the plaintiff's ears and a sensation of a blocked right ear, and slight redness in the ears, together with the prescription of Keflex, which I infer from the notes to have been the oral antibiotic prescribed for that problem at the consultation referred to by the defendant. 221The evidence the defendant relies upon in support of the tinnitus submissions appeared in the transcript of the plaintiff's cross-examination at T120.30 - T122.1. Several matters within that tract of evidence are worthy of comment. 222First some of the answers given by the plaintiff were interrupted by further questions (T120.32; T121.15). Secondly, some of the questions were interrupted by the plaintiff speaking (T121.2; T121.4; T121.12; T121.27; T121.34). Those matters led to a disjointed discussion on the issue where some of the answers were incomplete. 223Thirdly, when the questions and the plaintiff's answers are read as a whole, it becomes plain the plaintiff's recollection of tinnitus problems was uncertain. His initial denial of pre-accident ringing in his ears, at T120.38, was clarified in the question that followed, when he was asked whether he was certain, at which time he said he was not. This led to a confused discussion punctuated by interruptions, and when he ultimately gave the question proper consideration, he said he recalled seeing a doctor for ringing in the ears, but could not remember whether it was before or after the accident: T121.35 - T121.47. 224Fourthly, when considering the evidence of the plaintiff from the viewpoint of a credit analysis, it must be borne in mind that at the time the plaintiff was upset and voluble. In the face of problems with focus, concentration, and the plaintiff's confusion on this point, the analysis of the plaintiff's credit on this issue takes on a different characterisation. 225Given the specificity of the entry in the notes as to the juxtaposition of the complaint of tinnitus with a wax build-up and an infection, and his lack of a certain recollection on the matter, in the absence of explanatory expert evidence about tinnitus, I am not prepared to infer or find that the plaintiff's argued denials of having had tinnitus before the accident as reflecting poorly on his credit. In my view, at best, this matter shows the plaintiff had an incomplete or forgotten recollection concerning an isolated past event. 226In my view, for the above reasons, no adverse credit findings should be made on account of the plaintiff's denials of pre-accident recorded episodes of lower back pain or in relation to a sensation of ringing in the ears.

Claim of incorrect historical accounts of working hours 227The defendant submitted that the plaintiff's credit should be seen to be adversely affected by incorrect and unreliable accounts he has given regarding his working hours over time. That submission, appears to me to be overstated. 228Whilst there were some inconsistencies in various historical accounts as to the plaintiff's working hours over time, that of itself is not out of the ordinary as working hours may generally be susceptible to variations as and when the employer and the workload requires. 229Furthermore, the submission under present consideration makes no allowance for factors intrinsic to the plaintiff's post-accident problems. These include the plaintiff's psychological turmoil and cognitive difficulties related to his PTSD, which has remained extant throughout the post-accident period over which the defendant has sought to criticise the plaintiff's account of his working hours. 230I addition to that factor, the following matters appear to be relevant: (1)When the plaintiff was cross-examined about his work, his answers were not fully developed, for a number of reasons. For example, in part this was due to his anguish and distress. Another example was the cross-examiner's interruptions of the plaintiff's attempt to answer in a qualified way. In that regard, at T125.31, the plaintiff was trying to answer a question about his working hours as follows: "A. About, I think about 30 hours, 35 hours, something like that just -" (2)At times the plaintiff was having difficulty expressing himself, he was describing a wide range of working hours, for example at T136.35, he said: "No, I wasn't working, sir. I was doing 35 - 38 to 40 hours, 45 - 38 to 45 hours a week sir." (3)The context of the plaintiff's range of variations in his answers as to his working hours has to be considered in light of the plaintiff's evidence that he was staying back for extra work that had to be done to the best of his ability when he was in physical pain and mental anguish: T136.48. (4)The above examples are not exhaustive, but they nevertheless illustrate that the plaintiff's history of his working hours has to be viewed in the context of the plaintiff's cognitive problems, including his recollection as to dates. In that context, the plaintiff said there were times when he worked long hours, probably including Saturdays, if he was rostered to do so: T164. 9; (5)When assessing credit, histories summarised in medical and other reports are to be treated with caution when being considered as a potential source of critical comparisons: Mason v Demasi [2009] NSWCA 227, at [2]. 231Accordingly, I consider that the defendant's submissions concerning the plaintiff's account of his working hours takes on a far more benign significance than the construction which the defendant seeks to portray.

Claim of untruthful account of friendship with Mrs Marrapodi 232The defendant submitted that the plaintiff deliberately provided untruthful histories concerning his friendship with Mrs Marrapodi. 233In support of that submission the defendant argued that rather than being someone with whom he had occasional close contact with each month at church, the plaintiff's relationship with Mrs Marrapodi was sufficiently close that he intended to enter into a joint business venture with her. 234In developing that submission, the defendant referred to Exhibit "5", which showed that on 1 August 2013 the plaintiff and Mrs Marrapodi were appointed as directors of a company named J & MT Enterprises Pty Ltd, which became active on 4 August 2013, with the aim of trading from Shop 32, Minto Market Place in Minto. 235The focus of the defendant's submission was not based on the evidence in the sense that the reference to the plaintiff having had an association with Mrs Marrapodi at a church was not the subject of evidence. That was a matter raised as a conflation of events described in the opening address by the plaintiff's counsel: T5.6. The evidence given in the proceedings did not reflect that juxtaposition. 236The plaintiff in fact met Mrs Marrapodi in the course of their common employment at Campbelltown Fresh Fruit Market, as was stated in his evidence in chief: T75.21. He had earlier worked with her brother in the fruit shop industry: T197.21. It was in that connection that she offered to assist him with a share in the business that she was planning to open: T76.40. The relationship was limited to one of friendship: T83.32. 237There was an indirect reference in Dr Diamond's report as to the plaintiff having met Mrs Marrapodi at a local Baptist Church. That was in Dr Diamond's report dated 27 September 2013, which recorded an updated history: Exhibit "B", Tab 40, p 4 - p 5; Exhibit p 511 - p 512. The portion relevant to the plaintiff's work situation was as follows: "Current Events Mr Turano told me he was now 48 years of age. He said he lived in the same rented room that he had occupied when I last saw him. He said very recently he had stopped working and had walked away from a job at Moorebank the previous week. He said it had all become too much for him and he felt he could no longer keep going. He said he remained irritable and easily upset. He said he felt nervous and unhappy. He said ultimately he no longer wanted to be here, referring to suicidal ideation. He said he felt he had no benefit from living. I asked him specifically about plans for the future including work plans and he said that he expected he would work in the future but not at present. His account of day-to-day living was marked by irritability and dismissive comments. He said he had no life of any sort. He said he had tried to be a man. He tried to keep going. He lived alone. His relationship with his wife deteriorated further and they are now divorced. His son Vince is now 16 and at school and his daughter Tina is 23 or 24 and works as a hairdresser as far as he knows. He no longer has contact with them. He said his social contact was at a local Baptist Church where he attended about once or twice a month. There was a female friend there called Theresa who was supportive to him. There was no romance involved. He no longer attended the group at the Wesley Centre on a regular basis but occasionally had contact. His main outings were limited to going out for meals or collecting takeaway food. He usually ate on his own. He made no regular arrangements. He had no regular friendships. He had no urge to socialise. He felt self-conscious and distressed. He spoke of the awareness of being under surveillance. At one point he was at a cafe ordering a pizza on his own. He saw a man recording him on video. It seems he approached the man and asked him what he wanted. On another occasion he was sitting at a McDonalds having a hamburger and being filmed. He said when he was at work performing his usual light duties he was aware of being under surveillance. He said on another occasion at night someone came to his rented premises and spoke to the landlady saying they were from the police. He rang the local police and asked them whether they wanted anything from him. They had no knowledge of him. Nevertheless his landlady believed that he had some sort of criminal involvement and it set him back significantly because he felt like a criminal. He was imploring and disinhibited. He asked me "What am I doing wrong mate?". He said "Was it wrong to go out to buy food?". He said he no longer felt any wish to socialise. It was just to do the things that he had to do. [Emphasis added] 238Exhibit "13" comprises Dr Diamond's handwritten notes of the relevant consultation. At page 10 of those notes the following appears: "Friends - Baptist Church. (female symbol) friend Theresa supportive. No romance." 239That was not an issue taken up with Dr Diamond in his evidence. 240In my view, on the history summarised in Dr Diamond's report, it would be unsafe and unsound to base an adverse credit finding against the plaintiff on the summarised description of the plaintiff's association with Mrs Marrapodi in the context relied upon by the defendant: Mason v Demasi [2009] NSWCA 227. This is particularly so since this was not a topic canvassed with either the plaintiff or with Mrs Marrapodi.

Claim of failure to volunteer future business plans 241The defendant raised as a credit issue the submitted failure of the plaintiff to volunteer to medical examiners, some of the factual details that emerged in his evidence concerning his future work plans. 242In the absence of satisfactory evidence that sufficiently detailed questions along those lines were in fact asked of the plaintiff so as to call for such disclosures, I consider that such a submission should not be accepted. On the evidence, I am not satisfied that the plaintiff deliberately avoided answering questions along those lines. 243At the times the defendant suggested the plaintiff had deliberately avoided disclosing such matters to medical examiners, the plaintiff's particular future work plans pointed to by the defendant were only embryonic in nature, and far from fully formed. A number of things had to occur before the business plans in question came to fruition. If he had actually been working and failed to disclose such a fact, that would result in a different characterisation of the non-disclosure. 244The defendant had become aware of some of the details of those business plans before the hearing, and possibly, for forensic reasons, refrained from seeking particulars of those matters. In my view the circumstances do not warrant the credit conclusion sought by the defendant. My reasons for that view will be taken up in further detail in setting out the background to my findings concerning the assessment of the plaintiff's claim for loss of earning capacity.

Significance of DVD footage and surveillance evidence 245The defendant arranged for insurance investigators to undertake surveillance of the plaintiff's activities on multiple occasions over the course of 29 days. The total time the plaintiff was under surveillance on those occasions is not known. This has resulted in a total of some 90 minutes of film being tendered on three discs: Exhibits "4", "7" and "18". 246Those Exhibits comprise a series of collages of DVD footage resulting from surveillance of the plaintiff between 2011 and 2014. In date order, the content of that footage is described as follows, including my assessment of the significance of that footage to the issues raised in the plaintiff's case. 247Exhibit "18" comprised a collage of DVD footage totalling about 22 minutes, taken over a period of some 15 days, involving some 16 or more segments, which were neither numbered or marked by time frames. They are therefore difficult to describe in cross-referenced detail. 248In my view, the scenes shown in Exhibit "18" are of minimal, if any relevance, to an assessment of the plaintiff's credit. They provide no substantive basis for traducing the plaintiff's case, especially having regard to the explanatory evidence of Dr Diamond, which I accept, namely that the material did not cause him to substantially alter his previously expressed opinion: T383.14 - T383.25. Dr Diamond stated that he got the picture of the plaintiff performing at work not far from what he had been doing when Dr Diamond assessed him. 249In essence, the scenes shown in Exhibit "18", taken on 31 October 2011, 4, 7, 9, 14, 15 (x2), 16, 17, 20, 21, 22, 24, 26 and 27 November 2011, variously show the plaintiff's car parked outside premises, and at work. In those sequences, the plaintiff was shown to be, variously, walking, talking and gesticulating as he talks. He was shown carrying boxes of uncertain contents and weight, bending, talking to the driver of a forklift, drinking from a cup whilst walking, and combing his hair on several occasions whilst looking at reflective surfaces. There is also a grainy scene on 17 November 2011 which shows him in his car, parked in darkness for some minutes, before alighting, and going to work at Joe's Fruit Market. 250Exhibit "4" comprised a collage of numerous disjointed segments of DVD footage totalling about 54 minutes taken over the course of 11 days, namely 1, 3, 5, 6, 9, 10, 12, 18, 20, 21 and 22 December 2013. Unlike Exhibit "18", this DVD contained numbered frames. The paragraphs that follow adequately sum up the content of that Exhibit. 251The first sequences show the plaintiff at Minto Mall at a time when it was a construction site. He is seen wearing a safety vest and speaking on a mobile telephone, then walking to his car. This was a site inspection of the café under construction. The plaintiff denied giving instructions concerning the works or supervising the works. I accept that denial. 252The remainder of the scenes variously show the plaintiff's car parked in the car park of the premises at Minto Mall from a very early hour, and the presence of the plaintiff at the premises carrying out a number of activities. Those activities involved sitting and eating in the café, walking around, talking to customers, waving towards the camera, standing behind the counter, wiping tables, carrying coffee to customers waiting at tables, cleaning debris from tables, smiling, standing around, clearing rubbish, gesticulating to passers-by, straightening up chairs, carrying a milkshake or a similar drink to a table, standing behind the counter, either mopping or wiping the floor, carrying some cake on a plate, siting and reading a newspaper, serving a portion of cake onto a plate and handing it to a waiter to take it to a table, walking in the car park and driving. 253In my view, nothing in that DVD footage undermines the diagnosis arrived at by Dr Diamond and in the light of Dr Diamond's comments at T383.14 - T383.25, I do not consider what is shown in that footage to be contradictory of the plaintiff's evidence on his case. 254Exhibit "7" comprised a series of DVD sequences totalling some 14 minutes taken on 11, 12 and 14 January 2014. 255Those sequences variously show the plaintiff's vehicle at the Minto Mall Car Park early in the morning, the plaintiff walking, walking around the café talking to staff and customers, pushing a shopping trolley, making some order on the serving counter, arranging some cleaning materials, wiping down a table and some chairs, walking to the café whilst holding some newspapers and standing behind the counter of the café, carrying a plastic bag containing the day's takings to his vehicle at the end of the working day and driving his vehicle. 256When properly understood and considered in the light of the medical evidence, in my view nothing shown in Exhibits "4", "7" and "18" materially contradicted the evidence of the plaintiff, or any other witness, whether lay or expert, on credit issues or otherwise. In my assessment, the individual segments of the DVD and the DVD footage taken as a whole, is of benign significance to the assessment of the plaintiff's credit. That footage does not require or support an adverse credit finding against the plaintiff on any aspect of its content. 257In coming to those views I note that the MAS review panel took the view that the DVD footage it was shown did not provide much information on the plaintiff's mental state, although it provided evidence of some physical capacity: Exhibit "B", Tab 44, p 599, report p 13. In that context, Dr Diamond provided a better psychiatric perspective. 258I found the DVD material to be unpersuasive of the merit of the defendant's credit attack upon the plaintiff,

Injury findings relating to the accident 259As indicated in my reasons at paragraph [71] above, having reviewed the evidence of the plaintiff and the evidence comprising the medical and allied reports, I will now proceed to set out my analysis and fact findings concerning the injuries the plaintiff sustained in the accident. 260Foremost, amongst those injuries was a profound psychological shock at the sudden occurrence of the accident in circumstances which the plaintiff could not take steps to avoid. 261That shocking event was compounded by the plaintiff also sustaining a number of physical injuries that were not fully apparent at the scene or in the ensuing days. This was also in circumstances in which the plaintiff's breathing was significantly affected due to his chest injury. In that regard, at the accident scene, he felt that he was going to "die". In my view, those events had the potential to deflect the plaintiff's focus from other injuries, if present, for some time afterwards. 262In assessing the plaintiff's injuries, regard must be had not only to the fact and nature of the collision itself as described in the evidence, but also to the unchallenged and not otherwise improbable evidence of the plaintiff that when he alighted from his vehicle at the scene, he fell to the ground, following which he complained of having pain "everywhere". Accordingly, in assessing the details of the plaintiff's physical injuries, the combined effects of those circumstances cannot be overlooked. 263The initial focus of the plaintiff's concerns about his injuries were the chest injury and the blow to his forehead when he struck his head on the steering wheel in the impact. Those matters were also the focus of the initial nursing and medical assessments that were undertaken at the hospital. The continued effect of those circumstances also interfered with the plaintiff's ability to freely move about for a time. 264Some 11 days following the accident, after further investigations had been pursued at the suggestion of the general practitioner, it became apparent that the plaintiff had fractured the 7th, 8th and 9th ribs on his left side, with associated bruising of the left chest wall. This was the cause of significant discomfort for him, especially in the context that it had taken some days for this to be recognised following his discharge from hospital. This, and the associated breathing difficulties encountered by the plaintiff undoubtedly affected his levels of distress, and I infer his ability to pursue a full range of normal movement. 265In those events, it was not surprising that the recognition of other injuries sustained by the plaintiff was slow to emerge. In that context, I consider that due weight should be given to the evidence of the plaintiff, that following the accident he felt pain "everywhere". 266In that regard, in the course of some ensuing medical examinations, the plaintiff noticed neck or upper back pain, an abrasion wound on his left shin, and on medical examination, sub-ungual haematomata were found on his toes. Those latter observations suggest that in the collision, the plaintiff had somehow injured his toes and left lower leg, absent a reasonable explanation for other causes for those observed conditions. 267When due recognition is given to the fact that the collision in question was a significant one, taken together with the fact that the plaintiff fell to the ground on alighting from his vehicle, and was otherwise shocked by the events, the defendant's submissions concerning the absence of contemporaneous record of the plaintiff's complaints of the injuries in contention must be considered with caution before acceptance. 268In that regard, the defendant applied significant focus to the plaintiff's claim of having sustained an injury to his lower back. The defendant argued that the plaintiff's reported lower back problems were not caused by, and were therefore unrelated to, the subject accident. In my view and for the reasons that follow, the defendant's submission, which proceeds on the basis of absence of contemporaneous corroboration of the plaintiff's testimony, is not borne out by the evidence, and should be rejected. 269The only records that could have provided a relevant source of contemporaneous record of complaint of injury by the plaintiff are, in sequence, the ambulance report, the hospital notes, and the records of the plaintiff's general practitioner. 270I do not consider the ambulance report represents an appropriate foundation upon which to base a finding that the plaintiff was not injured in the areas of contention, namely his neck, his shoulders, his thoracic spine and his right knee. This is because the ambulance report is difficult to read in parts and it documents an incomplete process in that the plaintiff declined the offer of transportation to hospital. 271In my view the hospital notes do not compel a conclusion that the contents of those notes should be taken to represent a complete catalogue of the plaintiff's physical injuries. 272That is especially so where the injuries in contention involve musculo-ligamentous strains which may not have been apparent to the plaintiff until some time later when he had the opportunity to move about more freely. Furthermore, it would appear that the assessment of the plaintiff by others whilst he was at the hospital was concerned with matters of significance at the time, and this does not necessarily imply that a full survey of the plaintiff's physical state was undertaken, including examining the affected parts under present consideration, by active examination and movement aimed at eliciting complaints of injury or pain, if present. 273Without intending any criticism of the examination and care of the plaintiff whilst he was at hospital, it seems that once it was determined the plaintiff required no further emergency assessment or treatment, he was advised to see his family doctor for follow-up. In these events at the hospital, the plaintiff's left-sided rib fractures were not detected, even on x-ray examination. 274Following his discharge from hospital on the day of the accident, 8 days later, the plaintiff consulted his general practitioner, Dr Zhang, whose notes of that consultation are sparse. Attempts by the plaintiff and his solicitor to enlist Dr Zhang's assistance in documenting the detail of what transpired in that consultation have met with only limited success: paragraph [79] above. 275In my view, Dr Zhang's notes should not be seen to represent a full catalogue of the plaintiff's injuries. This is so particularly since his review of the plaintiff was an interim one, where he referred the plaintiff for further x-rays of his chest, and he was awaiting the results of those x-rays. Furthermore, for the defendant's submission to be accepted on this issue, there would have to be evidence of the nature and extent of Dr Zhang's examinations and his findings in that regard. 276In connection with the plaintiff's claim of having sustained an injury to his lower back, I consider it to be significant that 17 days after the accident, when the plaintiff attended his general practitioner on 1 December 2007, Dr Tjondro had cause to note that he had examined the plaintiff's thoracic and lumbar spines, and other parts, as summarised at paragraph [82] above. On that occasion he recorded his finding that those areas were non-tender on examination. 277In the context under consideration, Dr Tjondro's conclusion "non-tender" must be taken to be a medical conclusion reached by him. It begs the question as to why the plaintiff's thoracic and lumbar spines were examined on that occasion. 278In that regard, a number of possibilities arise. The examination of those areas could have occurred because the plaintiff complained of discomfort in those areas. Alternatively, those areas may have been examined for completeness as an extension of the examination of the plaintiff's cervical spine as part of a thorough examination. Alternatively both possibilities could apply. The records alone do not enable a reasoned choice between those alternatives. 279However, having regard to the plaintiff's complaint that following the accident, he had pain "everywhere", I have concluded that the plaintiff's thoracic and lumbar spines were most probably examined by Dr Tjondro because of the plaintiff's complaints in the nature of having had pain "everywhere", consistent with the nature of the collision and the subsequent fall to the ground whilst alighting from the vehicle. 280The next chronological record of a complaint of pain in the plaintiff's lumbar spine was when he saw his general practitioner, Dr Romero, on 20 and 25 July 2008, and complained of low back pain, amongst other things, as summarised at paragraph [84] above. 281In my view, that chain of evidence, although involving sparse records made at intervals separated by time, supports a finding that the plaintiff more probably than not injured his lumbar spine in the subject accident. 282Similarly, the plaintiff's complaints of experiencing pain "everywhere", especially after falling out of his vehicle, supports a conclusion that he also injured his neck, shoulders and possibly his right knee, left shin or ankle. 283In summary, I therefore find that in the subject accident the plaintiff sustained the following injuries:

• Significant psychological shock;
• A blow and abrasion to the forehead from the steering wheel;
• Musculo-ligamentous injuries to the cervical spine, the base of the neck, shoulders and lumbar spine;
• Fractured left sided 7th, 8th and 9th ribs with associated bruising to the chest wall;
• Injury to the left shin and ankle;
• Injury to the toes. 284The claim of injury to the right knee is doubtful, although it could have occurred when the plaintiff fell from his vehicle at the accident scene and when he felt pain "everywhere".

Disability findings relating to the accident 285Following on from my consideration and evaluation of the medical evidence, and from my consideration of the evidence of the plaintiff, I set out my findings on the plaintiff's ongoing accident related disabilities, both of a physical and psychological nature. 286The plaintiff's ongoing physical complaints principally relate to pain in his neck, his upper back, and to his shoulders, the left shoulder being more problematic for him than the right. To a lesser extent, he also has pain in his lower back. The fact that these problems have been characterised as being of a soft tissue nature, does not diminish the pain experienced by the plaintiff in those areas. 287It would also appear from the radiological imaging ordered by Dr Maniam that the plaintiff had some underlying degenerative changes in his neck and lower back that pre-dated the accident in question. There was no evidence that suggested the plaintiff had significant symptoms in those areas before the accident. The pre-accident record of back pain on 6 February 2006, 20 months before the accident, seems to be an isolated one, without evidence of any lasting effect on the plaintiff but for the accident. 288The practical consequence of the plaintiff's physical complaints is that he is limited in the nature of the work he can reasonably undertake. The unchallenged and uncontradicted opinion of Dr Maniam, which I accept, is that the accident has rendered the plaintiff unfit for manual work, including likely difficulty with tasks involving pulling, pushing and lifting: Exhibit "B", Tab 31, p 5 of report, p 428 of that exhibit. 289Those physical complaints have become largely overshadowed by the nature and the extent of the plaintiff's accident-related psychological problems. I accept that the plaintiff suffers from chronic post-traumatic stress disorder and that he suffers from major depression. This is entirely understandable given the drastic turn for the worse that his life has taken after the accident, and which has had a profoundly adverse effect upon him, with the result that he believes his life has been ruined: T61.2. 290The plaintiff becomes tense when he thinks about the accident. He experiences panic and sweating when he has flashbacks or when he is required to deal with the event. Those flashbacks are horrifying and terrifying to him. He describes a reaction whereby he "freezes" and he feels scared. That response inhibits his ability or motivation to communicate with others, including at work. He has nightmares about the accident and wakes up sweating. He experiences anxiety and an increased heart rate. 291The plaintiff often ruminates about the fact that the accident occurred. He obsessively questions why he had to be involved in the accident. He is angry and short tempered. He blames the accident for the failure of his marriage on account of the fact that the effects of the accident caused him to withdraw from his wife and children. In that regard, he said he wanted to be by himself in his distress. In those circumstances, it is understandable that his wife became irritated with him, with his changed behaviour and personality, and with his angry demeanour. I accept that in early 2010, she therefore decided to leave the marriage. 292The plaintiff feels depressed all the time. He feels emotional and at times finds himself crying for no apparent reason. He feels that he cannot handle life anymore. He has at times felt suicidal about his situation. He experiences difficulty with sleeping, often getting only 3 hours sleep per night. This has obvious effects on his daytime activities, including his attitudes and his moods. 293He lacks motivation in several areas. He experiences difficulty getting out of bed in the mornings. He has lost the motivation to look after himself in the domestic setting, and he is less attentive to his personal hygiene. 294The plaintiff experiences difficulty with concentration, including at work. He finds he cannot face work, and he has difficulty communicating with others in his workplace. He at times lacks motivation to talk to people, and feels he lacks the mental stamina to work. 295Those disabilities must have a significant impact on the assessment of the plaintiff's damages in this case. 296This is so because the plaintiff's injuries and his accident-related disabilities have had a deleterious impact on his earning capacity and upon his ability to manage his domestic needs.

Mitigation 297The plaintiff has a duty to mitigate his damages: s 136 of the MAC Act. The defendant submitted that there was nothing to mitigate after the closed period ending in "early 2008": T710.5 to T710.25. The defendant made no submissions involving criticism of the efforts of the plaintiff to seek mitigation of his problems either before or after early 2008.

Assessment of damages 298In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span 299In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 49 years, the plaintiff has a rounded down probable median statistical life span of a remaining 36 years. The 5 per cent multiplier of 36 years is 884.8.

Non-economic loss 300On behalf of the plaintiff it was submitted that damages for non-economic loss should be awarded in the amount of $275,000. 301In contrast, on behalf of the defendant, it was submitted that such damages should not exceed $50,000. The defendant's submission proceeded upon the premise that any accident-related injuries and disabilities suffered by the plaintiff had resolved by June 2010, at the latest. 302The amount submitted by the defendant was therefore said to be appropriate, given the age of the plaintiff, and his return to work prior to his unrelated work accident of July 2010. For the reasons identified in coming to my findings on the plaintiff's accident related injuries and disabilities at paragraphs [259] to [284] and paragraphs [285] to [296], I have not accepted the defendant's non-economic loss submissions. 303In my view, the plaintiff's ongoing physical and psychological problems, including his sense of social isolation, which have become entrenched and chronic, call for a substantial award for non-economic loss. 304The plaintiff has suffered a significant interference with the enjoyment of the amenity of his life due to the described accident-related setbacks, and which he will continue to have to endure. Taking those matters into account, I consider the appropriate sum to be awarded for non-economic loss is $225,000. 305I therefore award the plaintiff damages for non-economic loss in the amount of $225,000.

Past economic loss 306On behalf of the plaintiff it was submitted that damages for past economic loss should be awarded in the amount of $45,457.30. That sum was later revised in a supplementary submission dated 7 February 2014, by which that claim was reduced to the sum of $36,835.17. 307In contrast, on behalf of the defendant, it was submitted that there should be no award for past economic loss beyond a closed period ending 2 January 2008. 308On 11 February 2014, the defendant provided supplementary written submissions in reply to the plaintiff's supplementary submissions on past economic loss. 309The defendant's supplementary submissions are predicated upon factual assumptions that do not accord with my findings concerning the ongoing nature of the plaintiff's accident-related disabilities and the effect those matters have had upon his ability to work. 310The defendant's submissions also argued that the plaintiff's submitted methodology for assessing past economic loss was flawed because of the base rates used for the calculations when regard is had to the plaintiff's financial records. 311The plaintiff's submission concerning past economic loss has been offered as a guide to assessment in circumstances where the plaintiff's pre-accident and post-accident income tax returns do not represent a true guide to assessment of his economic damages. 312This is because he was just about to enter into a new employment venture and it would have been uncertain as to how that venture would have unfolded for him had the accident not intervened. 313Therefore, unlike the case of an employee who has been in a steady position with a pattern of regular and predictable weekly salary, the plaintiff's financial records do not represent a true baseline for his earning capacity at the time of the accident. Instead, the plaintiff's economic position was subject to a number of variables, both positive and negative. 314On the negative side, the success and longevity of the proposed new venture was not guaranteed, and in ways that are not necessary to exhaustively catalogue, adverse vicissitudes may have operated against the prospect of the plaintiff's continued employment with the result that he may not have been able to exercise his theoretical earning capacity to the full extent possible. 315On the positive side, the plaintiff has had a history of continuing to work hard, even in the face of adversity, and moving forward for the economic advancement of his family. At the time of his accident, despite several financial setbacks, he was paying off a mortgage and he and his wife had an investment property. 316This suggests on balance that at the time of the accident, the plaintiff's most likely circumstances but for his injuries would have been that he would have continued to be well motivated to seek to fully exercise his earning capacity. He had an economic imperative for doing so. This was likely to be in the fruit and vegetable marketing industry with which he was very familiar, doing such work as he was able to find. This would have included self-employment, either alone or in a joint venture, and in any event, probably in a managerial capacity; s 126 of the MAC Act. 317Instead, the accident caused the plaintiff significant problems that interfered with his work. He was no longer able to pursue the aim of owning his own business. He found his ability to get on with customers had changed: T57.28. There were days when he could not handle his emotions and just cried: T74.45. He experiences extreme pain: T99.40. He has difficulty with back pain and with walking: T111.25 - T111.27. These are just a few examples. He has continued to have significant physical and psychological problems that interfered with his work and his inter-personal relations at work. This was also the subject of adverse comment by his employers. 318In view of those findings, I consider that the methodology within the past economic loss submissions advanced on behalf of the plaintiff have been structured in a conservative manner. These were as follows: (1)For the period 13 November 2007 to 30 June 2008, in the net weekly amount of $765.16 for 32 weeks, resulting in a net loss of $2542.40; (2)For the period 1 July 2008 to 30 June 2009, in the net weekly amount of $836.09 per week, after allowing for CPI increments on the base rate and offsetting the plaintiff's net earnings for that period, resulting in a net loss of $8877.74; (3)For the period 1 July 2009 to 30 June 2010, in the net weekly amount of $726.50 per week, after allowing for CPI increments on the base rate and offsetting the plaintiff's net earnings for that period, resulting in a net loss of $6369.48; (4)For the period 1 July 2010 to 30 June 2012, no loss is claimed; (5)For the period 1 July 2012 to 30 June 2013, in the net weekly amount of $962.70 per week, after allowing for CPI increments on the base rate and offsetting the plaintiff's net earnings for that period, resulting in a net loss of $4,290.52; (6)For the period 1 July 2013 to 5 December 2013, in the net weekly amount of $1000.94 per week, after allowing for CPI increments on the base rate and offsetting the plaintiff's net earnings for that period, resulting in a net loss of $14,755.33. 319The above calculations amount to the total sum of $36,835.17 net. 320The plaintiff makes no claim for the period 6 December 2013 until the date of the trial because he has invested the remnants of his superannuation funds in a Michel's Patisserie franchise with Mrs Marrapodi, and since that time he has been drawing $1100 per week net from that business, although it is clear he does very little to earn that money, accepting his evidence and the evidence of Mrs Marrapodi as I do. This will be taken up again in connection with the assessment of the plaintiff's damages for future loss of earning capacity. 321In viewing the claimed sum of $36,835.17, it seems to me that there should be some discount applied to it to reflect a number of imponderable factors. Without exhaustively listing them, these are along the lines that the proposed employment may not have worked out, or that due to circumstances, the plaintiff may have had to take lesser drawings from time to time. 322Accordingly, I consider the most appropriate and fair method of compensating the plaintiff for past economic loss is to award a discounted buffer amount of $25,000. 323I therefore award the plaintiff damages for past economic loss in the amount of $25,000.

Future economic loss 324The plaintiff claims a future economic loss in the sum of $292,187.50. That sum was calculated on the basis of a projection of a $550 per week net over 18 years to age 67 years (x 625) discounted by 15 per cent for potential adverse vicissitudes. 325In contrast, the defendant submitted that no amount should be awarded to the plaintiff on account of future economic loss. 326The basis of that submission was the reiteration of the argument that the plaintiff has suffered no impairment of his earning capacity whatsoever by reason of any accident-related condition, either physical or psychological: Defendant's outline of submissions, paragraphs [181] - [198]. 327For the reasons outlined in my findings on the plaintiff's accident related injuries, disabilities and past loss of earnings at paragraphs [259] - [284], [285] - [296], and [306] - [323] above, and for the further reasons that follow I do not accept those submissions. 328In making the no loss of earning capacity submission, the defendant's written submissions make not a single reference to the medical evidence. In my view, that approach is an unrealistic one, especially where at the very least, the plaintiff suffered an aggravation of an underlying vulnerability to react poorly to his injury. That is a matter for which the defendant must take responsibility because he takes the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406. In that regard, Dr Newlyn acknowledged that the plaintiff had developed a psychological response to pain that interfered with his functioning: T513.19. 329Dr Diamond's views on the plaintiff's work capacity were not materially altered after he viewed the DVD footage relied upon by the defendant: T383.25. The fact that the plaintiff has been able to attend to some work since the incident is consistent with what Dr Diamond described as the need to do something useful and not give up: T387.24. This was not inconsistent with the diagnosis he had made: T387.31. Dr Diamond distinguished work from just turning up to a sheltered environment at a workplace (T420.20; T422.44; T423.25) which is essentially what the patisserie business provides for him as described by Mrs Marrapodi. 330The effect of the evidence of Mrs Marrapodi and the plaintiff's post-injury employer, Mr Giggliotti does not auger well for the plaintiff's economic future. 331The underlying submission of the defendant that the plaintiff does not suffer from any condition which would prevent him from carrying out any activity in connection with the running of the franchise business in which he has an interest makes no allowance for the evidence of Dr Diamond and Mrs Marrapodi, which I have accepted, in addition to my acceptance of the plaintiff's evidence that he is unable to work. 332The defendant's submission also seems to ignore the effect of Dr Newlyn's acknowledgment as cited above: T513.19. 333The defendant has made criticisms of the proposition that there should be any allowance for a loss of earning capacity. I consider those submissions to be unrealistic on the evidence that I have reviewed and accepted. 334In support of the plaintiff's claim for diminution in his earning capacity, Dr Diamond was of the view that the plaintiff is no longer fit to perform managerial responsibilities, and this has been the case since the 13 November 2007 motor vehicle accident: Report 27 September 2013, p 12 para 7(i). 335In addition Dr Diamond has stated that the plaintiff's obligation to sustain himself in the workplace is diminished, as is his overall working life due to his chronic and disabling psychiatric illness from which he will not recover. He believes a substantial residual earning capacity is unrealistic in the plaintiff's situation: Report 27 September 2013, p 12 para 7(ii). 336Dr Diamond added that the plaintiff struggles to maintain his psychological equilibrium which impacts on his work. He cannot deal with conflict effectively, he is unable to work with ordinary stressors, and due to his long term chronic illness, is impaired in his working capacity in terms of hours and roles: Report 27 September 2013, p 12 and p 13, paragraphs 7(iii), (iv) and (v). 337I accept Dr Diamond's opinions in that regard. Those views justify a finding that the plaintiff's earning capacity has been substantially impaired. 338The plaintiff clearly suffers from an ongoing diminution in his previously unfettered ability to exercise his earning capacity and is thereby liable to suffer a financial loss that is likely to arise in the very near future as Mrs Marrapodi does not see the franchise continuing on the present basis which places great strain on the current business arrangements: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. 339I consider that when read together, the evidence of the plaintiff, Dr Diamond and Mrs Marrapodi, which I accept, indicates that on the balance of probabilities, the plaintiff will be likely to suffer a financial loss in the near future because the business is unlikely to continue as it has until now with the plaintiff's unsatisfactory involvement as described by Mrs Marrapodi: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. 340In that regard, as already explained at paragraphs [245] to [258] above, I do not consider the short DVD sequences relied upon by the defendant, as being reliable evidence for a contrary conclusion. 341In those circumstances, the approach of projecting a sum of $550 per week net, which the defendant criticises as being "plucked out of the air" seeks to inject an element of precision into the exercise of assessment where many imponderables arise, thereby contraindicating the approach of projecting a defined weekly sum. 342Instead, I consider this to be an appropriate case for awarding the plaintiff a buffer sum for future loss of earning capacity over the remaining 18 years of his working life to age 67 years: Penrith City Council v Parks [2004] NSWCA 201, at [58]; State of NSW v Moss [2000] NSWCA 133, at [71], (2000) 54 NSWLR 536, at [7]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7] - [9]. 343That buffer must make allowances for both negative and positive factors that must be included in the mix of factors that go into making an assessment to compensate the plaintiff for his loss of capacity to work. As well as incorporating a general discount on account of potential adverse vicissitudes. 344On the positive side, it is possible that after the litigation the plaintiff may to some extent improve and extend his ability to work in a calmer frame of mind once the strains of the litigation process recede. It is also possible that in the future, either in the present franchise, or in some other sympathetic situation, the plaintiff may find intermittent work from time to time, which may reduce his monetary loss of income to a degree. 345On the other hand, there is little scope for his PTSD to recede or resolve. It also seems unlikely that the present franchise will continue to provide the plaintiff with $1100 per week net where he clearly does not earn it, and where the business cannot afford to continue to maintain payments of that order to him where he does not contribute his labour to the level that justifies such drawings. 346Those circumstances create difficulties for assessment of losses over the plaintiff's future working life where, but for his injury, he would have had no impediments to continuing to work until his proposed retirement age without incurring a diminished earning capacity. 347Difficulty in making an assessment is not an obstacle to assessing a buffer to compensate for a difficult to define loss: State of NSW v Moss, at [82]. 348Taking those matters into account, I consider that the appropriate buffer that is both fair to the plaintiff, and not unfair to the defendant, is the net sum of $250,000. In consider that sum makes due allowance for a residual earning capacity although the defendant called no evidence on that issue: 349I therefore award the plaintiff damages for future economic loss in the lump sum buffer amount of $250,000.

Past loss of superannuation 350On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $250,000. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $2750.

Future loss of superannuation 351There is no dispute that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 13.59 per cent. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $33,975.

Future domestic assistance 352Although the plaintiff has at various times in the past received gratuitously provided domestic assistance from his mother, as well as from Mrs Marrapodi and her daughter, he makes no claim for damages for the monetary value of that past assistance. 353That said, the plaintiff makes a claim for future domestic assistance of 6 hours per week costed at a commercial rate of $35 per hour over his remaining life span and discounted by 15 per cent for vicissitudes, in the amount of $158,722.20. 354In response to that claim the defendant argued that there was no cogent evidence of any physical disability that gave rise to a need for such care as a result of the subject accident, and there were no psychological grounds upon which to base an award for such care. In developing those submissions the defendant pointed to the terms of the medical evidence to suggest there was an insufficient basis in that evidence for any such award. 355In my view, those submissions made by the defendant should not be accepted. The plaintiff is psychologically disturbed by the events of the accident. Dr Diamond explained how he could have lost interest in self-care and lapse into apathy, consistent with the effects of PTSD despite attending to other tasks without apparent difficulty. Dr Diamond explained in terms of "not being bothered": T392.26 - T392.36. That evidence was not contradicted by other expert evidence. It did not seem inherently improbable. I therefore accept Dr Diamond's opinion in that regard. 356The defendant also submitted that the premises the plaintiff presently rents are of a size that is in excess of his reasonable needs, and that the amount of care claimed in respect of those premises was excessive. 357In my view, that latter submission has a degree of persuasive force, and I consider that any award to the plaintiff should be for a lesser amount which properly reflects that submission. 358The defendant's final submissions on this head of damage were to the effect that it was unlikely that the plaintiff would expend any funds on paying for such assistance, and that the claim lacked credibility in that it was expanded upon through evidence given by leave, and after the plaintiff had conferred with his legal advisors. 359For the reasons that follow, I do not consider those submissions to be persuasive. 360The fact that the claim was expanded upon after conferring with legal advisors is of little significance in this case where the evidence has established to my satisfaction that the plaintiff has significant problems with his memory and where he found the process of questioning somewhat taxing. 361Even the expert psychiatrists on both sides each remarked upon the difficulties they experienced in questioning the plaintiff and ensuring that he remained on topic. That phenomenon was also replicated in the oral evidence the plaintiff gave in the proceedings. 362In the circumstances, in my view, the leave granted to call further evidence was indicted by the circumstances, and the defendant's rights were not unduly prejudiced because there was an unfettered opportunity for counsel for the defendant to further cross-examine the plaintiff on the matters that were introduced into evidence by leave. 363With regard to the submission that the plaintiff is not likely to expend the moneys awarded to him in respect of this head of damage by paying for care, that submission must be seen as being misplaced. 364The proper analysis is to ask the questions as to whether the accident has caused the plaintiff to incur an injury-based need for domestic assistance, and if so, who is likely to fulfil that need, and at what cost. What the plaintiff later does with any funds so awarded, is not a matter that the court can properly control, limit, or anticipate in the way the defendant seeks. 365The assistance currently provided to the plaintiff involves Mrs Marrapodi undertaking washing of the plaintiff's clothes, cleaning his bathroom, as well as vacuuming and dusting his home. From the description of Mrs Marrapodi, the average time taken up with those activities amounts to some 15 hours per week: T456.20. In addition Mrs Marrapodi arranges for someone to mow the plaintiff's lawns. 366The defendant submitted that the 15 hours of care and assistance provided as described in the evidence of Mrs Marrapodi was for an excessive number of hours, and that such evidence should be rejected. However, the defendant has overlooked the fact that the plaintiff's claim is not for those hours, but for only 6 hours per week. 367I accept that Mrs Marrapodi and her daughter provide the plaintiff with care and assistance in the domestic setting for at least the 6 hours per week claimed. I do not consider the hours expended by Mrs Marrapodi to have been necessarily excessive thereby requiring her evidence be rejected. Instead, on the evidence it would be reasonable to infer that Mrs Marrapodi was concerned with matters of cleanliness, tidiness and hygiene to a degree that some might find to be obsessive, thus attracting the defendant's criticism of excessive care. 368Recognising that factor, which is not a credit issue in respect of the evidence of Mrs Marrapodi, the plaintiff has reduced the number of hours claimed to 6 hours per week. There is no difficulty in that regard, In my view, the claimed credit issue does not arise. 369The defendant points to the surveillance evidence which shows the plaintiff carrying out minor cleaning and wiping tasks at the patisserie, and in the light of that evidence, reasonably raises the question as to why the plaintiff cannot carry out similar domestic cleaning and organisational tasks himself without external assistance. 370In my view the answer to that question is to be found in the evidence of the plaintiff, Mrs Marrapodi, and Dr Diamond. 371The plaintiff is simply not bothered to attend to household tasks. He lacks the energy and motivation due to his PTSD. He is unable to source gratuitously provided domestic assistance from elsewhere, and he proposes to expend funds awarded to him for that purpose: T431.23 - T432.2: Miller v Galdaresi [2009] NSWCA 353, at [18] and following. It is relevant to note that Mrs Marrapodi is not part of the plaintiff's family and he cannot reasonably expect her assistance to continue. 372Mrs Marrapodi has said that she and her daughter are unable to continue to assist the plaintiff in the manner they have done in the past and he has been told this: T457.40 - T458.22. That evidence is believable in view of the time that needs to be committed to running the business and her own home. 373Although the defendant's submissions state at paragraph [207], that Dr Diamond did not express any opinion on the question, those submissions overlook the evidence Dr Diamond gave at T392. 374I accept Dr Diamond's evidence that, consistent with the diagnosis of PTSD, it is explicable the plaintiff is able to carry out minor cleaning tasks at the patisserie, as shown in Exhibit "7", but does not attend to domestic tasks: T392.35. Dr Diamond has adequately and persuasively explained that apparent paradox. 375That said, whilst the claim for 6 hours per week of domestic assistance is a discounted claim, for the reasons that follow, I nevertheless consider that a further discount is required in approaching the assessment of this head of damage. 376First, the plaintiff is renting a home that is much larger than would be expected to be required to meet his reasonable domestic needs. Whilst those larger premises may be in anticipation of his children one day joining him to live there, I do not consider that greater than necessary space should form the basis of compensation for domestic assistance for his accident-related domestic needs. 377Secondly, given that the domestic assistance described in the evidence is going to be performed on a commercial basis because Mrs Marrapodi is not going to be providing that assistance in the future once these proceedings have been concluded, it must be assumed that an element of commercial efficiency will be incorporated into the time taken to carry out the tasks, and therefore the cost of the services being claimed will involve a lesser amount. 378Thirdly, I do not consider that the evidence requires the conclusion that the level of assistance claimed will in fact be required over the entirety of the plaintiff's remaining life span. I propose to make a greater allowance for vicissitudes in order to incorporate the prospect of a diminishing level of need for domestic assistance over time. 379For those reasons, I propose to allow a reduced number of hours for future domestic assistance on account of the efficiency factor I have already referred to, namely 4 hours per week, and I propose to apply a discount of 25 per cent for vicissitudes to allow for the prospect of a lessening extent of need over time. 380The projection of 4 hours per week of domestic assistance at $35 per hour, or $140 per week, at 5 per cent over the plaintiff's remaining life span (x 884.8) and discounted by 25 per cent for vicissitudes, yields the sum of $92,904. 381I therefore award the plaintiff damages for future domestic assistance costed on a commercial basis in the amount of $92,904.

Future out-of-pocket expenses 382On behalf of the plaintiff, a claim is made for future out-of-pocket expenses in the sum of $49,457.30. That sum comprised allowances for multiple annual visits to a general practitioner, multiple annual visits to a psychologist, a psychiatrist, physiotherapy and allied treatment, pharmaceutical and travelling costs. The claim is for $55.62 projected at 5 per cent over the plaintiff's life span to yield $49,457.30. 383In contrast, on behalf of the defendant, it was submitted that there was no evidentiary foundation for an allowance for any future treatment expenses at all. 384Whilst I consider that the total projected amount claimed on behalf of the plaintiff over his remaining life span has not been justified, I do not accept the defendant's submission that the claim for treatment expenses is entirely unjustified. I have reached that conclusion for the reasons that follow. 385The plaintiff still suffers from physical symptoms relating to his neck, as well as, occasionally, his back, but overshadowing these matters are the symptoms relating to the effects of the plaintiff's PTSD condition, which has been acknowledged as being difficult to treat, but which nevertheless requires and deserves attempts at treatment. 386Future treatment should at the very least, involve periodic supervisory and referral consultations with a general practitioner, consultations with a psychologist and psychiatrist and associated costs for psychotropic medication, which the plaintiff presently continues to take. 387Given that the plaintiff's PTSD condition has become chronic and entrenched, I consider it reasonable to allow for such treatments in the short to medium term in the hope that treatment might to some degree ameliorate the extent of the plaintiff's suffering. However, I do not consider the claim as formulated requires projection over the entirety of the plaintiff's probable life span. 388The evidence does not permit or justify a precisely analysed weekly amount for projection. In those circumstances, I consider that an allowance by way of a buffer is the most appropriate method by which to compensate the plaintiff for his accident-related need for future treatment, especially as the condition is chronic. I consider the appropriate amount for a buffer for future treatment expenses to be $7500. 389I therefore award the plaintiff damages for future out-of-pocket expenses assessed in the buffer amount of $7500.

Past out-of-pocket expenses 390The plaintiff makes a claim for out-of-pocket expenses in the amount of $7197.05. That sum comprised the total of the amounts set out in the 8 documents in respect of the 10 items, which formed Exhibit "S". 391In contrast, on behalf of the defendant, it was submitted that the amounts comprising Exhibit "S" were disputed. The defendant provided a counter-schedule which set out objections to 7 items of the plaintiff's claim for out-of-pocket expenses. Those objections totalled $6313.90, thereby conceding a balance of $883.15. 392Some of the defendant's objections have some force. 393For example, no receipts or other documentation have been provided in respect of the claim of $1000 for travel, and no receipts have been provided in respect of the claim of $1000 made in respect of the cost of medication. Furthermore, the defendant points out, that the claim for $1273 in respect of imaging studies of the plaintiff's spine were incurred for medico-legal purposes and not for treatment, thereby identifying that amount as being a matter for a costs assessor. 394On the other hand, some of the objections raised by the defendant are based upon the notion that the need for psychological treatment was unrelated to the subject accident, a submission that I have not accepted. 395That said, for whatever reason, the evidence in support of the claim for past out-of-pocket expenses remains limited and incomplete. 396Nevertheless, the plaintiff has over time been seeing general practitioners, psychologists and a psychiatrist for accident-related problems as earlier described in these reasons. He has also been taking psychotropic medications that have been prescribed for him over time. 397In my view that evidence justifies an award for out-of-pocket expenses in a modest and rounded down buffer amount which also incorporates the limited amounts conceded by the defendant, notwithstanding the absence of documentary proof. I consider an appropriate buffer sum to be the amount of $2500. 398I therefore award the plaintiff damages for past out-of-pocket expenses assessed in the buffer amount of $2500.

Summary of damages assessment 399My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $225,000 (b) Past economic loss $25,000 (c) Past loss of superannuation $2,750 (d) Future economic loss $250,000 (e) Future loss of superannuation $33,975 (f) Future domestic assistance $92,904 (g) Future out-of-pocket expenses $7,500 (h) Past out-of-pocket expenses $2,500 Total $639,629

Disposition 400The plaintiff has established an entitlement to an award of damages in his favour in the sum of $639,629.

Costs 401Consequent upon the outcome of the proceedings, the plaintiff is entitled to an order for costs against the defendant on the ordinary basis unless a party is able to show an entitlement for costs to be assessed on some other basis.

Orders 402I make the following orders: (1)Verdict and judgment for the plaintiff in the sum of $639,629; (2)The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required.

Amendments 23 July 2014 - Slip rule amendment - "$669,466" is replaced with "$639,629" Amended paragraphs: Coversheet 23 July 2014 - Slip rule amendment - "$664,629" is replaced with "$639,629" Amended paragraphs: [399], [400], [402] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2014