Webb v Edwards

District Court of NSW|2018-02-06|Before: Barrett J, Walton J

5 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Penrith City Council v Parks [2004] NSWCA 201 Pham v Shui [2006] NSWCA 373 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Timoney Technology Limited & Anor v ADI Limited [2007] VSC 402 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Texts Cited: Blakiston's Gould Medical Dictionary, Fourth Ed, McGraw Hill, 1979 Dorlands Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1994 Oxford Medical Companion, edited by Walton J, et al, Oxford University Press, 1994 Smyth, R : "What do Trial Judges cite?" (2018) 41(1) University of New South Wales Law Journal Category: Principal judgment Parties: Tony Webb (Plaintiff) Lyndon John Edwards (Defendant) Representation: Counsel: Mr C Hickey (Plaintiff) Mr A Black SC (Defendant)

Solicitors: Kingston Swift (Plaintiff) McInnes Wilson Lawyers (Defendant) File Number(s): 2013/295410 Publication restriction: None

Table of Contents Nature of case [1] Factual background [2] - [4] Issues [5] - [9] Summary of findings [10] Procedural matters [11] - [16] Related proceedings [17] Evidence overview [18] - [19] Credit [20] - [74] Facts [75] - [330] (1) Plaintiff's pre-accident background [76] - [79] (2) Plaintiff's pre-accident work history [80] - [85] (3) Injuries and initial treatment [86] - [91] (4) Subsequent medical and allied reviews [92] - [100] (5) Diagnostic conclusions of treating doctors [101] - [111] (6) Findings on conflicting medico-legal opinions [112] - [278] Principles that guide the analysis [113] - [117] Opinions of the plaintiff's treating doctors [118] - [136] Dr Voss' opinions [137] Dr Davis' opinions [138] Dr Boyce's opinions [139] Dr Klug's opinions [140] - [158] Dr George's opinions [159] Dr Anderson's opinions [160] - [163] MAS Assessor's opinions [164] - [166] Dr O'Neill's opinions [167] - [183] Dr Haik's opinions [184] - [207] Dr Schutz's opinions [208] - [258] Dr Langeluddecke's opinions [259] - [278] (7) Disabilities that remain [279] - [322] (a) Alleged malingering, exaggeration, embellishment [282] - [286] (b) Alleged inconsistencies in plaintiff's presentation [287] - [289] (c) Right chest wall pain, whether neuropathic [290] - [299] (d) Right arm tremor and weakness on exertion [300] - [302] (e) Psychiatric illnesses affecting the plaintiff [303] - [311] (f) Plaintiff's faecal incontinence [312] - [317] (g) Other disabilities [318] - [322] (8) Work effects [323] - [328] (9) Domestic effects [329] (10) Mitigation [330] Assessment of damages [331] - [396] Plaintiff's remaining life span [332] Vicissitudes [333] - [338] Non-economic loss [339] - [353] Past loss of income [354] - [369] Fox v Wood [370] Future economic loss [371] - [385] Past loss of superannuation [386] Future loss of superannuation [387] Future treatment [388] - [394] Past out-of-pocket expenses [395] Summary of damages assessment [396] Apportionment for the plaintiff's contributory negligence [397] Disposition [398] Costs [399] Orders [400]

Nature of case

The plaintiff, Mr Tony Webb, is aged almost 34 years. He was injured in a motor vehicle collision on 15 May 2007, when he was aged 23 years. He brings these proceedings in negligence against the defendant, Mr Lyndon Edwards, claiming damages for injuries he sustained in that collision. The proceedings are governed by the Motor Accidents Compensation Act 1999 ("MAC Act") and the Civil Liability Act 2002 ("CL Act").

Factual background

At about 7.05am on Tuesday 15 May 2007, the plaintiff was driving his vehicle on the Mitchell Highway, from his home at Narromine to his work at Dubbo, NSW. As he was negotiating a left bend in the roadway he encountered a large prime mover being driven in the opposite direction by the defendant, whose vehicle was towing an oversized agricultural scarifier that straddled the middle of the roadway partly on the incorrect side.
Despite attempts by the plaintiff to take evasive action by veering to his left, a side-swipe collision ensued. As a result, he sustained serious bodily injuries. As a consequence, he has ongoing physical and psychological disabilities that must be assessed for the impact those matters have had on the plaintiff's life, and on the loss of the amenity of his life. A consultant psychiatrist, in a medical assessment, has described the plaintiff's post-accident situation as being a most complicated case: Exhibit "2", p 219.
The following copy photograph, which forms part of Exhibit "B", provides some indication of the severity and frighteningly horrific nature of the collision. It shows the extent of the damage to the driver's side of the plaintiff's vehicle. It was necessary to use mechanical implements to cut the plaintiff free from that wreckage: T13.8.

Issues

The liability issues have been agreed. The plaintiff is to receive a verdict in his favour but his entitlement to damages must be reduced by 20 per cent on account of his own contributory negligence.
The essential issues that remain to be determined in the proceedings concern the credibility and the reliability of the plaintiff's testimony, and that of his partner of 11 years, Ms Tabitha Triplett, the determination of factual matters concerning the effects of the accident on the plaintiff, and the assessment of the quantum of the plaintiff's damages.
The assessment of the plaintiff's entitlement to damages requires a consideration of selected and edited portions of numerous and extensive segments of video surveillance footage of the plaintiff's activities over the period 2010 to 2017, a consideration of the clinical diagnoses made by the plaintiff's treating doctors, and the resolution of conflicting medico-legal opinions concerning the nature, the extent, and the prognosis, of the plaintiff's ongoing accident-related problems.
Notwithstanding clinical assessments made by the plaintiff's treating doctors, and which support his case, various suggestions emerged within the medico-legal opinions relied upon by the defendant, to the effect that the plaintiff was malingering, embellishing the extent of his problems, or exaggerating the effect of those problems. The reasonableness and the appropriateness of those suggestions must be evaluated and reconciled against the evidence as a whole.
After those matters are reconciled, the essential damages questions that must be determined are, first, whether there are any relevant inconsistencies in the plaintiff's presentation, secondly, whether the plaintiff's complaint of residual chest wall pain has a physical or neurological basis; thirdly, whether the claimed exertion tremor in the plaintiff's right hand and arm is accident-related; fourthly, whether the accident has left the plaintiff with psychiatric illnesses comprising post-traumatic stress disorder, major depression, an adjustment disorder, anxiety, panic attacks and suicidal thoughts; fifthly, whether the plaintiff suffers episodic involuntary faecal incontinence as a consequence of the accident, and the related question of whether that problem is due to the plaintiff's experience of panic attacks; and sixthly, the effect of those matters on the plaintiff's past and future earning capacity, and his future treatment needs. My findings on those matters appear under those headings as set out in these reasons.

Summary of findings

In summary, for reasons that will be made plain, I have accepted the credibility and reliability of the evidence of the plaintiff and his partner. I have rejected the criticisms that certain of the defendant's experts have levelled at the plaintiff concerning his probity and as to the reasonableness of his complaints of disability, where various assertions were made by some experts to the effect that the plaintiff was malingering, exaggerating or embellishing his problems. For the reasons given, I have accepted the plaintiff's case on each of those issues. I have assessed the plaintiff's damages at $2,078,707.88 before applying the agreed apportionment of 20 per cent for contributory negligence. The plaintiff is to have a judgment in his favour in the apportioned sum of $1,661,366.20. The length of these reasons reflect the voluminous nature, extent and content of the evidence, and the nature of the issues that consequently emerged for consideration.

Procedural matters

Before setting out my reasons for those conclusions, it is necessary to review some aspects of the procedural background of this matter, and some related proceedings.
These proceedings were filed on 1 October 2013. Between that date and the commencement of the hearing on 29 January 2018, there had been some 28 interlocutory listings of the matter. These were, variously, for case management, pre-trial conferences, mentions, directions hearings and applications, including two unsuccessful applications made by the defendant, on 30 November 2017 and 29 January 2018, at which times the List Judge refused applications to vacate the hearing dates for a five day hearing set to commence on 29 January 2018.
Those hearing dates were set and allocated at a call over on 5 May 2017. This was in circumstances where, on 1 March 2017, at an interlocutory listing, the issues of liability and quantum were ordered to be tried separately, and on 12 April 2017, a consent judgment on liability was entered in favour of the plaintiff, noting there would be an agreed reduction of 20 per cent from the plaintiff's assessed damages on account of his contributory negligence. The issue of damages remains to be assessed.
The basis of the most recently refused application to vacate the hearing dates was that the defendant wished to pursue an administrative review of the latest Medical Assessment Service (MAS) assessment of the plaintiff, dated 4 December 2017, which certified the plaintiff to be the subject of a 22 per cent whole person impairment, which had the effect of affirming the plaintiff's entitlement to claim damages for non-economic loss. An application for a review of that determination, has now been filed, and it will take some uncertain period of time for that process to be completed.
In the meantime, in the circumstances where the substantive hearing was required to proceed to a conclusion, I considered that it would be unreasonable, unjust, and needlessly burdensome for the parties, and for the Court, to withhold my reasons for assessing the plaintiff's existing entitlement to damages in respect of the initiating events that occurred almost 11 years ago, in proceedings that were filed almost 5 years ago, where it must be recognised that timely completion of litigation is an important individual and public interest objective: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [23] - [25].
In those circumstances, in accordance with the indication given to the parties to that effect, and to which they have concurred (T178.29; T179.16), it was agreed that I should proceed to assess all of the claimed heads of damage and publish these reasons for decision on those matters. In those circumstances the rights of the parties to pursue other potential avenues and remedies would not be unjustly hindered by that course provided the non-economic loss component of the damages was stayed pending further orders. However, on 26 March 2018, the parties informed the Court that on 20 March 2018, the application for a further MAS review had been dismissed. Accordingly, a stay was no longer required on that account.

Related proceedings

A related action brought by the worker's compensation insurer against the present defendant was heard concurrently with this action. In that related action, the insurer was seeking recovery of worker's compensation and allied payments incurred in respect of the plaintiff's injuries. Those payments totalled $848,876.57: Exhibit "K", Tabs B and C. On the fifth day of the trial, those related proceedings were resolved by the filing of consent orders which no longer require any further consideration.

Evidence overview

The only oral evidence called on factual matters came from the plaintiff and from his partner. The defendant required the attendance of two assessing psychiatrists, Dr Peter Klug and Dr Peter Anderson, for cross-examination on the content of their respective reports. The defendant called no oral evidence, either on factual matters, or on the medical issues, and instead, relied on documents, surveillance footage, and medical reports.
Voluminous documentary material, comprising several thousand pages, including extensive medical and allied reports, and certificates, required consideration. That material, which was assembled and tendered in organised bundles, will be referred to where it becomes relevant to do so. Some of the material was duplicated in the bundles produced by the parties. Where it is relevant to cite a source of evidence within those bundles, I will not cite the duplication unless the context so requires that course.

Credit

Before addressing factual matters, in view of the nature and the extent of the defendant's attack on the credibility of the evidence of the plaintiff and on the credibility of his case, it is necessary to first address, at some length in view of the matters raised, questions concerning credit. My conclusions on those matters are set out in the paragraphs that immediately follow.
The plaintiff's evidence in chief was predominantly given in a matter of fact, flat, unemotive and detached manner. However, he became visibly upset and tearful when recounting his disabilities, and the effect the accident has had on his life, including his multiple post-accident attempts at suicide. He frequently held his face in his hands when speaking about those matters, which caused him obvious emotional distress and discomfort.
In the course of cross-examination of the plaintiff on the content of extensive surveillance footage that was shown in court during the afternoon of the second day of the hearing, the plaintiff unfortunately experienced an episode of faecal incontinence, which required that he withdraw from the court room in order to deal with the consequences. An aspect of the plaintiff's claim of disability is that his faecal incontinence occurs at random, probably in association with panic attacks, and is due to the effects of the subject accident. Whilst he was absent from the court room to attend to that matter, debate centred around the admissibility of some medical evidence relied upon by the defendant.
In those events, during the course of that argument, the plaintiff re-entered the court room whilst in an obviously upset state. In those circumstances, he swiftly approached Mr Black SC, in a dramatic and aggressive manner, and stated: "WITNESS: Just seeing what I've got to deal with Mr Black. Do you see that? You sit in that all day and see how I feel. I want to fucking kill myself mate. That's all I want to do. You don't fucking understand. HIS HONOUR: All right Mr Webb just go outside." After the plaintiff had left the court room, the following notation was then recorded in the transcript to describe those events: "Officer would you just see to Mr Webb just make sure he's calm. The record should be noted that the proceedings have been interrupted by the plaintiff's re entry into the Court room at 2.27pm. He approached Mr Black who was on his feet responding to me and placed what appeared to be a used diaper on Mr Black's brief and then used threatening language and gestures in an agitated state. The plaintiff has now left the Court room and perhaps Mr Hickey your instructing solicitor should go out and find out what's going on." [T59.5 - T59.21]
In the course of the events described in the preceding paragraph, in an emphatic gesture, the plaintiff proceeded to deposit a soiled incontinence pad onto Mr Black's briefing papers on the bar table. He also made some dramatic and threatening hand gestures, including whilst holding his spectacles, in very close physical proximity to Mr Black's face and neck.
The plaintiff later apologised for his outburst, which, as appears from the evidence, needs to be considered in the context of his overall psychological state, which was noted to include anger management issues, and a tendency to "snap". The matter that had apparently caused the plaintiff to become so upset was his unpredictable faecal incontinence, which according to the undisputed evidence of Dr Klug, is caused by his accident-related panic attacks: Exhibit "C", Tab 1, p 25; T140.18 - T141.30.
The defendant's cross-examination of the plaintiff as to his credit appears to have been in part founded upon a number of sceptical expressions of doubt made about him and about his reported symptoms, and regarding his motives in connection with this claim, as appeared in various medico-legal reports. Those comments were from Dr Robert Haik, a now retired psychiatrist, Dr Pauline Langeluddecke, a clinical psychologist, and Dr Edward Schutz, a general surgeon. Those reports were relied upon by the defendant.
The defendant also relied upon an extensive collage of edited surveillance footage obtained in the course of observation of the plaintiff's day-to-day activities on various dates between 2010 and 2017. It is common ground that of the total of about 7 hours of recorded video surveillance material that was available to the defendant, a shorter edited version, lasting some 4 hours, was selected by the defendant's solicitor to be presented and tendered in the proceedings: Exhibit "7". I have only viewed that condensed version of the video. There is no dispute that the unseen edited remainder of that material has no potential for any adverse bearing on the plaintiff's case.
The defendant's solicitor also prepared a document described as a surveillance summary as an aide to the viewing and interpretation of the surveillance video material: MFI "2". As some descriptions within that document were referred to at various times in the course of the viewing of the video evidence, and since those references appear in the transcript of these proceedings as commentary, I considered that the document should be marked as an exhibit: Exhibit "8".
That said, I consider that Exhibit "8" should be read with the qualification that some of the interpretative text contained within that document, which purported to describe the plaintiff's observed activities, comprised some exaggerated or overstated emphasis, which could possibly give the reader the misleading impression that the described actions of the plaintiff were less benign than they were in fact. There is no suggestion that there was a deliberate attempt on the part of the solicitor for the defendant to mislead by such misdescriptions.
Some examples of such misdescriptions referred to the plaintiff as "hanging" off a fence, where he was simply resting his hand on a high fence; the observation that he was pushing a "pram" rather than a light stroller; that he was seen to "drag" suitcases, rather than simply wheeling them by pulling on a handle, without much apparent effort; that he was seen to "bend" rather than leaning forward whilst vacuuming the interior of his vehicle; that he was carrying a "large dog" whereas the dog seen in the video surveillance material was not large; that he was seen to "carry" rather than lift and place an object into the boot of his vehicle; and that he was seen to "grab" rather than to simply take hold of, an airport trolley.
In the context of the evidence as a whole, I considered that the video surveillance evidence did not constitute a relevant contradiction of any material detail of the plaintiff's evidence, or the case sought to be made on his behalf. In my assessment that material did not serve to detract from the credibility, reliability or the truthfulness of his evidence. It did not contradict the psychiatric diagnoses made by the plaintiff's treating doctors, nor did it materially contradict the medico-legal opinion evidence tendered in the plaintiff's case.
The defendant fairly conceded that the video surveillance footage did not demonstrate that the plaintiff was not suffering from post-traumatic stress disorder, or depression. That footage did not demonstrate that he was not prone to experiencing panic attacks or episodes of faecal incontinence. The defendant also conceded that the video material did not show that the plaintiff was able to work in a job of the kind in which he was employed before the accident: T164.22 - T164.31. Similarly, the defendant was not able to point to any medical evidence to suggest that the plaintiff's complaint of episodic faecal incontinence was unrelated to the accident: T168.46 - T169.20.
I have concluded that the medico-legal opinions in this case must be viewed in the perspective of the broad pattern that emerges from the factual content of the literally hundreds of diagnostic, treatment and work fitness assessments that the plaintiff has consistently attended, between his initial hospitalisation on the day of the accident, and up until the weeks before the hearing.
The extensive factual chronology of those consultations and assessments will be laid out in the course of my reasons as an aide to the analysis of the medical issues, and as a prelude to stating reasons for my findings on the critical areas of conflict in the evidence, including expert evidence, as to the nature and the extent of the plaintiff's residual accident-related problems.
In light of findings I have made on the preponderance and the detail of the medical evidence, and for reasons that will be made plain in the course of my reasons that analyse the conflicting medico-legal opinions, and on reviewing the medical and allied evidence as a whole, I consider that the video surveillance material and the medico-legal opinions as relied upon by the defendant, did not provide persuasive evidence to suggest the plaintiff was not affected by the accident as he has claimed. That is so particularly as to his described experience of chest pain, his psychological symptoms, his faecal incontinence, and his unfitness for work.
I am reinforced in my views about the video surveillance material by the comment made by the MAS Assessor, Dr Mathew Jones, a psychiatrist, who stated that the considerable amount of surveillance material made available to him at the time of his assessment was not informative from the psychiatric perspective: Exhibit "6", p 219.
The defendant drew upon the content of the video surveillance footage and the tendered medico-legal reports to suggest to the plaintiff that he was exaggerating the effect of the accident upon him. The plaintiff denied that proposition: T82.33. In that regard, the plaintiff also denied that he was able to comfortably use a vacuum cleaner at his home (T71.13 - T72.15); he denied that he was entirely comfortable shopping (T72.26 - T72.48); he denied he was able to carry heavy items in his right hand for more than a very short period of time (T72.50 - T73.1); and he denied he was able to lift his infant daughter comfortably (T73.25 - T73.29).
In assessing the plaintiff's evidence generally, and on those matters in particular, the video surveillance material, even as commented upon by the defendant's medico-legal experts, did not persuade me that the plaintiff's cited denials should be rejected, and I did not consider that video surveillance material to be a sufficient basis upon which to either find or to infer that the plaintiff gave untruthful evidence in making those denials, or in his account in which he described how he is affected by pain.
The plaintiff denied the generalised proposition that the video surveillance material that he was asked to view suggested that he was far more capable of physical activity than was evident from the way he talked about himself when he had seen "the doctors": T88.50 - T89.4. I have accepted as truthful, his denial of that proposition.
The plaintiff made fair concessions when asked about some of his activities, such as being capable of doing some "just light welding": T92.4. However, it was not suggested that he could sustain that activity, such as in an employment situation.
I have accepted the plaintiff's denial to the effect that he could not fulfil the role of a part-time cleaner in a shopping centre because he would not be able to mentally handle such a position: T93.14 - T93.25. In light of the medical evidence that I have accepted, I considered that the plaintiff's answer in that regard was not inherently or glaringly improbable.
I have also accepted the plaintiff's denial (at T98.47 - T99.11) of the proposition that he could work in a position in a spare parts facility serving the public. His denial of that suggestion was based on his belief that he gets muddled and mixes things up, and because he struggles to talk to people when confronted. An overall reading of the medical evidence does not reasonably suggest that his evidence in that regard was improbable or unlikely to be true.
The plaintiff was challenged on his evidence to the effect that his problems with faecal incontinence began straight after the accident. In the course of that challenge it was suggested to him that he had first complained to a doctor about faecal incontinence in 2011. He reconciled his reporting of such problems in 2011 by stating that was the time "when it started to get really bad", so he could not control it: T85.27 - T85.40. In light of his stated and his assessed memory problems, and in reading the medical evidence and its chronology as a whole, I considered that his evidence to the effect that he had thought he had in fact complained of such problems beforehand (T87.1 - T87.21) should not be discounted or construed against his credit as a witness.
I considered this to be so especially where the complete clinical records were not in evidence, and in light of the medical documentation in Exhibit "L", which records the plaintiff's abdominal injuries and the evolution of his accident-related paralytic ileus, and his bowel problems between 18 May 2007 and 31 May 2007, when read alongside the plaintiff's evidence he was having bowel problems in the form of faecal incontinence straight after the accident: T83.15.
The sequence of the evolution of the plaintiff's bowel problems in that regard was first, bowel obstruction followed by treatment with enemas, and ultimately, a colonoscopy. He then had bowel difficulties due to his need to take analgesic medication, and subsequently he experienced episodic faecal incontinence. In my assessment, it is not necessary to seek to ascribe a precise physical or a pathological cause for that problem, where the unchallenged and not otherwise improbable medical evidence is that the plaintiff's faecal incontinence is probably associated with his experience of panic attacks: Exhibit "C", Tab 1, p 25. In that regard, I have accepted that since the subject accident, the plaintiff has relevantly experienced such panic attacks, including when anxious about his problems or when he becomes anxious about the consequences of the accident (Exhibit "C", Tab 1, p 3), where these are ever-present phenomena for him.
In cross-examination, it was specifically suggested to the plaintiff that he had intentionally exaggerated his answers on memory testing by Dr Langeluddecke, so as to pretend to be more disabled than was really the case. I have accepted the plaintiff's denial of that challenge to his credit: T87.23 - T88.6.
I considered that Dr Langeluddecke's opinion, in which she made criticisms of the plaintiff's memory performance, which in my view, must be read down in light of the plaintiff's pre-accident diagnosis of having a weakness in the visual memory area, along with his history of limited concentration span, and issues with his auditory memory, and learning difficulties: Exhibit "2", pp 3 - 6. Dr Langeluddecke did not appear to have accessed that pre-accident material when she expressed her views on the credibility of the plaintiff's responses to the memory testing she administered to him.
Dr Langeluddecke's report did not suggest that she had provided the plaintiff with a fair opportunity to comment on the serious allegation which she raised about his probity, and, which in reality, amount to an allegation of fraudulent behaviour on his part. For reasons that will become clear in my analysis of Dr Langeluddecke's report, I considered that her reasoning did not properly or reliably support a challenge of that kind to the plaintiff's credit.
The challenge to the plaintiff's credit, as outlined at paragraph [39] above, where the generalised but denied proposition was put to him that he presented himself and portrayed his problems to examining doctors as being less capable of physical activity than was the fact (T89.1 - T89.4), was based on the video surveillance footage which is the subject of findings at paragraph [35] above.
I record my finding that the aforementioned challenge lacked sufficient particularity and fairness of opportunity for comment by the plaintiff to support the specific criticisms of the plaintiff's credit as was respectively raised by Dr Haik, Dr Langeluddecke and Dr Schutz.
Dr Haik was the first of the defendant's experts to make comments adverse to the plaintiff's credit along those lines. This was in his report dated 9 June 2009: Exhibit "6", pp 1 - 8. Dr Haik's conclusion (at p 8) was that the plaintiff did not suffer from a psychiatric disorder and "clearly does not have an 'unconsciously' driven psychological condition that might explain his chronic pain and ongoing disability". The clear implication insinuated by those remarks of Dr Haik in his cited first report, was that the plaintiff's presentation was, consciously on his part, not genuine.
In Dr Haik's second report, dated 5 October 2010, he elevated his criticism of the plaintiff. He reiterated his earlier opinion that there was no evidence the plaintiff suffered from a psychiatric disorder, and he raised, somewhat speculatively, "a serious concern that his presentation may be deliberatively driven by an aspiration for external incentives", which I interpret to mean that Dr Haik was asserting the plaintiff was feigning a psychiatric disorder for secondary or monetary gain: Exhibit "6", p 28. Dr Haik did not differentially analyse that concern, or its basis in his thinking, in order to provide a concluded opinion on the "concern" he had raised. His comment was therefore inconclusive at that stage.
In Dr Haik's third report, dated 15 October 2013, he further elevated his criticisms of the plaintiff. He not only reiterated his earlier views as cited above, but he went on to speculate, and to positively suggest the plaintiff was doing whatever was required to achieve financial reparation for his early life difficulties. Dr Haik further suggested that the plaintiff's complaint of loss of bowel control leading to defecation was "a quite bizarre symptom" that "cannot be explained from a medical perspective": Exhibit "6", p 75. In making that last-cited comment, Dr Haik did not seek to draw any relevant distinction between the different disciplines of physical and psychiatric medicine and he did not point to any medical evidence from the physical medicine specialists to support his view. He did not include a discussion of a possible psychological cause, as was identified by Dr Klug to be the plaintiff's panic attacks. Dr Klug disagreed with Dr Haik's cited formulation, as will be made plain.
There are several difficulties and reasons that preclude an acceptance of Dr Haik's opinions that are critical of the plaintiff in this case. His reports were admitted into evidence over the objection of the plaintiff. His reports were tendered because they had been served, and as they contained various forms of acknowledgment of the obligations of an expert witness. Therefore, the opinions in those reports had to be considered and analysed as to their content, if for no other reason, than to simply record the plaintiff's reported histories as given at the respective times he was seen by Dr Haik.
A further difficulty raised by the plaintiff concerning an acceptance of the opinions of Dr Haik in this case, is that on account of his stated retirement from practise, the defendant sought to continue the sequence of his reports, or to at least supplement them, with the opinion of another consultant psychiatrist, Dr Sharon Reutens who was appointed to replace him. She had examined the plaintiff for that purpose on 18 January 2017: Exhibit "G". Dr Reutens' report of that consultation was withheld from service by the defendant and it was not tendered in evidence. In the cited circumstances, I conclude that I can safely infer that this was because her opinions in this case would not have assisted the defendant to seek to assert the continued applicability of the cited views of Dr Haik, and that her views were not otherwise contradictory of the case sought to be made by the plaintiff: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
In due course, when seeking to reconcile the conflicting expert opinions on matters of diagnosis, and on the credit of the plaintiff in this case, I will identify in full, my reasons for rejecting the respective opinions of Dr Haik, which, in my opinion, in essence, do not fulfil the necessary legal pre-requisites to justify Dr Haik's reports being properly classified as reliable expert opinions: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
I now turn to a consideration of the reports of Dr Schutz from the perspective of an analysis of the plaintiff's credit, truthfulness and reliability as a witness. Dr Schutz made critical comments also suggestive of doubts over the veracity of the plaintiff's complaints.
In Dr Schutz's initial report, dated 15 June 2009, he made no adverse comments about the plaintiff. He postulated (at p 17), that the plaintiff's right chest wall pain, a critical matter in dispute, could have been due to possibilities such as peripheral nerve neuroma, intercostal neuralgia at the site of insertion of the intercostal drain, or intercostal neuralgia due to fractured ribs, the latter of which was later excluded as a mechanism, following imaging of the plaintiff's chest. In his second report also dated 15 June 2009 (at p 20), Dr Schutz identified a classification of injury problem or anomaly for assessing chest wall injuries according to the Medical Assessment Service criteria, in that the required AMA4 Guide to the assessment of permanent impairment, did not include any criteria for assessing chest wall injuries. He therefore sought to assess that issue by a process of artificially imputing an analogous condition, said to be "equivalent".
In his third report, dated 18 October 2010, Dr Schutz said (at p 42), based on his interpretation of the 4 DVDs of video surveillance material that he saw relating to the plaintiff, that the plaintiff appeared to have significantly overstated the effect of his symptoms. It appears that Dr Schutz's view in that regard was based on absence of signs on the DVDs, of the plaintiff coughing: Exhibit "6", p 43.
The fairness of Dr Schutz's conclusion in that regard must be questioned as a proper basis for making a finding adverse to the plaintiff, particularly as Dr Schutz did not give the plaintiff a fair opportunity to comment on the conclusions he had formed on viewing those DVDs. On that issue of the plaintiff's coughing, I record my factual conclusion, which is not a matter of medical diagnosis, that it is difficult to conclude from the DVD video surveillance evidence that I have viewed, that the plaintiff could be seen not to have coughed, painfully or otherwise, as was suggested by Dr Schutz: Exhibit "6", p 43.
For Dr Schutz's stated conclusion to reliably apply as to the absence, in the video surveillance material, of any sign of the plaintiff having coughed, it would have been necessary for Dr Schutz to have fairly put the basis of his view to that effect to the plaintiff for comment. I find that he did not do so. This casts significant doubt over the reliability of Dr Schutz's conclusions that were expressed as being adverse to the plaintiff's credit (at p 47), where Dr Schutz had accepted the simplistic but inherently ambiguous if not confusing proposition put to him by the defendant's solicitor, to the effect that the plaintiff exhibited signs or features of exaggeration or embellishment.
In my assessment, those acquiescent observations by Dr Schutz should have little if any evidentiary value, as Dr Schutz had not placed them squarely before the plaintiff for him to comment upon, either by way of acceptance or refutation. Accordingly, that component of Dr Schutz's opinion should be seen to be unfair to the plaintiff, and must be substantially discounted as a criticism of the plaintiff's credit, particularly as Dr Schutz did not adequately specify what he considered to be "significant embellishment and exaggeration during the examination": Exhibit "6", p 47. Criticisms of that kind should be fairly supported by reasons, and not left as vague and non-specific assertions, as is apparently the case here: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
The same comments apply to Dr Schutz's two reports dated 27 August 2012 (at Exhibit "6", pp 51 - 65), where (at pp 60 and 65) he said the plaintiff's chest wall symptoms were in excess of what would be expected, without identifying what was not in excess, or what constituted the margins of excess, and without going on to explain the basis for that view, and without discerning or identifying any possible differential diagnostic alternative, and where he considered the plaintiff's chest wall complaints were a voluntary exaggeration or embellishment, without either fairly putting that view to the plaintiff for his comment, or without giving adequate explanatory reasons for him taking that adverse view.
Accordingly, Dr Schutz's 27 August 2012 remarks critical of the plaintiff must be substantially discounted as I considered that they did not represent a fair basis for making credit findings adverse to the plaintiff. Furthermore, his remarks were at odds with the variously concluded views of two consultant neurologists, Dr Geoffrey Boyce and Dr John O'Neill, whose reports will be referred to in the chronology of consultations and assessments, and analysed at a later point in these reasons.
I considered that Dr Schutz's two reports dated 20 January 2017 should be viewed in the same light as his earlier reports, as stated in the preceding paragraph. The second of those latter reports, which was based on video surveillance observations that, to Dr Schutz, suggested there was no outward sign that the plaintiff had the restrictions he claimed, contained a suggestion by Dr Schutz that was not fairly put to the plaintiff for his comment. The longer of those two reports was in essence a reprise of Dr Schutz's earlier opinions. Although he did fairly acknowledge (at p 124), that it was not possible to entirely discount "the possibility of symptoms", he nevertheless felt able to assert that: "given the very significant inconsistencies, which appear very likely to include voluntary exaggeration there is considerable doubt about the level of symptoms and the effect of those symptoms causing limitation". He did not explain the balancing or evaluation exercise that led him to that expressed view.
Dr Schutz did not adequately explain that view with the required level of reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). No opportunity was given for the plaintiff to comment on those views. In my assessment, Dr Schutz's cited report is therefore not a reliable basis for making adverse credit findings against the plaintiff. Dr Schutz's adjectival description of "significant inconsistencies" was insufficiently explained to render it to be a reliable conclusion for the purpose of making adverse credit findings against the plaintiff.
A further reason for discounting Dr Schutz's cited views is his concession (at p 125), that there were psychiatric factors to be considered, and which were outside the scope of his expertise. Dr Schutz's simplistic adoption (at p 128), without adequate reasons, of the defendant's solicitor's invitation to accept the proposition that the plaintiff displays signs or features of exaggeration or embellishment, must, as earlier identified, be seen to be confusing at best. This is because Dr Schutz not only did not explain which of the alternative propositions that were there stated, he was agreeing with, but he also did not give adequate reasons for such an adverse view, on a matter of such importance: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Dr Langeluddecke was the third expert relied upon by the defendant concerning comments as to the plaintiff's motives and credit: Exhibit "6", pp 80 - 102. An examination of her lengthy report reveals that it did not relevantly include an adequate elaboration, by reasons, for her views that were expressed to be critical of the plaintiff's credit.
My opinion in that regard is in part based on an evaluation of Dr Langeluddecke's statement (at p 96), that she had administered a Test of Memory Malingering (TOMM) to the plaintiff where, nowhere in her lengthy report does she explain her interpretation of the results of her testing of the plaintiff's memory by reference to that specific test. She merely stated the numerical results of that test and stated that they lacked credibility, without explanation as to why that conclusion arose (at pp 98 - 99, 101). Those circumstances led me to the conclusion that her comments on the plaintiff's memory and cognitive functioning are inadequately reasoned insofar as she seeks to impugn his credit: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
In my assessment, Dr Langeluddecke's report lacks a transparent basis for her expressed conclusions that purport to reflect adversely on the plaintiff's credit concerning the testing of his memory. I have concluded that her opinions do not provide a reliable basis for impugning the plaintiff's credit with the assertions she has made (at pp 83 - 84), to the effect that she thought the plaintiff was "certainly" malingering in relation to his cognitive difficulties and "probably" in the case of his complaints and psychological symptoms. On analysis, her reasons for those views were not supported by the required level of reasoning, and her cited opinions are in this case, an unacceptable basis for making findings adverse to the plaintiff's credit.
In summary, I considered that the respective negative comments made about the plaintiff and his motives by Dr Haik, Dr Langeluddecke and Dr Schutz, as relied upon by the defendant, were not adequately supported by cogent reasons of the pre-requisite kind demanded by the rules governing expert evidence: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Instead, I found the cited opinions of those examiners were an unreliable basis upon which to make adverse credit findings against the plaintiff. For reasons that will be made clear, I have rejected those cited opinions, and instead I have accepted the numerous and otherwise identified opinions of other treating and assessing practitioners that will be referred to later in these reasons, as relied upon by the plaintiff, and which support his case. Those reports were not marred by unreliable comments of the kind that I have cited as appearing in the reports relied upon by the defendant.
I have accepted that the plaintiff, and his partner, Ms Triplett, gave straightforward, unembellished, truthful and reliable evidence on the factual matters that they described in their respective testimonies. In my view, for reasons that will be made plain, none of the tendered medico-legal reports containing remarks critical of the plaintiff, provided a reasonable or a reliable basis for a contrary conclusion. In my view, neither did the video surveillance material provide a rational basis for a contrary conclusion.
Given my findings as to the credit of the plaintiff and that of his partner, and accepting the plaintiff's evidence that he gave truthful accounts when he provided histories to the various practitioners who examined him, I consider it is appropriate to draw upon the reports and records of those practitioners as evidence on relevant factual matters, particularly on matters of background, work history, injuries, treatment and the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142] - [143]; s 60 of the Evidence Act 1995.

Facts

I now turn to a more detailed consideration of the facts. Unless otherwise stated, my findings of fact now follow, concerning the following topics: 1. the plaintiff's pre-accident background circumstances; 2. the plaintiff's pre-accident employment history; 3. the plaintiff's injuries and the initial treatment he received, including concerning some complications that occurred; 4. the further medical and allied reviews that the plaintiff has attended; 5. the diagnostic conclusions of treating doctors; 6. findings on conflicting opinions in the expert medico-legal evidence; 7. the nature of the plaintiff's disabilities; 8. the effect of those disabilities upon the plaintiff's ability to work; 9. the effect of those disabilities on the plaintiff's domestic tasks; and 10. the question of mitigation.

(1) Plaintiff's pre-accident background

The plaintiff was born in 1984. He was noted to have been an enthusiastic pupil at school, but it was also noted that he experienced difficulties with some academic tasks. He experienced some early learning difficulties. He received and had benefited from early remedial educational assistance provided to disadvantaged rural residents by the Far West Scheme aimed at assisting children in remote locations. The plaintiff's early medical records show that it was considered by those providing for his medical needs that he had Aarskog's Syndrome, a genetic disorder associated with a mild intellectual impairment.
The plaintiff initially received remedial reading assistance between the ages of 7 and 11 years. It was considered that this would have given him "survival level" reading skills by the end of his primary school placement: Exhibit "2", pp 15 - 23. The plaintiff's treating paediatrician when the plaintiff was aged 11 years, was of the opinion the plaintiff had familial intellectual delay: Exhibit "2", p 28. There is no evidence this was an impediment to the plaintiff ultimately pursuing or sustaining a gainful manual occupation.
The plaintiff completed his secondary schooling at Lightning Ridge in 2001, when he obtained the School Certificate. He and his partner of 11 years have two young children. At present she works in an administrative position to support the family financially. They have moved to various locations in NSW on several occasions in order for this to occur.
There was nothing within the plaintiff's medical or personal history to suggest that he had only a limited ability to exercise an earning capacity in unskilled or semi-skilled manual occupations. Nor was there anything in the evidence to suggest that his pre-injury circumstances indicated he might have a foreshortened life expectancy, or a foreshortened working life, or an impairment in his ability to enjoy the amenity of his life. Before the subject accident, he was a proficient golfer in his spare time.

(2) Plaintiff's pre-accident work history

On leaving school in 2001, the plaintiff pursued a number of employment opportunities. He became an apprentice in a bowling club where he worked for about a year, but he left that work due to interpersonal difficulties with his employer and his employer's son. He then obtained employment as a contract gardener in Coffs Harbour for about 6 months. He has also worked as a labourer in an abattoir for about 3 months. He then returned to his home town of Lightning Ridge and did some labouring work on a remote property for several years. He ceased that work because, at that time, he felt the location of that work was too remote. He then worked as an opal miner for about 6 months, but this ceased because he found no opals. He then spent about 2 months without work until he obtained his pre-accident employment in the mining industry, with Tom Browne Drilling Services Pty Ltd, a mineral exploration drilling contractor. I gained the impression that before the accident the plaintiff was a resourceful person who demonstrated an ability to adapt to changing circumstances.
On 12 April 2007, the plaintiff underwent a comprehensive pre-employment Health Assessment carried out by Dr Kumara Mendis before commencing his employment with Tom Browne Drilling Services Pty Ltd: Exhibit "C", Tab 8, pp 104 - 116. No significant abnormalities in the plaintiff were noted in that examination, and (at p 112), he was assessed as being suitable for employment without any relevant restrictions. He then commenced work with that company on 24 April 2007.
Dr Mendis' pre-employment medical assessment of the plaintiff certified him as suitable and fit for working in remote areas, to engage in both light and heavy manual work, and to operate machinery, including to work in dusty conditions in the mining industry. In that employment his assigned work was predominantly labouring, including the manhandling and the assembly of machinery components.
The plaintiff said, and I accept, that his pre-accident work intentions were to continue to work in a rural setting in the mining industry, which was the type of work for which he was assessed as being suitable. For someone in his position, with a limited education, but with a practical mechanical aptitude, that work was attractive to him and was well-paid. He seemed temperamentally suited to that type of work.
As a result of the subject accident on 15 May 2007, the plaintiff's stated work ambition of remaining in the mining industry was short-lived. Beforehand, on 1 May 2007, just 2 weeks before the subject accident, whilst working as a driller's assistant, he sustained what appears to have been a soft tissue back injury, which resulted in him being off work for 9 days, before he returned to work on light duties on 10 May 2007. He then continued in those light duties until he was involved in the subject motor vehicle accident, on 15 May 2007.
My assessment of the evidence of the plaintiff and the medical evidence relating to that injury on 1 May 2007 was that any work incapacity from that earlier injury was that it was most probably only of a temporary nature and extent insofar as an ability to work was concerned. There is no evidence to suggest that the plaintiff's described back injury on 1 May 2007 had or could have resulted in any permanent restrictions for the plaintiff with regard to his ability to work, or with regard to his ability to enjoy the amenity of his life.

(3) Injuries from the accident and initial treatment

In the subject accident, the plaintiff sustained a laceration to his right elbow, extensive multiple and deep lacerations to the right side of his chest, a contusion and a penetration injury of his right lung, a haemothorax requiring drainage, a contusion to a lobe of his liver, a kidney contusion, and he also lost a large amount of blood.
After the plaintiff was extricated from his badly damaged vehicle, an ambulance took him to Dubbo Base Hospital where he remained as an in-patient for three weeks. The full extent of those admissions and progress notes were not in evidence. This turned out to be a matter of some significance to the assessment of some of the medico-legal opinions in this case.
In the plaintiff's initial treatment, his wounds were cleaned and treated by surgical repair. He required significant blood transfusions. He had an indwelling right-sided chest drain inserted into his chest cavity between his ribs, and he developed subsequent thrombotic problems in his neck. He was given a urinary catheter. He suffered a bowel ileus, and he required repeated enemas, and a subsequent colonoscopy.
Some 3 days after his initial discharge from Dubbo Base Hospital, the plaintiff developed a painful lump due to an emergent blood clot or thrombosis on the left side of his neck, which he considered to have been due to his required left-sided sleeping posture following the prior placement of a central intravenous line on the right side of his neck. These events required his re-admission to Dubbo Base Hospital. Anticoagulant therapy then ensued, followed by a transfer of the plaintiff to the Prince of Wales Hospital in Sydney, where he remained under specialist treatment and observation for a further week.
One of the plaintiff's treating general practitioners, Dr Glen Mobilia, was asked to provide a report that included a history of the onset and the subsequent course of the plaintiff's accident-related problems. Given the plethora of medical material tendered in this case, and the absence from the evidence of the full hospital notes, at this point, it is appropriate and convenient to cite an extract from Dr Mobilia's detailed medical summary of the course of those events, as follows: "On the 15th may (sic), 2007 the patient was employed by Tom Brown (sic) Drilling Pty Ltd as a drilling assistant and had been so employed for approximately some 3 months preceding the accident. On the above date the patient was traveling from his home in Naramine (sic) to his work place at Dubbo driving a mitsubishi triton 2 door club cab vehicle. At approximately 7 am the patient was travelling along the Newell Highway and was approaching a blind turn in the roadway. A truck travelling in the opposite direction was towing a farm implement believed to be a scarifier which was as wide as the dual way carriageway. The patient was travelling at 90 kph resulting in the drivers (sic) front half of the vehicle colliding with the farm implement. The impact of the accident resulting in damage to the patients (sic) vehicle to the depth of the front doors. The patients (sic) vehicle was assessed subsequently as an unrepairable right off. At the scene Ambulance Report sets out the following injuries. 'Patient sitting in the car at the (sic) the accident damaged vehicle with a bystander in attendance. The patient was trapped in the vehicle by the scarifier as it came to rest post accident. The patient was reported to be orientated, absent of poriferal (sic) pulses, was reporting abdominal and chest pain with shortness of breath. He was observed to have a 12 cm laceration to the right side of his chest with associated skin abrasion and bruising. Preceding the ambulance the patient had temporarily lost consciousness. The patient was then conveyed to the Dubbo District Hospital by ambulance. He was examined in the emergency Department. The patient was transferred to the intensive care unit. He has no memory of the intervening events. According to hospital notes the patient underwent surgery to repair the lacerations on the right chest wall on the 15th May, 2007. He remained in intensive care for approximately 1 week. Had difficulty passing stools and was vomiting. On stabilization the patient was transferred to the medical ward and remained there for 2 days. He was still not able to pass stools and accordingly a colonoscopy was performed, on the 22nd May, 2007. The patient subsequently (sic) [developed] a pneumothorax which was treated with a chest drain and same resolved. A chest x ray of the 24th May, 2007 confirmed effusions of both lung fields. On the 31st May, 2007 a ct of the abdomen was performed. indicating a laceration to the liver and associated haematoma. Diminution of the free blood component in the abdominal cavity with improving peritonitis. There was a significant amount of free fluid in the pelvis. Right renal contusion with an area of possible infarction. The patients (sic) ileus of the bowel had increased significantly consistent with an incomplete bowel obstruction or paralytic ileus. Radiology of the lungs indicated small right basal effusion and patchy atelactic (sic) change of the right lung base. Tony remained an inpatient at the Dubbo Hospital for approximately 3 weeks. Some 4 days post discharge on the 7th June, 2007 the patient developed a painful lump on the left side of his neck, an ultrasound was performed on the 8th June 2007. The ultrasound demonstrated an occlusive thrombus in the subclavian vein and proximal portions of the internal and external jugular veins. In other words a blood clot occluding these veins accounting for the left sided painful neck lump. He was treated initially with a heparin infusion. The patient was stabilised and transferred by plane to Prince of Wales Hospital in Sydney. The transfer notes made reference to contusion injuries to the right kidney, right lobe poster laceration to the right lobe of the liver and penetrating injury to the right lung. Tony remained an inpatient at the hospital for approximately 1 week. The subclavian vein thrombus was treated conservatively with intra venous heparin. During his inpatient stay a chest xray (sic) dated the 19th June, 2007 was performed indicating left hemithorz (sic) soft tissue oedema secondary to the subclavian thrombosis. At the same time a ct of the abdomen was performed demonstrating liver laceration and evidence of collections of bile and haematoma. Evidence of right kidney renal contusion in the superior pole of the right kidney and areas of reduced perfusion in the medial portion of the right kidney. Further there was a pelvic collection of fluid and blood, A repeat Ct scan of the abdomen and pelvis was performed on the 15th June, 2007 confirmed the liver collections predominantly in the right lobe and the right kidney lesions including a wedge shaped area suggestive of infarction. These findings remained unchanged from the previous radiology. The pelvic fluid collections were resolving. Treatment was changed from heparin to warfarin. The anticoagulant treatment continued for a further 3 months. Tony was discharged from hospital on the 18th June, 2007. There was follow up physiotherapy at Naramine (sic) Physiotherapy and Sports injury Clinic (Lisa). The patient was initially in receipt of weekly treatments, then fortnightly then monthly treatments for approximately 6 months. Treatments were terminated as the patient was unable to continue due to pain on the right side of his chest. Tony continued exercising at home including the use of a secondhand home gymnasium in order to gain muscle strength. These treatment (sic) provided some improvement in general condition. On Discharge Tony was regularly reviewed by Dr. Kirkby and underwent ongoing inr blood tests to manage his warfarin use. During this time Tony became what he describes as increasingly depressed and began crying in my rooms when recounting this period. He experienced nightmares involving the circumstances of the motor vehicle accident, flashbacks re same and anxiety and panic attacks when driving a motor vehicle. His mood and behavior (sic) changed and he became increasingly irritable and short tempered towards his partner. He became increasingly distressed with regards (sic) his bleak future work prospects. He was a promising golfer and post accident he has not been able to play golf. He won a number of area amateur tournaments. He has since tried to play golf but was not able to resulting for 3 weeks of excruciating pain. He recounts becoming angry and distressed every time a truck passed by. He would become irritable and become verbally abusive towards his partner, he began talking about suicide. On a number of occasions around this time Tony made attempts to hang himself by the neck. Tony's partner attempted to have Tony seek help however Tony resisted angrily saying that he didn't need help as he had never had any issues prior to the motor vehicle accident. Concerns with regards to self harm reached a point wherein Tony was forced by his partner to seek help from Dubbo Mental health. Notes dated on even date indicate that Tony was experiencing significant pain issues, exhibited symptomatology consistent with major depression and post traumatic stress disorder relating to the motor vehicle accident. Further he had reported making 2 attempts at self harm by hanging strangulation. He was noted to be extremely distressed, he was noted to exhibit increased arousal, exaggerated startle, irritability, anger, poor concentration and disturbed sleep/insomnia. At this time he felt he was being pressured by the rehabilitation provider. The patient clearly had symptomatology consistent with post traumatic stress disorder. He was exposed to a life threatening traumatic event which almost ended in fatality. The circumstances surrounding the accident were consistently being relived by the patient resulting in recurrent nightmares and flashbacks of the event. Tony was subsequently reviewed by a Dr Richard Burek Psychiatrist. Dr Burek reported that Tonys (sic) Depression had improved being treated with Efexor 150 mg day however broken sleep and irritability were still issues. The patient reported terrifying dreams 3 times per week wherein he relived the events of the trauma and other gruesome possibilities including decapitation. Further the patients (sic) anxiety and panic attacks experienced when driving requiring the company of a passenger to contain his anxiety. Consideration was given to the consideration of introducing valproate to manage his pain and nightmares. He was reviewed on approximately 5 further occasions by Dr Burek." [Extracted from Exhibit "2", pp 327 - 334]
Although the acute effects of the plaintiff's injuries have subsided over time, the plaintiff has been left with a number of residual physical and psychological disabilities, including psychiatric problems. Before setting out my findings on those matters, it is convenient to first survey, review and consider, the voluminous medical and allied evidence that has been tendered in the proceedings.

(4) Subsequent medical and allied reviews

Subsequent to his initial treatment, over the course of the 10 years since the accident, the plaintiff has undergone a significant number of medical and allied assessments relating to his injuries and his case. Changes of personnel amongst the plaintiff's treating practitioners have occurred over time due to the fact that he had changed his place of residence on a number of occasions, which required that he consult different general practitioners who referred him to various specialists.
Some of the assessments of the plaintiff comprised reports from the Medical Assessment Service. Those reports have been included in the review that will shortly follow, but with the qualification and caution that those reports are not reports from compellable experts and as such, the authors are not required to comply with the Expert Witness Code or UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c), as those reports only deal with the threshold question of entitlement to damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90], following Brown v Lewis [2006] NSWCA 87 at [23].
The medical records kept by the Narromine Shire Family Health Centre relating to the plaintiff for consultations at that centre in the period between 12 April 2007 and 19 May 2009 were tendered: Exhibit "D", Tab 19, pp 149 - 290. The salient features of those records include the details of the plaintiff's earlier referred to 12 April 2007 work fitness assessment carried out by Dr Mendis (Exhibit "D", Tab 19, p 140, pp 166 - 175), as well as the details of the plaintiff's 1 May 2007 thoracic back strain at work due to heavy lifting, which later resulted in a fitness for work certificate for the period 10 May 2007 to 23 May 2007, subject to a stated restriction of no heavy lifting (Exhibit "D", Tab 19, pp 140 - 141);
The plaintiff's medical records also contained references to a series of post-accident general practitioner consultations between 7 June 2007 and 7 May 2014 (Exhibit "D", Tab 19, pp 141 - 148), with related test results, workcover certificates, as well as some correspondence with the insurer and other treating practitioners (Exhibit "D", Tab 19, pp 149 - 290). Although the parties did not take me to that material concerning in any particular detail, some relevant dates, perspective events and certificates will nevertheless be incorporated into the chronology that will shortly follow, as those dates have an overall relevance to the required assessments.
The extensive clinical records of the plaintiff's general practitioner, Dr Mobilia, were tendered: Exhibit "D", Tab 22, pp 472 - 552. Those records show that between 10 November 2010 and 27 November 2017, the plaintiff attended Dr Mobilia's practice on some 174 occasions for consultations on accident-related matters. Dr Mobilia's printed notes demonstrate that at times, those consultations were prolonged, and resulted in extensive and carefully set out notes that charted in detail the course of the plaintiff's presenting problems, and included in those notes was relevant correspondence with other treating specialists.
Given the nature of the challenges made to the probity of the plaintiff's evidence, it is necessary that I review all of the reports of those who have assessed the plaintiff over time, in context, and as a prelude and an aide to making findings concerning some conflicting medico-legal opinions on particular diagnostic matters, and regarding the plaintiff's ongoing accident-related disabilities, and whether or not the plaintiff was malingering, exaggerating or embellishing his problems, as asserted on behalf of the defendant.
The chronological sequence of those medical and allied reviews (which does not include all of the hundreds of consultations the plaintiff has had in respect of his injuries, as evidenced by the content of and the dates in the folder of payments schedules comprising Exhibit "K"), is as follows: 1. On 15 May 2007, Dr S Peat, of the Dubbo Base Hospital emergency department issued the plaintiff with a workcover medical certificate covering the period 15 May 2007 to 23 May 2007: Exhibit "E", Tab 32, pp 603 - 604; 2. On 29 May 2007, Dr C Gutierrez, of the Dubbo Base Hospital emergency department, issued the plaintiff with a workcover medical certificate covering the period 15 May 2007 to 15 June 2007: Exhibit "E", Tab 32, p 605; 3. On 12 June 2007, Dr Richard Kirkby issued the plaintiff with a workcover certificate that was current to 30 June 2007: Exhibit "D", Tab 19, p 280; 4. On 15 June 2007, the plaintiff underwent a CT scan of his abdomen and liver at the Prince of Wales Hospital, as a follow-up of his abdominal injury: Exhibit "D", Tab 20, pp 325 - 326; 5. On 18 June 2007, Dr K Lion of the Prince of Wales Hospital, issued the plaintiff with a workcover medical certificate covering the period 18 June 2007 to 18 December 2007: Exhibit "E", Tab 32, p 606; 6. On 6 July 2007, the plaintiff underwent a further CT scan of his abdomen and pelvis to follow-up his abdominal injury: Exhibit "D", Tab 20, p 327; 7. On 9 July 2007, the plaintiff was examined by Dr Koroush Haghighi, a consultant surgeon at the Prince of Wales Hospital, at the request of Dr Grassby, also a general surgeon, to monitor his neck thrombosis and his liver injury: Exhibit "D", Tab 20, p 320; 8. On 10 July 2007, the plaintiff underwent a further CT scan of his abdomen and liver at the Prince of Wales Hospital, as a follow-up of his abdominal injury: Exhibit "D", Tab 20, pp 322 - 324; 9. On 18 July 2007, Dr Haghighi took over the plaintiff's care at the Prince of Wales Hospital for "safe heparinisation": Exhibit "D", Tab 20, p 330; 10. On 28 July 2007, Dr Grassby noted the plaintiff still had a degree of discomfort in his right chest wall that occurred in association with activity: Exhibit "D", Tab 20, p 321; 11. On 5 August 2007, the worker's compensation insurer arranged an injury management plan of rehabilitation treatment with a review date of 13 November 2007: Exhibit "D", Tab 19, pp 217 - 226; 12. On 7 August 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate: Exhibit "D", Tab 19, p 276; 13. On 23 August 2007, Dr Grassby noted the plaintiff was still troubled by pain related to movement and physical activity, and had still not recovered from the effects of the accident: Exhibit "D", Tab 20, p 295; 14. On 27 August 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 September 2007: Exhibit "D", Tab 19, p 277; 15. On 4 September 2007, Dr Grassby issued the plaintiff with a workcover medical certificate: Exhibit "D", Tab 20, p 319; 16. On 11 September 2007, the plaintiff presented to Dubbo Base Hospital with a painful left scapula, and with a concern as to whether this was a symptom akin to a blood clot of the kind that he had experienced earlier. The clinical impression was muscular pain. He was discharged for follow-up by Dr Grassby: Exhibit "2", pp 115 - 116; 17. On 17 September 2007, Dr Grassby, issued a workcover medical certificate for the plaintiff's unfitness between 17 September 2007 and 21 December 2007: Exhibit "D", Tab 19, p 236; 18. On 17 September 2007, Dr Grassby issued the plaintiff with a workcover medical certificate. At that time, it was noted that the plaintiff was undertaking some volunteer work at a Narromine School: Exhibit "D", Tab 20, p 316. From the plaintiff's description, that work, assisting children with their reading, was a struggle for him, and was not sustainable: T18.2 - T18.25; 19. On 27 September 2007, the plaintiff was reviewed by Dr Grassby, at the request of Dr Kirkby: Exhibit "D", Tab 19, p 211. Dr Grassby noted that imaging of the plaintiff's liver showed improvement of the previously noted bilomas. Dr Grassby also noted chest tenderness on palpation, chest related lifting restrictions and a tremor on exertion of the right hand. On that date, Dr Grassby's handwritten notes (which are found at Exhibit "2", pp 104 and 120), in dot point form, state "· Bowels OK". It is not clear as to whether this meant there were no bowel symptoms reported or elicited, or whether the bowel was stated to be working properly, unlike when the plaintiff had a paralytic ileus. The matter was left unexplained and unexplored in the evidence; 20. On 27 September 2007, a further CT study of the plaintiff's abdomen and pelvis was undertaken, to monitor his intra-pelvic injuries: Exhibit "D", Tab 20, p 318; 21. On 27 September 2007, Dr Grassby provided the plaintiff with a workcover medical certificate covering the period 27 September 2007 to 31 October 2007: Exhibit "E", Tab 32, p 609; 22. On 12 October 2007, Dr Grassby provided the plaintiff with a workcover medical certificate covering the period 30 September 2007 to 30 October 2007: Exhibit "2", p 121; 23. On 16 October 2007, the plaintiff was reviewed by Dr Grassby, who noted the plaintiff's main complaints to be significant chest wall tenderness on effort and lifting: Exhibit "D", Tab 20, p 296; 24. On 22 October 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 November 2007: Exhibit "D", Tab 19, p 282; 25. On 22 October 2007, Dr Kirkby referred the plaintiff to Ms Lisa Bullock, a physiotherapist, asking that she take over his physiotherapy treatment from a previous physiotherapist, noting there was a slow recovery with lack of strength in the right arm, and pain from the right chest wall: Exhibit "D", Tab 19, p 212; 26. On 24 October 2007, the plaintiff's treating general practitioner Dr Robert Kirkby wrote to a claims consultant of the Compulsory Third Party insurer, Allianz Insurance Australia Ltd, setting out details of the plaintiff's post-accident problems, which included spasms across the upper abdomen, thoracic spine and ribs, a weakness in the right arm, and related pains and muscle spasms: Exhibit "D", Tab 19, pp 163 - 164, pp 209 - 210, pp 254 - 255; 27. On 24 October 2007, the plaintiff commenced a physiotherapy management plan carried out by Ms Bullock, in Narromine, at the recommendation of Dr Kirkby, under the auspices of the worker's compensation insurer: Exhibit "D", Tab 19, p 214; 28. On 22 November 2007, Dr Grassby reviewed the plaintiff and noted his persisting chest pain and shortness of breath. He suggested an appointment for pain management: Exhibit "D", Tab 19, p 234; Tab 20, p 313; 29. On 22 November 2007, Dr Grassby issued the plaintiff with a workcover medical certificate: Exhibit "D", Tab 20, p 311; 30. On 22 November 2007, the plaintiff underwent a further CT scan study of his thorax, abdomen and pelvis, which was interpreted as showing some improvement in the state of his previous liver injury: Exhibit "D", Tab 20, p 312; 31. On 26 November 2007, Dr Grassby referred the plaintiff to Dr Michael Dally for assessment of ongoing chest-related symptoms: Exhibit "D", Tab 20, p 314; 32. On 27 November 2007, Dr Grassby again noted the plaintiff's main complaint to be significant chest wall tenderness on effort and with lifting: Exhibit "D", Tab 20, p 315; 33. In December 2007, on a date that was not specified, the plaintiff was seen by Dr Richard Burek, a visiting psychiatrist with the Greater Western Area Health Service, a community psychiatric team. Dr Burek confirmed to the plaintiff's treating general practitioner that the treatment the plaintiff had received for depression, irritability, broken sleep and PTSD was appropriate, but that the prescribed medications needed to be monitored for side effects: Exhibit "C", Tab 9, p 117; Exhibit "D", Tab 19, p 110, p 213; 34. On 27 December 2007, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 January 2008: Exhibit "D", Tab 19, p 281; 35. On 3 January 2008, following his December 2007 assessment of the plaintiff, Dr Burek recorded his view that the plaintiff had post-traumatic stress disorder, complaints of pain, and nightmares: Exhibit "D", Tab 19, p 213; 36. On 29 January 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 3 March 2008: Exhibit "D", Tab 19, p 283; 37. On 7 February 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 1 July 2008: Exhibit "D", Tab 19, p 269; 38. On 7 February 2008, the plaintiff was seen by Dr Grassby, who noted that the plaintiff was in a very much disturbed state, having broken down emotionally, and was in need of assistance due to major psychological problems and chronic pain: Exhibit "D", Tab 19, p 215; Tab 20, pp 307 - 309; 39. On 3 March 2008, Dr Kirkby saw the plaintiff and noted he was making very slow progress, and was getting much pain from his right chest wall: Exhibit "D", Tab 19, p 216; 40. On 3 March 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 2 April 2008: Exhibit "D", Tab 19, p 284; 41. On 3 March 2008, the plaintiff's treating general practitioner, Dr Kirkby, wrote a letter to the worker's compensation insurer reporting that the plaintiff was making a very slow progress and was getting much pain from his right chest wall. At that time Dr Kirkby considered the plaintiff would never be in a fit state to work in the heavy labouring industry as a driller's assistant: Exhibit "C", Tab 10, p 118; 42. On 25 March 2008, at the request of his solicitor, the plaintiff was assessed by Dr John Voss, a consultant in rehabilitation medicine. Dr Voss carried out a thorough and comprehensive assessment of the plaintiff's presenting problems at that time: Exhibit "C", Tab 4, pp 72 - 84. I consider that the detailed summary prepared by Dr Voss represents an early and insightful survey of the plaintiff's injuries and of his early post-accident progress. I have drawn upon that material to identify my findings on those matters; 43. On 26 March 2008, at the request of his solicitors, the plaintiff was examined by Dr Peter Klug, a consultant forensic psychiatrist: Exhibit "C", Tab 1, pp 1 - 6. After reviewing the plaintiff's presenting complaints, noting there was no prior psychiatric history, and reviewing the plaintiff's personal history, and carrying out a mental state examination, Dr Klug (at p 5), noted the plaintiff to be of apparently average intelligence. Dr Klug (at p 6), identified his diagnosis that the plaintiff had considerable psychiatric symptoms in the form of a chronic post-traumatic stress disorder, which he identified as a severe anxiety disorder. He also identified a diagnosis of a chronic adjustment disorder with depressed mood, and noted that at that time, the plaintiff's psychiatric condition was not yet stabilised; 44. On 1 April 2008, following the plaintiff's move to Tottenham, NSW, the plaintiff authorised Dr Kirkby to provide his new general practitioner in that area with a copy of his medical records: Exhibit "D", Tab 19, p 208; 45. On 1 April 2008, Dr Salib, at Tottenham, issued the plaintiff with a workcover medical certificate covering the period 1 April 2008 to 30 April 2008: Exhibit "E", Tab 32, p 615; 46. On 29 April 2008, Dr Salib, at Tottenham, issued the plaintiff with a workcover medical certificate covering the period 1 May 2008 to 30 May 2008: Exhibit "E", Tab 32, p 616; 47. On 1 May 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate covering the period 1 May 2008 to 1 July 2008: Exhibit "E", Tab 32, p 617; 48. On 13 May 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 28 December 2008: Exhibit "D", Tab 19, p 272; 49. On 20 June 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate covering the period 1 July 2008 to 1 September 2008: Exhibit "E", Tab 32, p 618; 50. On 27 June 2008, the plaintiff was assessed by a multi-disciplinary team of pain management practitioners at the Pain Clinic at the Royal North Shore Hospital, for persistent right chest wall pain, PTSD and depression, and severe pain associated disability, at the referral of his treating surgeon, Dr Grassby: Exhibit "C", Tab 11, pp 118 - 122; Exhibit "D", Tab 20, pp 297 - 300. The psychiatric assessment component of that process (at p121), indicated that the plaintiff reported a substantial set of post-traumatic symptoms with substantial and dramatic mood swings. These were reported as being consistent with a post-traumatic syndrome, but also with frontal lobe injury, the latter being discounted because of the very limited period of retrograde and anterograde amnesia related to the subject accident. Significantly, the Pain Clinic assessment suggested the plaintiff's "catastrophised cognitions" underscore a requirement for education regarding his injuries. Cognitive behavioural therapy was indicated for fear avoidance, and anxiety / mood issues, the management of his post-traumatic stress symptoms, and for pain management. The psychiatric component of the assessment noted that the plaintiff's "development was overshadowed by educational adversity which has left him both sensitive to bullying and disregard, and vocationally under-resourced": That is a matter, insofar as it may be of relevance, which the defendant must accept as a pre-accident vulnerability on the part of the plaintiff: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406. Also of significance, it was noted by Dr Wrigley, the reporting pain management staff specialist (at p 121), that the plaintiff had neuropathic chest wall pain; 51. On 30 June 2008, Dr Kirkby certified his diagnosis that the plaintiff had neuropathic pain following the subject accident: Exhibit "D", Tab 19, p 199; 52. On 11 August 2008, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 27 October 2008: Exhibit "D", Tab 19, p 271; Exhibit "E", Tab 32, p 619; 53. On 9 August 2008, Ms Jody Turner, a rehabilitation psychologist, commenced formulating a plan aimed at trying to return the plaintiff to suitable part-time employment: Exhibit "D", Tab 19, pp 257 - 260; 54. On 9 September 2008, the rehabilitation consultant engaged by the worker's compensation insurer prepared a suitable duties plan for the plaintiff to carry out light duties for 4 hours per day for 5 days per week, with no lifting of items over 2kgs. That plan was provided to the plaintiff and to Dr Kirkby: Exhibit "2", pp 149 - 151. Nothing came of that plan as it appears from the workcover certificates that the plaintiff remained unfit for work; 55. On 29 September 2008, the plaintiff was treated at Dubbo Base Hospital for an unrelated left eye injury when a foreign body entered his eye and caused a painful corneal injury whilst he was carrying out some welding: Exhibit "2", p 148. There was no evidence of any lasting consequences of that eye injury; 56. On 28 October 2008, Dr Kirkby provided the plaintiff with a workcover medical certificate covering the period 28 October 2008 to 28 December 2008: Exhibit "2", p 152; 57. On 12 November 2008, a further injury management plan was prepared for the plaintiff. That plan was set to be reviewed on 12 May 2009: Exhibit "D", Tab 19, pp 289 - 290; 58. On 17 November 2008, Dr Kirkby provided the plaintiff with a workcover medical certificate covering the period 15 November 2008 to 28 December 2008: Exhibit "2", p 154; 59. On 16 December 2008; Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 28 December 2008: Exhibit "D", Tab 19, p 273; 60. On 9 January 2009, the St George Family Practice, at Lightning Ridge, requested a copy of Dr Kirkby's records after the plaintiff had moved back to Lightning Ridge: Exhibit "D", Tab 19, p 239; 61. On 27 January 2009, Dr Charles Brooker and Associate Professor Michael Nicholas, both of the Royal North Shore Hospital Pain Clinic, wrote to Dr Kirkby, confirming that the plaintiff was assessed as suitable to start the ADAPT pain management programme at that hospital for 3 weeks commencing on 2 February 2009: Exhibit "D", Tab 19, p 261; 62. On 20 February 2009, the Royal North Shore Hospital Pain Clinic issued a progress report on the plaintiff's treatment at the Pain Clinic; Exhibit "D", Tab 19, pp 245 - 250, pp 262 - 267; 63. On 21 February 2009, Dr Kirkby issued the plaintiff with a workcover medical certificate covering the period 28 February 2008 (sic) to 1 March 2008 (sic for 2009): Exhibit "E", Tab 32, p 623; 64. On 4 March 2009, Dr Kirkby referred the plaintiff to the Royal North Shore Pain Clinic and ADAPT programme for further management and advice: Exhibit "D", Tab 19, p 165, p 238; 65. On 26 March 2009, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 29 December 2009: Exhibit "D", Tab 19, p 274; 66. On 26 March 2009, the Royal North Shore Hospital Pain Clinic issued a progress report on the plaintiff's participation in its ADAPT programme: Exhibit "D", Tab 20, pp 301 - 306. The aim was for the plaintiff to reduce his medications and to pursue psychiatric treatment for his "severe mood disturbance"; 67. On 22 April 2009, the plaintiff, Dr Kirkby, and Ms Jody Turner, the worker's compensation insurer's nominated rehabilitation consultant, had a case conference by telephone, aimed at placing the plaintiff in suitable alternative employment. The conference noted it was unlikely that the plaintiff would be placed in any such employment due to his history of distress and need for psychological assistance: Exhibit "2", pp 164 - 167; 68. On 1 May 2009, after the plaintiff moved to Albury, NSW, he signed an authority for his new general practitioner in that area to be provided with a copy of his medical records kept by Dr Kirkby: Exhibit "D", Tab 19, p 193; 69. On 16 May 2009, the plaintiff attended a Stage 2 follow-up assessment at the Royal North Shore Hospital Pain Clinic as part of the ADAPT programme: Exhibit "C", Tab 12, pp 123 - 128. It was noted (at p 124) that the plaintiff had made little progress and needed to apply intensive pain management strategies. It was also noted (at p 124) that he was experiencing extremely severe depression and anxiety, high levels of pain-related disability, low levels in confidence and ability to manage pain, very high and "at risk" levels of ongoing disability relating to fear avoidance, and still high levels of frequency of catastrophic thoughts. The report of that follow-up noted (at pp 126 - 127), that up to that point, vocational rehabilitation had not been successful, despite the plaintiff expressing the wish to return to work. It was also noted (at p 127), that he was obviously having difficulty in "applying to his management of his pain". At that time it was recommended (at pp 127 - 128) that the plaintiff continue to maintain and apply pain management strategies from the ADAPT programme, to continue with an exercise programme, to pace his activities, seek to minimise his distress, avoid recommencing medications and other passive treatments, and pursue psychiatric treatment for his severe mood disturbance; 70. On 19 May 2009, Dr Kirkby issued the plaintiff with a workcover medical certificate that was current to 30 June 2009: Exhibit "D", p 278; 71. On 21 May 2009, Dr Kirkby provided the plaintiff with a workcover medical certificate for the period 20 April 2009 to 20 May 2009: Exhibit "D", Tab 19, p 207; 72. On 22 May 2009, the plaintiff presented, in distress, at the Dubbo Base emergency department, with painful right ribs, shortness of breath and pain on inspiration, with detected decreased breath sounds to the left lower lung lobe. The limited extract of the tendered hospital notes is uninformative as to any treatment and advice given to the plaintiff on that occasion: Exhibit "2", p 176; 73. On 9 June 2009, Ms Cheryl Bester, a clinical psychologist in Albury, wrote to the plaintiff's new general practitioner, Dr Patrick Farrell in Albury, to advise she had seen the plaintiff in consultation in the previous week, when he presented in frustration and depression in response to chronic pain. She noticed that he was new to the area, and he had no social supports: Exhibit "2", p 177; 74. On 9 June 2009, the plaintiff was re-assessed by Dr Klug: Exhibit "C", Tab 1, pp 7 - 11. At this reassessment, Dr Klug had available to him the Pain Clinic and ADAPT materials. Dr Klug (at pp 8 - 10) reviewed the plaintiff's current complaints, and reprised his earlier mental state examination, noting (at p 10) that the plaintiff appeared depressed and anxious, had probable diminished concentration, appeared in pain, expressed suicidal thoughts, but had no then current intent. Dr Klug (at pp 10 - 11) stated that his earlier opinion remained unchanged, namely, that the plaintiff was suffering a chronic post-traumatic stress disorder, a chronic adjustment disorder with depressed mood, with a possible, at times, major depressive disorder due to his qualifying depressive symptoms; 75. On 9 June 2009, at the request of Allianz Australia, the CTP insurer, the plaintiff was examined by Dr Robert Haik, a consultant psychiatrist: Exhibit "6", pp 1 - 8. Dr Haik identified (at p 1) his formulation of his assessment of the plaintiff as being his "current complaints were plausibly linked to his need for reparation of a lifetime of disappointment and hardship despite there being no distinct or measurable condition that might explain his travail". Dr Haik further commented (at p 7) that the plaintiff "simply attends hospitals to complain of his pain". Dr Haik further opined (at p 7) that: "For a relatively healthy young man, either Mr Webb has a rather unusual medical condition that is absolutely impervious to any appropriate treatment or he is keen that medical assessors find him disabled by an obscure medical condition that is virtually impossible to detect objectively". Dr Haik sought to make a connection (at p 7) between the plaintiff's "quite arduous life" and "being disparaged and belittled at school" and the reason for the plaintiff having his claimed disabilities. Dr Haik was of the opinion (at pp 7 - 8), that the plaintiff did not have a pain disorder or a psychiatric disorder. He was of the further opinion the plaintiff's complaints did not have a subconscious basis, thereby implying a conscious process of exaggeration, a matter Dr Haik took up in his subsequent reports. That methodology by Dr Haik, and the reliability of his opinions critical of the plaintiff, will be evaluated in the context of my consideration of the conflicting medical opinions. It is not clear on the evidence as to which examination took place first on 9 June 2009, either with Dr Haik or Dr Klug. Either way, it must have been a psychologically trying day for the plaintiff; 76. On 10 June 2009, at the request of Allianz Australia, the CTP insurer, the plaintiff was examined by Dr Schutz, a consultant surgeon who prepared a report dated 15 June 2009: Exhibit "6", pp 9 - 19. Dr Schutz's report of that date was addressed to the CTP insurer, and it neither referred to or adopted the Expert Witness Code of Conduct. From the viewpoint of his expertise, Dr Schutz identified (at pp 9 and 11), that the plaintiff's right chest wall pain inhibits mobility and use of his right arm, and also inhibits respiratory function. On examination, Dr Schutz also identified (at p 13), a plainly visible distended jugular vein on the left side of the plaintiff's neck, a 17cm vertical scar on the right side of the chest and a 20cm horizontal scar in the same region, and some other oblique scars relating to the intercostal drain site, with hypersensitivity and tingling over the front of the chest scars, and a reduced right-sided lung function was also noted. He also noted (at pp 13 - 14), reduced shoulder movements due to pain in the chest wall, with reduced muscle bulk in the right upper and forearm, consistent with relative disuse, and a dry cough, associated with right chest wall symptoms. He considered (at pp 15 - 16), the chest problems resulted in significant and intense ongoing pain. He considered (at p 17), that there were no inconsistencies evident in the plaintiff's reported symptoms, complaints and restrictions as found on clinical examination. Dr Schutz considered (at p 18), the plaintiff had sufficient education and skills to be retained for possible light alternative employment but finding suitable work would require significant rehabilitation input given the likelihood of continuing right-sided chest wall pain; 77. On 15 June 2009, in a separate report, his second of that date, Dr Schutz addressed an additional question asked of him by the CTP insurer, namely to assess the plaintiff's whole person impairment, which he assessed as being a total of 17 per cent: Exhibit "6", pp 20 - 22; 78. On 16 June 2009, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 16 June 2009 to 16 August 2009: Exhibit "2", p 178; 79. On 20 August 2009, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 16 August 2009 to 16 November 2009: Exhibit "2", p 179; 80. On 26 October 2009, Dr Klug undertook an assessment of the plaintiff's whole person impairment and stated his view was that on psychiatric grounds, the plaintiff's whole person impairment was 17 per cent: Exhibit "C", Tab 1, pp 12 - 13; 81. On 3 November 2009, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 16 November 2009 to 16 February 2010: Exhibit "2", p 180; 82. On 4 November 2009, the plaintiff underwent some tests at a respiratory clinic at the referral of Dr Farrell. The test results indicated that whilst spirometry was within normal limits, there was decreased diffusion capacity for carbon monoxide, those being findings found in conditions such as pulmonary vascular disease, pulmonary connective tissue disease and early interstitial lung disease: Exhibit "2", p 187. The results were not discussed in terms of co-relation to the plaintiff's lung contusion injury which he sustained in the accident; 83. On 7 December 2009, Dr Kirkby provided the plaintiff with a further workcover medical certificate: Exhibit "D", Tab 19, p 244; 84. On 8 December 2009, after earlier failed attempts at contact, the plaintiff attended the Albury Community Health Centre to establish contact, and to arrange for him to see a psychiatrist. His name was then placed on a waiting list: Exhibit "2", pp 188 - 189; 85. On 10 December 2009, the plaintiff had contact with Ms Bester, psychologist: Exhibit "2", p 190; 86. Between 2 February 2010 and 26 March 2010, the plaintiff had contact with the Albury Community Centre psychologist: Exhibit "2", pp 191 - 192; 87. On 9 February 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 9 February 2010 to 7 May 2010: Exhibit "2", p 181; 88. On 23 February 2010, at the request of his solicitor, the plaintiff was assessed by Dr John Davis, a consultant in occupational medicine. After noting the life-threatening nature of his injuries, Dr Davis expressed the view that the plaintiff's major response to his injury was his psychological reaction, and the development of a chronic PTSD and chronic pain syndrome: Exhibit "C", Tab 5, pp 85 - 92, at p 89; 89. On 28 April 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 7 May 2010 to 5 June 2010: Exhibit "2", p 182; 90. On 17 May 2010, the plaintiff was being assisted by Ms Mandy Hobbs, a physiotherapist, for his intermittent chest pain and some focal dystonia in his right arm on loading with light weights: Exhibit "2", p 233; 91. On 1 June 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 5 June 2010 to 3 September 2010: Exhibit "2", p 183; 92. On 11 June 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John O'Neill, a consultant neurologist. Dr O'Neill's first report is dated 11 June 2010: Exhibit "6", pp 23 - 27. Dr O'Neill's examination focussed on the plaintiff's neurological complaints of sharp jabbing right lateral chest wall pain and a shaking or tremor of the right hand associated with certain activities. Dr O'Neill said (at p 26) that he was unable to explain the plaintiff's complaint of neck pain and stiffness on the basis of the accident-related venous thrombosis in the neck, and considered this was a psychosomatic matter. He went on to say (at p 27), that the plaintiff's delayed but persisting experience of chest pain could not be explained on a physical basis. He postulated that the Pain Clinic diagnosis of "neuropathic" was baseless, and he further postulated that the plaintiff's complaints in that regard were "non-anatomical" and "largely psychosomatic". He did not explain what he meant by "non-anatomical". On a commonsense analysis, in this context, that unexplained term used by Dr O'Neill is difficult to understand. The cited context was the plaintiff's complaints of nerve pain which actually pertained to the specific anatomical area he identified. It may be that Dr O'Neill intended to say the pain complained of by the plaintiff did not have an anatomical or physical basis, but he did not say that, in contradistinction to his assessment of the shake in the plaintiff's right arm, which Dr O'Neill described as having "no physical basis". At this point it is pertinent to note that Dr O'Neill's views about the plaintiff's complaint of chest wall pain vacillated somewhat in his further reports, as will become clear. Those circumstances, and others that will be stated, affect considerably, the reliability of some of his opinions in this case; 93. On 12 August 2010, Dr Todhunter wrote to Dr Farrell to express the view that his provisional diagnosis of the plaintiff's right chest wall pain was that of neuropathic pain: Exhibit "2", pp 235 - 236; 94. On 1 September 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 1 September 2010 to 1 December 2010: Exhibit "2", p 184; 95. On 1 September 2010, Dr Farrell made a note that the plaintiff was suicidal, and in a lot of pain, and was unable to cope with the on-line programme, which was possibly a reference to an on-line cognitive behavioural therapy programme: Exhibit "2", p 234; 96. On 8 September 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 6 September 2010 to 1 October 2010: Exhibit "2", p 238; 97. On 27 September 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 1 October 2010 to 1 November 2010: Exhibit "2", p 239; 98. On 30 September 2010, at the request of the plaintiff's solicitor, Dr Anup Desai, a respiratory physician, conducted a respiratory impairment assessment of the plaintiff on the papers, without an examination. Nothing turns on that assessment: Exhibit "2", pp 129 - 131; 99. On 5 October 2010, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Haik, who on that date prepared his second report: Exhibit "6", pp 28 - 35. In his second report, Dr Haik reiterated his opinion that there was no evidence the plaintiff was suffering from a psychiatric disorder. Speculatively, he also raised (at p 28), what he described as "a serious concern that [the plaintiff's] presentation may be deliberately driven by an aspiration for external incentives". Dr Haik had not put that proposition to the plaintiff for his comment: T80.31 - T80.37. After outlining his findings on examination, reviewing the plaintiff's history, his activities, his medications and his assessments since the last consultation, and after receiving some reports that were provided to him, Dr Haik referred to his earlier opinion and expressed the formulated view (at pp 30 - 31), that the plaintiff had no evidence for a diagnosis of clinical depression (or a diagnosis of a psychiatric disorder) and he reiterated his earlier opinion, which he said remained unchanged, and postulated (at p 35), that it "appears even more certain" that the plaintiff was "manipulating his situation of alleged compensable injury for secondary gain". A question arises as to whether Dr Haik, by his reasoning, was justified in stating those opinions, and a further question arises as to whether Dr Haik's cited report, meets the pre-requisite standard to be expected of a reliable expert opinion: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); 100. On 6 October 2010, the plaintiff was assessed by Dr Schutz, for a second time: Exhibit "6", pp 36 - 47. Dr Schutz's report which followed that assessment, acknowledged the Expert Witness Code of Conduct. In his report (at pp 37 - 38) he noted the updated history since his 2099 examination, which included neck and right chest discomfort, with new urinary and low back symptoms. He also recorded a comment that the plaintiff's "bowel function is normal". It is not clear whether this was Dr Schutz's opinion, or the plaintiff's reported opinion, as an item of history. Dr Schutz's findings on examination (at pp 38 - 40), noted no changes in the neck or right-sided pain in the chest wall, but he also noted the plaintiff clutched the right side of his chest when he coughed "with a pained expression". Dr Schutz noted the plaintiff's neck vein distension was consistent with obstructed deep veins in that region. After reviewing a series of 4 DVDs supplied to him for review and comment (at pp 41 - 47), Dr Schutz considered that the plaintiff's movements as seen on the DVDs, and the apparent absence of coughing episodes on those DVDs, suggested the plaintiff's movements as shown on the DVDs were substantially better than the movements shown on examination. The difficulty and the probative value in such observations in this context is that those views were not put to the plaintiff for his explanatory comments. Based on those views, (at p 45), Dr Schutz expressed the opinion that the plaintiff could work in a wide range of work activities short of heavy labouring work. Dr Schutz considered (at p 47), that the discrepancy between the plaintiff's coughing during clinical consultation, and apparent absence of evidence of coughing on the DVD evidence, indicated to him that "there was evidence of significant embellishment and exaggeration during the examination". An emergent difficulty in the reliability and fairness of that observation is that Dr Schutz did not put that specific matter to the plaintiff for his explanatory comment; 101. On 21 October 2010, Dr Michael Dally provided a letter to the defendant's solicitor summarising his contact with the plaintiff in 2007 - 2008, and describing the assessment and treatment given to the plaintiff at that time; Exhibit "2", pp 254 - 255; 102. On 27 October 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 1 November 2010 to 1 January 2011: Exhibit "2", p 240; 103. On 8 November 2010, the plaintiff consulted Dr Glen Mobilia, a general practitioner in Jindera, seeking treatment for what Dr Mobilia diagnosed as neuropathic pain in the right chest wall, exacerbated by coughing, sneezing, walking or the application of pressure to that area, along with complaints of chest tightness, wheeze and shortness of breath on exertion: Exhibit "C", Tab 6, pp 93 - 100, at p 96. Dr Mobilia continued to see the plaintiff for his multiple medical issues of concern. The last consultation the subject of a report was on 2 October 2012, and the primary focus of those consultations was, in the terms described by Dr Mobilia, the plaintiff's major depression, anxiety and post-traumatic stress disorder, as well as flashbacks to the subject accident, with disturbing dreams, and periods of deeper depression (at p 99). Dr Mobilia, who had been seeing the plaintiff regularly over time, aided by the results of investigations and referrals, summarised the plaintiff's multiple accident-related symptomatologies and complaints. His opinion (at p 99), was unchallenged. I considered it to be insightful and reliable. I will draw upon it in making findings as to the plaintiff's ongoing disabilities; 104. Between 8 November 2010 and 16 April 2014, the plaintiff received from Dr Mobilia numerous prescriptions for painkilling and psychotropic medications: Exhibit "D", Tab 21, pp 363 - 364; 105. On 12 November 2010, the plaintiff and his small child presented at the Albury Hospital emergency department for a psychiatric assessment in the context of the plaintiff having threatened self-harm. He was brought to the hospital by police. The precipitating circumstances were that he had been on the telephone to the insurer, and at that time he had threatened to kill himself whilst in the course of a telephone dispute with the insurer. The insurer, CGU, called the police. The incident was assessed as having been due to frustration on the plaintiff's part: Exhibit "2", pp 258 - 261; 106. On 19 November 2010, Ms Sheree Baker, a case manager from Albury Community Mental Health wrote to Dr Farrell to advise she had taken on the role of the plaintiff's case manager at that centre. She also informed him of the plaintiff's focus on his chronic pain, and that she thought that he was at risk of suicide in view of his impulsive behaviour, which could elevate the risk to change from low in the presence of accumulating stressors: Exhibit "2", p 262. Her case management notes span the period 25 November 2010 to 20 December 2010, 17 January 2011 to 4 February 2011, 9 February 2011 to 28 February 2011, and then 30 May 2011 to 28 June 2011: Exhibit "2", pp 263 - 264; pp 266 - 267; p 270; pp 273 - 275; 107. On 20 December 2010, Dr Farrell provided the plaintiff with a workcover medical certificate covering the period 9 December 2010 to 9 January 2011: Exhibit "2", p 241; 108. On 12 January 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 9 January 2011 to 9 February 2011: Exhibit "E", Tab 32, p 636; 109. On 28 January 2011, at the referral of Dr Mobilia, the plaintiff underwent MRI scans of his cervical and lumbosacral spines. The cervical MRI was in essence reported as showing a tiny central disc protrusion at the level C5/6, and a minor laxity of the central posterior annulus at C6/7, with early right uncovertebral joint osteophytosis, which causes minor narrowing of the right C7 exit foramen. It appears that Dr O'Neill was not asked to review his negative neck findings as summarised at sub-paragraph (92) of paragraph [98] above, in light of those imaging results. The lumbosacral MRI was in essence reported as showing no abnormality: Exhibit "D", Tab 22, pp 548 - 549; 110. On 7 February 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 7 February 2011 to 7 March 2011: Exhibit "E", Tab 32, p 637; 111. On 18 February 2011, the plaintiff's treating general practitioner, Dr Mobilia referred the plaintiff to Dr Terry Hillier, an orthopaedic surgeon for a consideration of issues to do with the right side of his chest, in particular, the right pectoral muscle and the sternum rib articulations as it was felt the plaintiff had developed a chronic pain syndrome / neuropathic pain or costochondritis in that area: Exhibit "C", Tab 13, p 129; 112. On 8 March 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 7 March 2011 to 7 April 2011: Exhibit "E", Tab 32, p 638; 113. On 7 April 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 7 April 2011 to 7 May 2011: Exhibit "E", Tab 32, p 639; 114. On 11 April 2011, Dr Hillier wrote to Dr Mobilia expressing the clinical opinion that in light of MRI scanning which excluded intraspinal pathology, he thought the plaintiff's complaints of chest symptoms and a feeling of rigidity in the chest were due to potential residual adhesions within the thoracic cavity: Exhibit "C", Tab 14, p 130; 115. On 15 April 2011, the insurer appointed rehabilitation provider finalised the plaintiff's programme because the plaintiff was considered to be medically unable to participate in the programme for an extended period, even though he demonstrated application. It is of some significance that when that rehabilitation provider noted the plaintiff's level of application, there was no suggestion of malingering, embellishment or exaggeration on the plaintiff's part as to his problems. He was unsuccessful in obtaining suitable employment in the 11 months he was in the programme: Exhibit "2", pp 271 - 272; 116. On 3 May 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 3 May 2011 to 3 June 2011: Exhibit "E", Tab 32, p 640; 117. On 2 June 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 2 June 2011 to 2 July 2011: Exhibit "E", Tab 32, p 641; 118. On 30 June 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 30 June 2011 to 30 July 2011: Exhibit "E", Tab 32, p 642; 119. On 13 July 2011, at the request of Dr Hillier, the plaintiff underwent a thoracic MRI for chronic intercostal pain and a queried thoracic disc lesion. No focal lesion was identified: Exhibit "2", p 279; 120. On 19 July 2011, at the referral of Dr Mobilia, the plaintiff underwent an MRI scan of the thoracic and lumbar spine, which revealed no sign of disc pathology or compromise of the lumbar spine. Dr Hillier interpreted this to suggest that the plaintiff's external scarring across the rib cage accounted for his "neuropathic symptoms", which was an obvious reference for the plaintiff's complaints of chest pain: Exhibit "D", Tab 21, p 414; 121. On 26 July 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 28 July 2011 to 27 August 2011: Exhibit "E", Tab 32, p 643; 122. On 11 August 2011, Dr Todhunter reassessed the plaintiff at the request of Dr Mobilia for ongoing pain management. Dr Todhunter suggested peripheral nerve stimulation which might assist the plaintiff's chest wall pain, but that it would not assist the spread of his pain to the thoracic spine and the neck with movements to the left side: Exhibit "C", Tab 15, p 131; Exhibit "D", Tab 21, p 415; 123. On 22 August 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 28 August 2011 to 27 September 2011: Exhibit "E", Tab 32, p 644; 124. On 2 September 2011, the handwritten notes of Dr Neil Geddes, a general surgeon, who saw the plaintiff at the referral of Dr Mobilia, record a history from the plaintiff of intermittent incontinence since the accident: Exhibit "2", p 281; 125. On 7 September 2011, Dr Geddes took a history of intermittent bowel problems and faecal incontinence since he experienced severe constipation as an in-patient at Dubbo Hospital after the subject accident: Exhibit "D", Tab 21, p 416; 126. On 16 September 2011, the plaintiff was colonoscopied by Dr Geddes, in view of his complaints of loss of anal continence: Dr Geddes assessed the plaintiff's anal incontinence as a major source of disability to him. Whilst Dr Geddes noted the temporal correlation of that problem "almost straight after the accident" he could not find any abnormality of the plaintiff's large bowel: Exhibit "C", Tab 16, p 132. At that time, no-one had made an apparent connection between the plaintiff's faecal incontinence and his experience of panic attacks; 127. On 3 October 2011, Dr Geddes wrote to the worker's compensation insurer confirming his earlier findings at colonoscopy, noting that the plaintiff's loss of continence was a major disability for him, which required him to wear pads in his underwear and which causes him to soil his underwear: Exhibit "D", Tab 21, p 418; 128. On 19 October 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 19 October 2011 to 19 November 2011: Exhibit "E", Tab 32, p 645; 129. On 28 October 2011, Dr Geddes' handwritten notes record a history: "still loss of anal continence" about every 3 days: Exhibit "2", p 282; 130. On 15 November 2011, Dr Mobilia wrote to the worker's compensation insurer confirming he was treating the plaintiff for his pain, depression and anxiety, for which he was prescribing Endone and Pristiq: Exhibit "D", Tab 21, pp 419 - 420; 131. On 17 November 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 17 November 2011 to 17 December 2011: Exhibit "E", Tab 32, p 646; 132. On 22 November 2011, the plaintiff consulted Dr Hillier about his experience of ongoing pain. In his resulting letter to Dr Mobilia, which was copied to the worker's compensation insurer, Dr Hillier noted that the previous suggestion for a spinal cord stimulator was not approved by the worker's compensation insurer: Exhibit "D", Tab 21, p 424. The insurer had declined to pay for that suggested stimulator in January 2011: Exhibit "2", p111, par 73; 133. On 14 December 2011, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 14 December 2011 to 14 January 2012: Exhibit "E", Tab 32, p 647; 134. On 3 January 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 10 January 2012 to 10 February 2012: Exhibit "E", Tab 32, p 648; 135. On 16 January 2012, Dr Hillier wrote to Dr Mobilia, with a copy to the worker's compensation insurer, noting "nothing has occurred since I last wrote", and also noting that the plaintiff was not able to afford medications or physiotherapy, and stated it was unlikely that the plaintiff's pain would diminish until he obtained those treatments: Exhibit "D", Tab 21, p 425; 136. On 2 February 2012, Ms Yeates, a psychologist, recorded a history from the plaintiff of him having been "incontinent for years": Exhibit "2", p 297; 137. On 2 February 2012, Ms Yeates formulated a psychological counselling management plan for the plaintiff's adjustment disorder and depression with the aim of reducing his anger outbursts and to stabilise his mood: Exhibit "2", pp 298 - 300; 138. On 2 February 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 2 February 2012 to 2 April 2012: Exhibit "E", Tab 32, p 649; 139. On 6 February 2012, the plaintiff was referred to Mr Les Langmead, a consulting psychologist, who assessed the plaintiff on 21 March 2012. The referral was to assist the plaintiff with chronic pain, which was noted to be acute at times, triggered by minimal movements. He provided cognitive behavioural therapy to the plaintiff: Exhibit "D", Tab 21, pp 427 - 429. Mr Langmead noted the plaintiff's depression to be a major factor, with mood swings, and difficulty in dealing with, and accepting his situation, which affected his self-esteem and confidence, and which was associated with feelings of anger. Mr Langmead also noted that the nerve stimulator for the plaintiff's pain had not yet been approved, and considered that if approved, it "would make a difference to [the plaintiff's] quality of life": Exhibit "D", Tab 21, p 429; 140. On 26 February 2012, the plaintiff underwent a further diagnostic CT scan of the chest which revealed no apparent abnormality: Exhibit "D", Tab 21, pp 361 - 362; 141. On 21 March 2012, Ms Yeates prepared a further psychological counselling management plan to assist the plaintiff with the psychological consequences of his pain and disability resulting from the motor vehicle accident, including the aim of suicide prevention and pain management: Exhibit "2", pp 314 - 316; 142. On 26 March 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 26 March 2012 to 26 April 2012: Exhibit "E", Tab 32, p 650; 143. On 8 April 2012, at the suggestion of Dr Geddes, the plaintiff was seen by Dr Adrian Polglase, an emeritus professor and colorectal surgeon. Dr Polglase advised the plaintiff to give "strong consideration to having a colostomy", and was unable to offer any other suggestions for management of the plaintiff's faecal incontinence: Exhibit "D", Tab 21, p 446. At that time, a link between the plaintiff's faecal incontinence and the plaintiff's experience of panic attacks had not yet been made; 144. On 13 April 2012, Ms Simone Bowler, a continence physiotherapist, assessed the plaintiff and reported her suggested treatment programme to Dr Mobilia. At that time, she noted that on rectal examination, she found the plaintiff's muscles were extremely weak: Exhibit "D", Tab 21, p 426; 145. On 19 April 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 19 April 2012 to 21 May 2012: Exhibit "E", Tab 32, p 651; 146. On 22 May 2012, Dr Mobilia's locum, Dr Johanson, issued the plaintiff with a workcover medical certificate covering the period 22 May 2012 to 22 June 2012: Exhibit "E", Tab 32, p 652; 147. On 4 June 2012, the plaintiff was reassessed by Dr Klug, at which time he revised his whole person impairment assessment of the plaintiff to 26 per cent: Exhibit "C", Tab 1, pp 14 - 19. After following the same structural methodology as in his earlier reports, he set out his findings on the plaintiff's mental state, noting (at p 17), his then current medications and he then reiterated (at p 18), his earlier diagnosis of post-traumatic stress disorder, and a chronic adjustment disorder with depressed mood; 148. On 18 June 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 22 June 2012 to 22 July 2012: Exhibit "E", Tab 32, p 653; 149. On 26 June 2012, at the referral of Dr Mobilia, the plaintiff underwent a further CT scan of his chest, which was interpreted as being normal: Exhibit "D", Tab 22, pp 546 - 547; 150. On 6 July 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 22 July 2012 to 22 August 2012: Exhibit "E", Tab 32, p 654; 151. On 13 August 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 13 August 2012 to 13 September 2012: Exhibit "E", Tab 32, p 655; 152. On 17 August 2012, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Schutz for a third time, which resulted in Dr Schutz preparing a report dated 27 August 2012: Exhibit "6", pp 51 - 65. On this occasion (at p 51), Dr Schutz acknowledged receipt of a letter of instruction from the defendant's solicitor which listed multiple enclosures in a 6cm file: T61.2 - T61.8. When that matter was questioned and followed up by the tender of Exhibit "5", which was a copy of the letter of instruction provided to Dr Schutz, the precise detail of that 6cm thick file of materials remained obscure and opaque to analysis, other than a specific reference to surveillance DVDs relating to 19 January 2012 and 24 July 2012. After updating matters of history and examination, Dr Schutz noted (at pp 52 - 53), the plaintiff's newly reported symptoms of constipation, faecal incontinence, and urinary symptoms, and worsening right chest wall pain, but with regard to the irritating recurring cough, "he has been learning to deal with it" and does not need to hold his chest as much as before. Dr Schutz's statement of newly reported symptoms of constipation and faecal incontinence must be read in a qualified light in view of the history of incontinence referred to at sub-paragraph (136) of paragraph [98] above, and Dr Mobilia's summary of events at Dubbo Hospital in the plaintiff's early days of treatment for an incomplete bowel obstruction and an inability to pass stools, as cited in the quoted text at paragraph [90] above. Dr Schutz's diagnosis was stated (at p 60), to be basically unchanged but (at p 63) he expressed the view that the plaintiff "could work in a suitable job". He also stated (at p 64) that "Based on all the current information and observations his current level of functioning appears good despite a reported increase in his right chest wall symptoms." That said, (at p 64), Dr Schutz acknowledged that it was "not possible to totally exclude the possibility of symptoms causing some restrictions. However based on all available information, the evidence is that any possible symptoms and related restriction is far less than he has claimed". That opinion raises questions as to whether it is reliable and whether Dr Schutz's opinions are in compliance with the Expert Witness Code. Dr Schutz went on to conclude (at p 65), in answer to a loaded or leading question, that there was evidence of inconsistency which he considered to be an exaggeration or embellishment, which was "likely to be voluntary". The inconsistency to which he referred was stated to be the "claim of increasing right chest wall symptoms, when the evidence was to the contrary". The reliability of that opinion and the cited evidence to the contrary, must be seen to be somewhat diminished given that particular matter was not put to the plaintiff to give him the fair opportunity for comment or explanation, and the evidence relied upon by Dr Schutz was questionable and open to interpretations not fully pursued; 153. On 17 August 2012, when the plaintiff was assessed by Dr Schutz for a third time, Dr Schutz had "3 DVDs provided" to him for review prior to him re-assessing the plaintiff. Dr Schutz wrote a separate report on the DVD material: Exhibit "6", pp 48 - 50. Dr Schutz said (at p 45), that he had viewed those 3 DVDs prior to his examination of the plaintiff. As a result of such viewing of footage taken on dates which he did not specify in his report, following his examination, he said (at pp 49 - 50), that comparing what he saw in the DVDs with his findings on examining and questioning the plaintiff, that "there was a gross inconsistency", which he then expanded to the plural expression of "gross inconsistencies", which, he said, made it impossible [for him] to determine whether the plaintiff had any residual symptoms and whether there was any basis for restriction in his work activities in the future. It appears that Dr Schutz did not take the logical next step of asking the plaintiff to comment on what Dr Schutz described as "gross inconsistencies" in order that these matters could be explained if not reconciled. In my view, this left his analysis and commentary incomplete. That is a matter that must be taken into account in assessing the reliability of the opinions of Dr Schutz in this case, especially where the alleged "gross inconsistencies" were not put to the plaintiff in cross-examination in order that he be afforded the fair opportunity of responding to such assertions by Dr Schutz; 154. On 6 September 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 4 September 2012 to 4 October 2012: Exhibit "E", Tab 32, p 656; 155. On 14 September 2012, Dr Geddes wrote to Dr Mobilia, noting the plaintiff's history of loss of anal continence after recovery from the subject accident. Dr Geddes noted he had referred the plaintiff to a physiotherapist for peri-anal exercises, and he supported the physiotherapist's suggestion for a muscle stimulator to assist in the treatment: Exhibit "D", Tab 21, p 434; 156. On 26 September 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 4 October 2012 to 4 December 2012: Exhibit "E", Tab 32, p 657; 157. On 22 November 2012, at the referral of Dr Mobilia, the plaintiff was assessed by Dr Andreas Baisch, a consultant physician in internal medicine. After testing, Dr Baisch was concerned the plaintiff might have developed a restrictive ventilatory defect and postulated a possible post-traumatic diaphragmatic paresis and suggested an imaging study. He also suggested that a chest physiotherapist be asked to assist him with breathing exercises for cough control in order to control his cough at times of exertion: Exhibit "2", pp 323 - 326; 158. On 26 November 2012, at the referral of Dr Mobilia, the plaintiff underwent a chest x-ray to investigate whether he had a paresis of the right hemidiaphragm, which reported there was no evidence for that diagnosis: Exhibit "D", Tab 22, p 547; 159. On 29 November 2012, Dr Mobilia sent a very detailed medical report about the plaintiff to the worker's compensation insurer, in response to a request made of him to do so. The essential historical detail of that report has already been cited at paragraph [90] above: Exhibit "2", pp 327 - 334; 160. On 29 November 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 29 November 2012 to 29 December 2012: Exhibit "E", Tab 32, p 658; 161. On 17 December 2012, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 29 December 2012 to 29 February 2013: Exhibit "E", Tab 32, pp 559 - 561; 162. On 19 December 2012, the worker's compensation insurer developed an injury management and return to work plan, which placed some limitation conditions on the provision of ongoing physiotherapy and psychological treatment: Exhibit "D", Tab 21, pp 438 - 441; 163. On 23 January 2013, the plaintiff underwent an ultrasound examination of his neck for neck pain which led to a suggestion that there were atypical morphological characteristics: Exhibit "D", Tab 21, p 362; 164. On 20 February 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 20 February 2013 to 18 March 2013: Exhibit "E", Tab 32, pp 662 - 664; 165. On 25 February 2013, the plaintiff presented to the Albury Wodonga Hospital emergency department with blade lacerations to the right forearm, abdomen and chest, with an associated history of not coping with his chronic pain anymore, and talking of running off the road in his car to hit a tree, and also thinking about hanging himself. During that admission, a bowel chart was noted as showing "frequency ++" against a history of no bowel control. The Albury Hospital progress notes for follow-up consultations following that admission also record the plaintiff's history (given on 9 April 2013) that he was "able to jog on and off" in the context of a discussion about his physical activities: Exhibit "2", pp 335 - 336; 166. On 27 February 2013, Mr Langmead, the counselling psychologist, updated his earlier treatment plan for the plaintiff. In doing so, he noted the plaintiff's strong suicidal and self-harm thoughts and urges, his anger and frustration, and he also noted: "Unfortunately, the stresses on [the plaintiff] are so severe that it is difficult to apply cognitive - behavioural methods on his own." He further noted the multiple sources of distress for the plaintiff as pain, incontinence, trauma, and having to relate to the compensation system, making it difficult for him to make progress with his trauma issues: Exhibit "D", Tab 21, pp 442 - 444; 167. On 4 March 2013, Mr Langmead wrote to Dr Mobilia about an episode of self-harm that had been carried out by the plaintiff, which had resulted in the plaintiff being hospitalised. Mr Langmead suggested the plaintiff be seen by a psychiatrist: Exhibit "D", Tab 21, p 445; 168. On 7 March 2013, Dr Mobilia referred the plaintiff to Professor Graeme Burrows for assessment and treatment following a recent crisis which resulted in a self-inflicted laceration in the context of an inability to control his behaviour. Dr Mobilia outlined the history of the plaintiff's proneness to periods of psychological decompensation, especially when subjected to stressors. He sought Professor Burrows' expert assistance in dealing with the plaintiff's adjustment and PTSD issues: Exhibit "D", Tab 21, p 462; 169. On 8 March 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 18 April 2013 to 15 May 2013: Exhibit "D", Tab 21, pp 410 - 413; 170. On 20 March 2013, at the request of the worker's compensation insurer, CGU, the plaintiff was assessed by Dr Graham George, a consultant psychiatrist. Dr George concluded that the plaintiff had chronic PTSD, chronic major depression with anxious mood and a chronic pain disorder relating to his right chest wall, which along with the complaint of faecal incontinence and a decreased level of functioning, indicated that there was a guarded prognosis for these problems: Exhibit "C", Tab 2, pp 48 - 56. The defendant had initially required Dr George to attend for cross-examination on the content of his report with regard to those matters, but later abandoned that requirement; 171. On 9 April 2013, the plaintiff attended Albury Hospital for follow-up of his 25 February 2013 admission: Exhibit "2", p 336; 172. On 18 April 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 18 April 2013 to 15 May 2012 (sic): Exhibit "E", Tab 32, pp 665 - 669; 173. On 10 May 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 10 May 2013 to 8 June 2013: Exhibit "D", Tab 21, pp 406 - 408; 174. On 10 May 2013, Dr Mobilia wrote to Professor Burrows about the plaintiff's treatment: Exhibit "D", Tab 21, p 409; 175. On 12 May 2013, the plaintiff was involuntarily admitted to the adult psychiatric unit at Wodonga, from where he was discharged on 27 May 2013. The plaintiff was taken to that unit by Police after being found with a noose around his neck and in the context of an ongoing history of suicidal ideation and attempts at suicide. The discharge plan was for the plaintiff to engage with Professor Burrows for psychiatric treatment: Exhibit "D", Tab 21, pp 447 - 450, pp 452 - 453; 176. On 30 May 2013, Dr Geddes wrote to Dr Mobilia, noting that he had been seeing the plaintiff intermittently over the past year because of his faecal incontinence. He stated that problem was "in some way related to a prolonged paralytic ileus that he suffered after a motor car accident four years ago". Dr Geddes noted the treatment consensus was for the plaintiff to be offered a sigmoid colostomy to control the incontinence: Exhibit "D", Tab 21, p 451; 177. On 31 May 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 31 May 2013 to 30 July 2013: Exhibit "D", Tab 21, pp 403 - 405; 178. On 12 July 2013, the plaintiff participated by telephone in a medical case management review at Albury Hospital: Exhibit "2", p 336; 179. On 24 July 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 24 July 2013 to 27 August 2013: Exhibit "D", Tab 21, pp 400 - 402; 180. On 21 August 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 21 August 2013 to 19 September 2013: Exhibit "D", Tab 21, pp 396 - 398; 181. On 21 August 2013, Dr Mobilia again referred the plaintiff to Dr Geddes for a further assessment of the plaintiff's problem of faecal incontinence: Exhibit "D", Tab 21, p 399; 182. On 11 September 2013, Dr Mobilia corresponded with Professor Burrows about the plaintiff's psychological problems: Exhibit "D", Tab 21, p 395; 183. On 19 September 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 19 September 2013 to 16 October 2013: Exhibit "D", Tab 21, pp 392 - 394; 184. On 11 October 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 11 October 2013 to 8 November 2013: Exhibit "D", Tab 21, pp 389 - 391; 185. On 14 October 2013, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr O'Neill for a neurological assessment: Exhibit "6", pp 66 - 70. Dr O'Neill (at p 68) noted the plaintiff continued to complain of sharp jabbing pain along the line of his scar involving the right anterior chest wall, which was noted to be sensitive to touch. The plaintiff's prior complaints of an emergent shake in the right hand on exertion, and of neck discomfort, were (at p 68) reiterated. Following this second examination of the plaintiff, and in contradiction of his earlier opinion, Dr O'Neill accepted (at p 69), that the plaintiff's chest laceration was associated with neuropathic pain "arising from damage at the time of the accident to one or more right sided intercostal nerves". That statement was plainly in contradiction to his earlier opinion cited at sub-paragraph (92) of paragraph [98]. Dr O'Neill then undertook an admittedly artificial analysis of the plaintiff's chest wall pain for the purposes of assessing permanent impairment, assessing as analogous, a cutaneous nerve impairment because, as he explained, the AMA4 Guidelines did not address the phenomenon of intercostal neuropathies. He undertook that judgment or analogy by saying he did so "rightly or wrongly". As will become apparent later in this chronology, Dr O'Neill subsequently changed that view after he was contacted by the defendant's solicitor who, in unknown terms, had queried his expressed opinion; 186. On 15 October 2013, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Haik, who on the same date prepared his third report: Exhibit "6", pp 71 - 76. Dr Haik stated (at p 71) that "there continues to be no objective evidence that Mr Webb suffers from a psychiatric disorder. There remains a serious concern that his presentation is deliberately driven by an aspiration for external incentives". Dr Haik referred (at p 73), to the opinion of Dr Klug to the effect that the plaintiff had a chronic post-traumatic stress disorder and an adjustment disorder with depressed mood, but in stating his own opinion that the plaintiff did not exhibit a psychiatric disorder, Dr Haik made no attempt to come to grips with, or differentially engage with, or to rationally distinguish, Dr Klug's view to the contrary of his own opinion; 187. At paragraph 4.5 of his report of 15 October 2013, (at p 75), Dr Haik made the following remarks that were critical of the plaintiff's case, but which he had not beforehand put to the plaintiff for comment: "As outlined in the 2009 Synopsis (para 4.1 above) and reinforced in the 2010 Synopsis (para 4.2), Mr Webb does not exhibit a psychiatric disorder. There is ample evidence that he will claim whatever is required to obtain reparation for his difficult pre-accident life, initially recorded during his schooling. His employment history suggests a failure to find a satisfying vocation and nothing has changed. He and his partner have found a path where she has become the primary breadwinner while Mr Webb accommodates almost all other needs except cooking. To pursue this end he must justify his avoidance of paid employment and he does so with obscure complaints that cannot be explained from a medical perspective - such as loss of a sense to begin and end defaecation (sic), a quite bizarre symptom. In the same category is the allegedly relentless coughing, the seeking of a rope for self harm reported to Dr Klug, and many other bizarre manifestations of conscious mischief and feigned disablement. Following our third meeting, I could not be persuaded that Mr Webb has a psychiatric disorder. It is abundantly clear that he has a repertoire of complaints that might provide him with financial reparation so as to correct the disadvantage he has perceived in his life to date. He now has a home-husband role due to his partner's facility in the workplace and their income is considerable. His need to work for an income is minimal and this might explain the failure to pursue the advice of various specialists in regards (sic) to exercise and sedentary employment (paras 3.3, 3.4)." [Exhibit "6", p 75] The reliability of those views and criticisms expressed by Dr Haik, and the question of whether Dr Haik's cited views meet the pre-requisite standard to be expected for reliable expert opinions, is a matter that must be assessed and resolved; 1. On 8 November 2013, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 8 November 2013 to 8 January 2014: Exhibit "D", Tab 21, pp 385 - 387; 2. On 8 November 2013, Dr Mobilia referred the plaintiff to Professor Burrows for psychiatric treatment: Exhibit "D", Tab 21, p 388; 3. On 2 January 2014, Dr Mobilia provided the plaintiff with a workcover medical certificate covering the period 9 January 2014 to 6 February 2014: Exhibit "D", Tab 21, pp 380 - 382; Exhibit "2", pp 356 - 359; 4. On 2 January 2014, Dr Mobilia corresponded with the worker's compensation insurer over a request for that insurer to approve for the plaintiff to be assessed in Melbourne by Professor Burrows as an in-patient: Exhibit "D", Tab 21, p 383; 5. On 2 January 2014, Dr Mobilia corresponded with Dr Todhunter about the plaintiff's medication for mood swings: Exhibit "D", Tab 21, p 384; 6. On 28 January 2014, the plaintiff was reviewed by Dr Geddes in the context of continuing problems with incontinence. Having considered the suggested treatment option of colostomy, on balance, Dr Geddes ultimately considered that it should not be offered. He recorded a history of variable periods of bowel incontinence, where, some days he was not incontinent, but on other days he experienced multiple bowel actions with soiling: Exhibit "D", Tab 21, p 463; 7. On 30 January 2014, Ms Maureen Blane-Brown, the plaintiff's treating clinical psychologist, wrote to Dr Mobilia, reporting that the plaintiff had consulted her for psychological problems, which she described as comprising post-traumatic stress disorder, with secondary anxiety and depression, ongoing anger and mood issues, and associated symptoms of irritability, confusion, cognitive difficulties, and anger outbursts: Exhibit "J"; Exhibit "D", Tab 21, p 464; 8. On 30 January 2014, as a close examination of the evidence reveals, Dr O'Neill provided the solicitor for the defendant with a further report. That report has not been tendered in evidence in these proceedings. A reference to that report was made by Dr O'Neill in his report dated 23 January 2017: Exhibit "6", p 103. Consequently, it is apparent that the defendant has not tendered a complete set of Dr O'Neill's opinions. This is a matter of some considerable significance as to how Dr O'Neill's other reports should be viewed in this case; 9. On 3 February 2014, Dr Mobilia provided the plaintiff with a workcover medical certificate covering the period 3 February 2014 to 1 March 2014: Exhibit "2", pp 360 - 362; 10. On 3 February 2014, Dr Mobilia wrote to Ms Blane-Brown seeking her assistance for the treatment of the plaintiff's post-traumatic stress disorder and related psychological problems: Exhibit "D", Tab 21, p 376; 11. On 3 February 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate for the period 3 February 2014 to 1 March 2014: Exhibit "D", Tab 21, pp 377 - 379; 12. On 4 February 2014, Ms Blane-Brown wrote to Dr Mobilia with her concerns about the plaintiff's "hyper thinking patterns" and related adjustment disorder with anxiety and depression. She informed Dr Mobilia that she was of the view that the plaintiff was at risk of self-harm, and was a risk to others. She referred to his panic symptoms and PTSD, and requested an urgent psychiatric evaluation in addition to a recent mental health crisis team assessment: Exhibit "D", Tab 21, p 465; 13. On 17 February 2014, Dr Mobilia referred the plaintiff to Dr Andrew Baisch for management of the plaintiff's chest wall pain and cough: Exhibit "D", Tab 21, pp 372 - 373; 14. On 17 February 2014, Dr Mobilia wrote to the worker's compensation insurer to express his concerns over the risks to the plaintiff's wellbeing which necessitated hospitalisation for psychiatric treatment: Exhibit "D", Tab 21, p 374; 15. On 21 February 2014, Dr Mobilia again wrote to the worker's compensation insurer seeking approval for the plaintiff to have psychiatric treatment with Professor Burrows: Exhibit "D", Tab 21, p 375; 16. On 27 February 2014, Dr Mobilia provided the plaintiff with a workcover medical certificate covering the period 27 February 2014 to 24 March 2014: Exhibit "D", Tab 21, pp 369 - 371; Exhibit "2", pp 364 - 366; 17. On 11 March 2014, the plaintiff was reassessed by Dr Klug: Exhibit "C", Tab 1, pp 20 - 26. After reviewing his own earlier reports, and following a similar methodological approach, Dr Klug identified (at pp 23 - 24) a relevant increase in the plaintiff's psychological symptoms, noting (at pp 24 - 25) persistent and severe psychiatric symptoms including depressed mood, intermittent suicidal thoughts and intentions, a plethora of symptoms, the development of a problematic gambling disorder, a continued chronic post-traumatic stress disorder, a major depressive disorder, with panic attacks, which he significantly identified as the cause of the plaintiff's faecal incontinence. He also noted it was likely that the plaintiff was more dysfunctional than when previously seen. Dr Klug also noted his view that the plaintiff had reached his maximal state of medical improvement; 18. On 17 March 2014, Ms Blane-Brown wrote to Dr Mobilia about the plaintiff's presentation to her on that day, with feelings of hopelessness and helplessness associated with his chronic pain, frustration, and ongoing adjustment issues arising from the motor vehicle accident. She requested that an urgent and immediate psychiatric evaluation of the plaintiff take place, given the plaintiff's history of suicidal ideation: Exhibit "D", Tab 21, p 470; 19. On 21 March 2014, Dr Mobilia issued the plaintiff with a workcover certificate of incapacity covering the period 21 March 2014 to 18 April 2014: Exhibit "D", Tab 21, pp 366 - 368; 20. On 5 April 2014, Dr Geddes saw the plaintiff again about the unchanged problem of his faecal incontinence. He suggested deferring any further consideration of a possible diverting colostomy procedure, and he noted there were problems in getting the plaintiff to see a psychologist in Melbourne: Exhibit "D", Tab 21, p 471; 21. On 16 April 2014, Dr Mobilia provided the plaintiff with a workcover medical certificate covering the period 16 April 2014 to 13 May 2014: Exhibit "E", Tab 32, pp 706 - 708; Exhibit "2", pp 367 - 369; 22. On 9 May 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 9 May 2014 to 6 June 2014: Exhibit "E", Tab 32, pp 709 - 711; 23. On 26 May 2014, at the request of the solicitor for the defendant, the plaintiff was examined by Dr O'Neill for a third time. It appears that Dr O'Neill was asked to carry out this examination because the solicitor for the defendant had taken steps to draw his attention to his previous two reports, which contained an apparent internal contradiction concerning the possibility that the plaintiff may have neuropathic pain arising from the soft tissue injuries to his right lateral chest wall: Exhibit "6", pp 77 - 79. Dr O'Neill's explanation for that contradiction was that (at p 77) he stated: "As I explained over the phone, the reason my reports were contradictory was that at the second consultation (14 October 2013) I did not realise I had previously seen Mr Webb and on the latter occasion I accepted the view of his treating pain specialist that his right chest wall injuries had caused neuropathic pain." [Exhibit "3", p 77] In his explanatory comments (at pp 78 - 79), Dr O'Neill revisited his first assessment of 11 June 2010 and he then confirmed his original conclusion that the plaintiff had no evidence of right intercostal neuropathy which could give rise to neuropathic pain. He referred to the findings on examination on 26 May 2014 as "subjective and non-anatomical". He then referred to the plaintiff having psychosomatic symptoms and concluded (at p 79), that he could find no impairment of a neurological nature arising from the plaintiff's accident on 15 May 2007. That statement must be read in light of his qualification that although he did not support a diagnosis of intercostal neuropathy, he could not exclude the possibility of there being some pain from the soft tissue injuries to the right lateral chest wall. The reliability of Dr O'Neill's vacillating opinions stands to be assessed in light of other evidence to the contrary of his various original and revised views; 1. On 6 June 2014, at the referral of Dr Baisch, the plaintiff underwent a CT scan of the chest to review a previously normal scan taken in 2012. The test was ordered to investigate for a progressive ventilatory defect. The findings were that the plaintiff's lungs were underinspired, with bilateral dependent densities in the lower lobes, but non-specific, suggesting possible dependent atelectasis. No evidence was found of interstitial lung disease: Exhibit "2", p 372; 2. On 30 June 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 30 June 2014 to 27 July 2014: Exhibit "E", Tab 32, pp 712 - 715; 3. On 21 July 2014, Dr Klug provided a short report in which he revised his whole person impairment of assessment of the plaintiff to 19 per cent: Exhibit "C", Tab 1, pp 27 - 28; 4. On 24 July 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 24 July 2014 to 21 August 2014: Exhibit "E", Tab 32, pp 716 - 718; 5. On 3 September 2014, Dr Klug provided the solicitor for the plaintiff with a letter of explanation which set out the basis for his earlier expressed whole person impairment assessment of the plaintiff: Exhibit "C", Tab 1, pp 29 - 32; 6. On 8 September 2014, at the joint request of the parties, the plaintiff and his partner were interviewed and assessed by Dr Pauline Langeluddecke, a clinical psychologist: Exhibit "6", pp 80 - 102. She noted (at p 81, par 1.3), that the plaintiff presented to her as being emotionally labile, that he was mild to moderately anxious and depressed; that he was apparently finding cognitive testing very effortful, and that he was easily overwhelmed and frustrated in those events. She noted he had experienced some academic difficulties at school and she was unclear as to the nature of those difficulties. It is not clear as to the nature or extent of the briefing documents that she acknowledged (at p 84, par 2.3.1), had been provided to her. Dr Langeluddecke summarised her opinions (at paragraphs 1.9 - 1.14 on p 83), stating it was unlikely the plaintiff sustained a traumatic brain injury which was the main reason for her examination; she felt he had developed a major depressive disorder in partial remission but she was uncertain about aspects of that condition due to insufficient information. However, she said she felt that the plaintiff was overstating his emotional and physical complaints, and she felt it was therefore difficult to be definite about his psychiatric diagnosis at that time. She noted the plaintiff's depressive condition had the potential to impact on his motivation and on his ability to work. In particular, she concluded: "1.13 In terms of general prognosis, I consider it highly likely that Mr Webb's pain complaints and mood will improve following the resolution of his personal injury claim, particularly if he perceives the outcome as satisfactory. 1.14 In relation to the issue of whether Mr Webb displays signs of malingering, exaggeration or embellishment, I am of the opinion that this is certainly the case in relation to his cognitive difficulties and probably the case in relation to his pain complaints and psychological symptoms at the present time." [Exhibit "6", pp 83 - 84]; The context of those latter remarks by Dr Langeluddecke was that she administered a test called Test of Memory Malingering (TOMM). In expressing her above cited view that the plaintiff displayed signs of malingering, exaggeration and embellishment, she did not include in her analysis how, if at all, she made allowances for the plaintiff's intake of medications for his depressive disorder, and the potential for those circumstances to have an impact on his functioning, particularly his concentration and his processing speed, a factor she acknowledged as relevant (at par 1.11 on p 83), of her report. That matter also needs to be evaluated in the context of her observation (at par 1.3 on p 81), that the plaintiff was easily overwhelmed and frustrated. Dr Langeluddecke's conclusion (at par 8.9 on p 98), was that certain test results revealed "abnormally discrepant" results which, without explaining why, were "well within the non-credible range relative to a mixed sample …" She also reiterated (at par 8.10 on p 99), that her testing of the plaintiff with the demands of more complex tasks revealed signs of frustration, and she observed he gave up on them easily. Those matters raise a question as to the adequacy of her analysis in terms of reasons, and that question must be considered in any assessment of the reliability of the cited opinions within the report of Dr Langeluddecke; 1. On 15 September 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 16 September 2014 to 14 October 2014: Exhibit "E", Tab 32, pp 719 - 722; 2. On 13 October 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 15 October 2014 to 12 November 2014: Exhibit "E", Tab 32, pp 723 - 725; 3. On 7 November 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 12 November 2014 to 11 December 2014: Exhibit "E", Tab 32, pp 726 - 729; 4. On 8 December 2014, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 8 December 2014 to 5 January 2015: Exhibit "E", Tab 32, pp 730 - 732; 5. On 5 January 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 5 January 2015 to 2 February 2015: Exhibit "E", Tab 32, pp 733 - 736; 6. On 22 January 2015, at the request of the plaintiff's solicitor, the plaintiff's treating clinical psychologist, Ms Blane-Brown, prepared a critical commentary on matters of diagnosis and remaining unanswered questions which she considered to have arisen from the opinions of Dr Langeluddecke, the defendant's medico-legal clinical psychologist, who had suggested the plaintiff did not sustain a traumatic brain injury, and Dr Haik's view that the plaintiff was likely to be malingering and overstating his physical symptoms: Exhibit "C", Tab 7, pp 101 - 103. As Ms Blane-Brown's critique was not contradicted by an expert of like qualifications, I propose to draw upon it in analysing the report of Dr Langeluddecke; 7. On 31 January 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 30 January 2015 to 27 February 2015: Exhibit "E", Tab 32, pp 737 - 740; 8. On 20 February 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 22 February 2015 to 24 March 2015: Exhibit "E", Tab 32, pp 741 - 743; 9. On 23 March 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 23 March 2015 to 20 April 2015: Exhibit "E", Tab 32, pp 744 - 746; 10. On 18 May 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 18 May 2015 to 16 June 2015: Exhibit "E", Tab 32, pp 747 - 749; 11. On 17 June 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 16 June 2015 to 13 July 2015: Exhibit "E", Tab 32, pp 750 - 752; 12. On 10 July 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 10 July 2015 to 7 June 2015: Exhibit "E", Tab 32, pp 753 - 755; 13. On 3 August 2015, the plaintiff underwent a MAS assessment carried out by Assessor David Johnson, a physician: Exhibit "6", pp 148 - 174. The assessment (at p 173), concluded that the plaintiff's neck and left subclavian axillary vein thrombosis and laceration of the right lobe of the liver were caused by the accident, and that his faecal incontinence was not caused by the accident. Assessor Johnson stated (at p 160) that he drew upon some supplied video surveillance prior to his examination of the plaintiff, and (at p 161) he expressed the following opinion: "In my opinion none of these observations were of particular value to my assessment of the effects of a large venous thrombosis of the axillary vein or relevant to his abdominal injuries. None of these observations contributes to my assessment of faecal incontinence, but his normal gait and bending and lifting was not consistent with someone who had frequent faecal incontinence with frequent liquid bowel actions occurring without warning, where abdominal straining might precipitate faecal incontinence." [Exhibit "6", p 161]; The procedural fairness and the reliability of that opinion are determined by the fact the plaintiff was not given a fair opportunity to comment on those matters, and the context, namely this was only a threshold assessment question: s 131 of the MAC Act; Pham v Shui [2006] NSWCA 373, at [90]; 1. On 4 August 2015, the plaintiff underwent a MAS assessment carried out by Assessor Michael Rochford, a nephrologist: Exhibit "6", pp 175 - 183. The assessment (at p 181) concluded that the contusion and infarction to the plaintiff's right kidney was caused by the accident. Nothing of significance to these proceedings arises from that assessment; 2. On 4 August 2015, the plaintiff underwent a MAS assessment carried out by Assessor Ian Cameron: Exhibit "6", pp 184 - 193. Assessor Cameron was tasked with determining whether certain of the plaintiff's injuries were caused by the subject accident. He determined (at pp 190 - 191), that the accident caused the plaintiff to suffer a minor head injury, and thoracic spine injury, and that the plaintiff did not receive neck or lumbar injuries in that accident. Assessor Cameron's reference (at p 192), to a Mr "Stefanakis", a name that had no relevance to this case, in discussing the plaintiff's thoracic spine problems, was either a typographical or word processing error. That matter remained unexplained. His opinions have no consequence in these proceedings; 3. On 5 August 2015, the plaintiff underwent a MAS assessment carried out by Assessor Allan Meares, a plastic surgeon: Exhibit "6", pp 194 - 203. Assessor Meares examined and described (at p 197), the scarring to the plaintiff's right elbow and chest, the latter comprising an area of 310mm x 230mm, with a contour defect and some sensitivity and adherent tethering to underlying structures. He described (at p 199), the plaintiff's self-consciousness over the chest scarring; 4. On 7 August 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 8 August 2015 to 4 September 2015: Exhibit "E", Tab 32, pp 756 - 757; 5. On 4 September 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 4 September 2015 to 2 October 2015: Exhibit "E", Tab 32, pp 758 - 760; 6. On 22 September 2015, the plaintiff underwent a MAS assessment carried out by Assessor Professor David Bryant, a respiratory physician: Exhibit "6", pp 204 - 210. This assessment concerned the plaintiff's lungs, chest, respiratory problems and chronic pain disorder. The relevant symptoms were recorded (at p 206), as being an intermittent dry cough, chest tightness and discomfort, difficulty in deep breathing due to sharp right-sided chest pain in the region of the sternum, radiating to the axillary area, and a related pulling sensation. The plaintiff described those matters as affecting his activities. Professor Bryant stated (at p 207), that he found no inconsistencies in the plaintiff's history. Professor Bryant determined (at p 208), that the matters he was asked to review were caused by the subject accident; 7. On 22 September 2015, the plaintiff underwent a MAS assessment carried out by Assessor Mathew Jones, a psychiatrist: Exhibit "6", pp 211 - 223. At that time, Assessor Jones noted (at pp 213 - 216) the plaintiff's psychiatric symptoms, history and treatment, and that the plaintiff was not seeing a psychiatrist at that particular time, but was seeing a psychologist up to two times per month. Assessor Jones noted (at p 218), the plaintiff's unusual and complicated inconsistencies, and stated "there were no major inconsistencies" and there was significant pain focus, anxiety, and preoccupation with faecal incontinence. Significantly, Assessor Jones noted (at pp 218 - 219), the critical remarks of Dr Haik and Dr Langeluddecke concerning the various comments over perceived embellishment, malingering and the absence of a psychiatric diagnosis, and he did not adopt or otherwise endorse those remarks. Assessor Jones considered (at p 219), that the considerable amount of surveillance material was not informative from a psychiatric perspective. He concluded (at p 220), that the plaintiff had an accident-related chronic adjustment disorder, with depressed and anxious mood, not inconsistent with the list of injuries he was asked to consider; 8. On 30 September 2015, Dr Mobilia issued a medical certificate that has been incompletely copied so that the applicable date range is not discernible: Exhibit "E", Tab 32, pp 761 - 763; 9. On 26 October 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 26 October 2015 to 23 November 2015: Exhibit "E", Tab 32, pp 764 - 766; 10. On 19 November 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 19 November 2015 to 16 December 2015: Exhibit "E", Tab 32, pp 767 - 769; 11. On 14 December 2015, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 14 December 2015 to 11 January 2016: Exhibit "E", Tab 32, pp 770 - 771; 12. On 16 December 2015, Dr Todhunter performed an operative procedure upon the plaintiff in order to trial a treatment for spinal cord stimulation for thoracic neuropathic pain, but this produced no noticeable relief from the plaintiff's experience of anterior chest wall rib pain: Exhibit "C", Tab 17, p 133. Dr Todhunter requested (at p 134) the worker's compensation insurer approve a further and different procedure called a St Jude's Trial. An examination of Exhibit "K", which comprises the worker's compensation payment schedules does not reveal whether that recommended procedure subsequently occurred; 13. On 11 January 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 11 January 2016 to 8 February 2016: Exhibit "E", Tab 32, pp 772 - 773; 14. On 5 February 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 5 February 2016 to 3 March 2016: Exhibit "E", Tab 32, pp 774 - 775; 15. On 1 March 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 1 March 2016 to 28 March 2016: Exhibit "E", Tab 32, pp 776 - 778; 16. On 26 March 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 29 March 2016 to 26 April 2016: Exhibit "E", Tab 32, pp 779 - 781; 17. On 20 April 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 20 April 2016 to 18 May 2016: Exhibit "E", Tab 32, pp 782 - 784; 18. On 16 May 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 16 May 2016 to 13 June 2016: Exhibit "E", Tab 32, pp 785 - 787; 19. On 18 May 2016, at the request of his solicitor, the plaintiff was assessed by Dr Geoffrey Boyce, a consultant neurologist, to assess whether the plaintiff had a possible traumatic brain injury and chronic pain syndrome following the subject accident: Exhibit "3". Dr Boyce described the plaintiff's extensive scar as indurated, with contour defects and staple marks in the area of the scarring. He noted (at p 5), a "vague sensory cut-off at approximately the T3 level": Dr Boyce assessed the plaintiff as having intercostal neuralgia and raised the possibility of the plaintiff having experienced a spinal shock at a thoracic level (at p 6), and at (pp 7 - 8), and he concluded the plaintiff had a severe spinal whiplash injury, thoracic scarring and intercostal neuralgia, without likelihood of change. I read Dr Boyce's reference to the plaintiff's intercostal neuralgia "by way of allergy" as a typographical error for "analogy"; 20. On 1 June 2016, Dr Boyce prepared a supplementary report in which he acknowledged receipt of some earlier medical reports which he confirmed had been available to him at the time of his assessment on 18 May 2016; 21. On 9 June 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 9 June 2016 to 6 July 2016: Exhibit "E", Tab 32, pp 788 - 790; 22. On 10 June 2016, at the referral of Dr Mobilia, the plaintiff underwent an MRI scan of his thoracic spine as part of the ongoing management and investigation of his chest wall pain, dyspnoea, and incontinence. That scan was interpreted as, whilst not showing significant neural compression abnormality, nevertheless showing mild degenerative spondylosis in the mid-thoracic spine and shallow focal right foraminal zone disc protrusions at the T2/3 and T3/4 levels, with possibly, some contact of the exiting right T2 nerve root: Exhibit "D", Tab 22, pp 537 -538; Exhibit "2", p 399; 23. On 10 June 2016, also at the referral of Dr Mobilia, at the suggestion of a neurologist, the plaintiff underwent a head CT scan in the context of the subject accident. The scan was reported as showing no evidence of acute intra-cranial pathology: Exhibit "2", p 400; 24. On 24 June 2016, the plaintiff underwent a diagnostic MRI of the brain, which was reported as showing no abnormality: Exhibit "2", p 402; 25. On 5 July 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 5 July 2016 to 2 August 2016: Exhibit "E", Tab 32, pp 791 - 793; 26. On 29 July 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 29 July 2016 to 26 August 2016: Exhibit "E", Tab 32, pp 794 - 796; 27. On 24 August 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 24 August 2016 to 21 September 2016: Exhibit "E", Tab 32, pp 797 - 799; 28. On 16 September 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 16 September 2016 to 14 October 2016: Exhibit "E", Tab 32, pp 800 - 802; 29. On 12 October 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 12 October 2016 to 10 November 2016: Exhibit "E", Tab 32, pp 803 - 805; 30. On 7 November 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 11 November 2016 to 7 December 2016: Exhibit "E", Tab 32, pp 806 - 808; 31. On 19 December 2016, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 19 December 2016 to 16 January 2017: Exhibit "E", Tab 32, pp 809 - 812; 32. On 9 January 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 9 January 2017 to 6 February 2017: Exhibit "E", Tab 32, pp 813 - 815; 33. On 20 January 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Schutz for a fourth time. Dr Schutz's 24 page report of that consultation was issued on the same date as that consultation: Exhibit "6", pp 106 - 130. Dr Schutz drew upon his earlier reports dated 2009, 2010 and 2012. Dr Schutz reviewed some medical reports and noted (at pp 108 - 111), Dr Haik's opinion that the plaintiff did not have a psychiatric disorder, but instead had questioned motives for his complaints. Dr Schutz, (at p 118), informed the plaintiff of the fact that there was DVD surveillance material which he had seen, from 2013, 2015 and 2016, but his report does not identify any discussion with the plaintiff on particular observations considered by Dr Schutz to have been indications of "likely … voluntary exaggeration" on his part, or indications of his "considerable doubt about the level of symptoms" (at p 124). Dr Schutz stated (at p 126), there was no evidence of any local or other condition likely to cause or contribute to the plaintiff's claimed faecal incontinence. He referred (at p 127), to a "non-organic" presentation. Dr Schutz stated that in his opinion (at p 127): "From the DVD surveillance film [the plaintiff was] observed to be normal in the context of all the observations" although there was the possibility of mild residual right chest wall restrictions that were "highly unlikely to cause any significant restriction". There is no evidence that Dr Schutz gave the plaintiff the fair opportunity to comment on those matters. Nevertheless, he considered or more accurately, acquiesced to the view (at p 129), that the plaintiff displayed features of exaggeration or embellishment. In coming to that conclusion, Dr Schutz appears not to have considered any relevant psychiatric matters; 34. On 20 January 2017, (at p 129) Dr Schutz commented on the video observations of the plaintiff recorded in 2013, 2015 and 2016. He described the plaintiff's 2013 movements as being free and without symptoms or restrictions. He did not explain how that surveillance material should be taken to have excluded "symptoms". A similar conclusion arises in respect of like comments he made concerning the 2015 video evidence. He also stated the 2016 video observations showed the plaintiff moving freely with no sign of any abnormality. The fairness and the reliability of those remarks stand to be analysed. 35. On 23 January 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr O'Neill for a fourth time: Exhibit "6", pp 103 - 105. In his report of that consultation Dr O'Neill again acknowledged (at p 104), that he was wrong in his earlier expressed opinion on 14 October 2013 to the effect that the plaintiff had localised neuropathic pain arising from damage to an intercostal nerve. He considered (at p 105), that there was "a major psychosomatic component" to the plaintiff's presentation, and he suggested the plaintiff be slowly weaned off one of his medications which was being given for neuropathic pain, as he could not identify any clear mechanism other than altered sensation in the related scars for the plaintiff's right-sided chest wall pain. Significantly, with regard to the suggestions the plaintiff may have been exaggerating his claims, in noting the plaintiff's prognosis for significant improvement in function was poor, Dr O'Neill noted (at p 105), that: "Mr Webb was very distressed at the time I saw him - partly in relation to the fact that I had been detained for so long. Neither today nor on previous occasions was there any obvious embellishment or exaggeration of symptoms but it is my view that his symptoms primarily have a psychosomatic basis." [Exhibit "6", p 105] [Emphasis added]; 1. On 1 February 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 1 February 2017 to 1 March 2017: Exhibit "E", Tab 32, pp 816 - 818; 2. On 13 February 2017, at the request of the solicitor for the defendant, the plaintiff underwent an occupational therapy assessment by Ms Susan Dinley: Exhibit "6", pp 132 - 147. It is no longer necessary to undertake a detailed evaluation of Ms Dinley's report since the claim for damages for domestic assistance is no longer pressed. Ms Dinley's opinions do not impact on matters of medical diagnosis, or on the issue of the plaintiff's credit; 3. On 24 February 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 24 February 2017 to 24 March 2017: Exhibit "E", Tab 32, pp 819 - 821; 4. On 8 March 2017, the plaintiff underwent a MAS assessment carried out by Assessor Mark Burns, a physician: Exhibit "6", pp 224 - 231. Assessor Burns gave consideration to the plaintiff's lung and chest issues, including his respiratory problems and chronic pain disorder. He concluded (at p 229), that those problems were accident-related; 5. On 20 March 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 24 March 2017 to 21 April 2017: Exhibit "E", Tab 32, pp 822 - 825; 6. On 5 April 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 5 April 2017 to 3 May 2017: Exhibit "E", Tab 32, pp 826 - 829; 7. On 26 April 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 26 April 2017 to 24 May 2017: Exhibit "E", Tab 32, pp 830 - 833; 8. On 9 June 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 9 June 2017 to 7 July 2017: Exhibit "E", Tab 32, pp 834 - 837; 9. On 21 June 2017, the plaintiff was reassessed by Dr Klug: Exhibit "C", Tab 1, pp 33 - 45. On this occasion Dr Klug reviewed further materials that had been provided to him, including the plaintiff's medical records from childhood, and some reports from his professional colleagues, Dr Jones, Dr Haik, Dr George, Dr Langeluddecke, and the occupational therapy assessment. After reviewing his previous reports, updating the plaintiff's list of current complaints (at pp 33 - 37), and considering the products of his interview with the plaintiff's partner (at pp 37 - 38), updating his own mental state review of the plaintiff (at pp 38 - 43), and reviewing and analysing the further material provided to him, Dr Klug (at p 44), updated the detail of his opinion on the plaintiff's problems, which he identified as a chronic post-traumatic stress disorder, now a possible chronic major depression disorder, recurrent panic attacks with faecal incontinence, and secondary pathological gambling. He also pointed to the MAS assessment by Dr Jones as indicating a continuing deterioration in the plaintiff's mental state since the time the plaintiff saw Dr Jones on 20 October 2015; 10. On 3 July 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 3 July 2017 to 1 August 2017: Exhibit "E", Tab 32, pp 838 - 841; 11. On 14 July 2017, at the request of the solicitor for the worker's compensation insurer, the plaintiff was examined by Dr Peter Anderson, a consultant psychiatrist. Dr Anderson was impressed with the plaintiff's clear history of him having a painful condition following the accident accompanied by a clear history of psychiatric symptomatology the onset of which was fairly soon after the accident, and continuing, with deterioration in functioning. Dr Anderson agreed with the diagnosis of PTSD along with a major depressive disorder, with a limited response to appropriate treatment. Dr Anderson ascribed an 18 per cent whole person impairment rating to the plaintiff's situation: Exhibit "C", Tab 3, pp 57 - 71. Dr Anderson gave unchallenged oral evidence which I will draw upon when analysing the conflicting medico-legal opinions: T145 - T146.22; 12. On 28 July 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 3 July 2017 to 1 August 2017: Exhibit "E", Tab 32, pp 842 - 845; 13. On 6 September 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 25 August 2017 to 22 September 2017: Exhibit "E", Tab 32, pp 846 - 848; 14. On 22 September 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 22 September 2017 to 20 October 2017: Exhibit "E", Tab 32, pp 850 - 852; 15. On 16 October 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 16 October 2017 to 13 November 2017: Exhibit "E", Tab 32, pp 853 - 856; 16. On 10 November 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate which has been incompletely copied: Exhibit "E", Tab 32, pp 857 - 859; 17. On 1 December 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 1 December 2017 to 21 December 2017: Exhibit "E", Tab 32, pp 860 - 862; 18. On 4 December 2017, the plaintiff underwent a MAS assessment carried out by Assessor MC Prior, a psychiatrist, who certified the plaintiff's final whole person percentage impairment, on psychiatric grounds, to be 22 per cent: Exhibit "E", at Tab 24, pp 562 - 591. That assessment included the consideration of surveillance reports and DVDs in respect of surveillance carried out on 7 August 2015, 12 September 2016, 24 January 2017 and 3 February 2017. Assessor Prior found (at p 584), that the subject accident caused the plaintiff to have chronic post-traumatic stress disorder, a co-morbid major depressive disorder with secondary panic phenomena, and a gambling disorder, now in remission, but secondary to chronic post-traumatic stress disorder and co-morbid major depressive disorder. Assessor Prior's tabulation of reasons (at pp 585 - 590), in support of those findings, setting out explanatory details by reference to the plaintiff's self-care and personal hygiene, his social and recreational activities, travel issues, social functioning, concentration, persistence and pace, and his adaptation since the subject accident, is compelling and persuasive for acceptance of the plaintiff's complaints. 19. On 15 December 2017, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 15 December 2017 to 16 January 2018: Exhibit "E", Tab 32, pp 863 - 866; 20. On 15 January 2018, Dr Mobilia issued the plaintiff with a workcover medical certificate covering the period 15 January 2018 to 12 February 2018: Exhibit "E", Tab 32, pp 867 - 869; 21. On 16 January 2018, Dr Klug provided the solicitor for the plaintiff with an explanatory letter, in which he stated that in his opinion, based on his series of prior consultations with the plaintiff between 2008 and 2017, the plaintiff remained profoundly psychiatrically unwell, and was suffering from a chronic post-traumatic stress disorder, a likely chronic major depressive disorder, current panic attacks and secondary pathological gambling: Exhibit "C", Tab 1, pp 46 - 47. Dr Klug noted that on the history he obtained from the plaintiff's partner, the plaintiff was psychologically very unwell, with worsening symptoms, resulting in a negligible capacity for either full or part time work. Dr Klug also gave oral evidence which I will draw upon when analysing the conflicting medico-legal opinions; 22. On 1 February 2018, the fourth day of the trial, the defendant produced an affidavit affirmed by Dr Schutz on 31 January 2018, in which he noted that not all of his 5 reports certified that he had read the Expert Witness Code of Conduct contained in Sch 7 to the Uniform Civil Procedure Rules 2005. In particular, his affidavit concluded with the following statements: "4. I acknowledge that the Uniform Civil Procedure Rules include requirements concerning expert witnesses and their reports and am aware of, and have read, the code of conduct set out in Schedule 7 of the Uniform Civil Procedure Rules and agree to be bound by it. 5. I note the omission to the expert witness code of conduct in the reports, however, the reports were prepared in accordance with the code at the time despite note (sic) being acknowledged in the body."
Dr Schutz's after-the-event explanation for not acknowledging the Expert Witness Code of Conduct in his earlier reports requires evaluation, first, as to whether that explanation is satisfactory and acceptable in the circumstances of this case as they have unfolded, and secondly, whether on analysis, key aspects of Dr Schutz's opinions in fact comply with the pre-requisites of the Expert Witness Code of Conduct concerning the provision of reasons for his opinions, and the related question of whether those reasons are acceptable.
I now turn to the analysis and the consideration required for making findings on matters of conflict arising from within the evidence comprising the medical evidence and the medico-legal opinions tendered in these proceedings.

(5) Diagnostic conclusions of treating doctors

The plaintiff's treating doctors and psychologists expressed unambiguous opinions in their correspondence as to the diagnosis of the plaintiff's post-accident problems. Those opinions did not require an acknowledgment of the Expert Witness Code of Conduct because the opinions set out in that correspondence were formed in the clinical treatment setting, and were not formed with litigation in mind.
The defendant has not required any of the plaintiff's treating practitioners to be called to give evidence and be cross-examined, either to test the factual basis of their clinical opinions, or to put to them alternative hypotheses that supported diagnostic conclusions that were of a different nature to those that respectively appear in their correspondence and in their related notes produced on subpoena.
Instead, the defendant sought to rely upon medico-legal opinions from the defendant's appointed experts that either contradicted or cast doubt upon the diagnostic conclusions of the plaintiff's treating practitioners. In either case, those defendant's medico-legal opinions, as well as those opinions tendered in the plaintiff's case, must comply with the obligations that apply to opinion evidence from all expert witnesses: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
In essence, the plaintiff's treating practitioners have identified their factual diagnoses of the plaintiff's ongoing problems as being: chronic neuropathic chest wall pain; occasional weakness and tremor of the right arm on exertion; psychiatric illness and related symptoms in several forms, comprising chronic post-traumatic stress disorder, depression, adjustment disorder and chronic pain syndrome; and the occurrence of faecal incontinence caused by panic attacks.
As to the plaintiff's complaint of chest wall pain, his treating doctors have described this as neuropathic pain: Exhibit "C", Tab 11, pp 119 - 122. Those opinions are supported by some medico-legal evidence relied upon by the plaintiff: Exhibit "3". The only expert source of contradiction to that diagnosis comes from the defendant's expert neurologist, Dr O'Neill, whose views on whether the plaintiff's right chest wall pain is neuropathic, have vacillated over time, and which are of doubtful reliability, as will shortly be made clear.
Given that a full complement of Dr O'Neill's series of reports was not tendered in evidence in these proceedings, I regard his arguments against the plaintiff having neuropathic chest pain to be unreliable, as observed at sub-paragraphs (92) and (195) of paragraph [98] above. Instead, I prefer the more reliable opinions of Dr Boyce and the doctors of the Pain Clinic, which are to the contrary of Dr O'Neill's views on that issue.
As to the plaintiff's complaint of right arm weakness, on exertion, with a related tremor, the plaintiff had made that complaint from an early stage. It is of some significance to the analysis to note that in Dr Voss' examination of the plaintiff on 14 April 2008, he identified that the origin of the plaintiff's serratus anterior muscle at the right shoulder, was almost certainly injured when he injured the right side of his chest, and that muscle was responsible for forward thrusting movements of the scapula, and that there would be traction upon the muscle with rotation of the scapula which occurs during arm abduction: Exhibit "C", Tab 4, p 82. On 23 February 2010, Dr Davis' examination revealed that abduction elevation of the right shoulder, such as when removing and replacing garments results in a pulling sensation in that region: Exhibit "C", Tab 5, p 88. Dr Mobilia diagnosed the plaintiff's right upper limb tremor in actions such as writing or using power tools: Exhibit "C", Tab 6, p 99. None of those identified opinions were objected to, nor were they reliably contradicted by qualified experts from within any field of physical medicine.
The principal source of argued doubt raised as to the plaintiff's right arm tremor came from Dr Haik, who was not a neurologist, but who claimed, that on his examination of the plaintiff (as a psychiatrist) on 5 October 2010, he noted a coarse vibration of the plaintiff's arm on certain movements, which he stated was "unlike a neurological tremor": Exhibit "6", p 28.
Given that Dr Haik did not describe the nature of any physical examination of the plaintiff, or what a neurological tremor should look like, and given that he was a psychiatrist, and not an expert in physical medicine, I consider that his cited comment on this issue should be discounted as being of doubtful reliability in this context. Instead, the preponderance of the evidence is in favour of an acceptance of the other opinions that I have cited on this issue. I do not consider the video surveillance material to be of sufficient clarity or specificity to serve as a basis for refuting the plaintiff's evidence of complaint on this issue.
As to the plaintiff's psychiatric diagnosis and related symptoms, his treating doctors have variously described those illnesses as identified at paragraph [104] above. The only contradiction to those diagnostic conclusions comes from the defendant's expert psychiatrist, Dr Haik, whose opinions purported to refute the appropriateness of those diagnoses, and Dr Langeluddecke, who like Dr Haik, considered the plaintiff was malingering, although Dr Haik used different terminology, but to the same effect. That divergence of opinion is the subject of findings that will shortly follow.
As to the plaintiff's problem of faecal incontinence following extensive examinations and investigations by treating doctors, it was concluded that there was no identifiable physical cause or abnormality for that faecal incontinence: Exhibit "C", Tab 16, p 132. However, Dr Klug concluded the plaintiff's faecal incontinence was probably caused by his experience of panic attacks: Exhibit "C", Tab 1, p 25; T140.18 - T141.30. There was no challenge to that opinion.

(6) Findings on conflicting medico-legal opinions

Before making findings on the plaintiff's ongoing accident-related disabilities and assessing his entitlement to damages, it is necessary to resolve matters of conflict within the array of the medico-legal opinions that have been tendered in evidence insofar as they differ in relation to the diagnostic conclusions of the plaintiff's treating doctors on several topics of claimed disability that will form part of the framework for my findings on the nature and the extent of the disabilities that continue to affect the plaintiff.

Principles that guide the analysis

In cases such as this, where some of the medico-legal opinion givers who had expressed criticisms of the plaintiff were not called to give oral evidence to explain the basis of their opinions, or where they were not required for cross-examination to test those opinions, the task of reconciling conflicting expert opinions for the purpose of making findings on the issues in dispute, is an exercise accompanied by well-recognised difficulties: Cupac v Cannone [2015] NSWCA 114, at [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] - [22].
In those circumstances, the course to be followed is that where expert evidence is ultimately found to be wanting in terms of providing a rational basis for reliability, the end result of the analysis is likely to be that the party with the onus of proof on a particular issue may well fail on that issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
My analysis will first review and evaluate the reliability of the diagnostic opinions given by the plaintiff's treating doctors. The analysis will then proceed to evaluate the medico-legal opinions relied upon by each of the parties to determine whether those opinions should be seen to be a reliable basis upon which to make findings either in favour of, or adverse to, the plaintiff. In light of the critical matters revealed in the chronological review of medical and allied opinions, at paragraph [98] above, that analysis necessarily involves making evaluations of the opinions of Dr O'Neill, Dr Haik, Dr Schutz and Dr Langeluddecke, as the content of the opinions of those experts have raised questions as to their reliability.
Any such analysis must commence with the recognition that opinions of the kind under present evaluation must comply with the fundamental rules governing admissibility and reliability for such opinions, particularly UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). The degree to which the opinions in question are compliant with those requirements, as explained by well settled authority, will assist to determine questions over the reliability of those opinions: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93].
That analysis, which shortly follows, must be preceded by the preliminary exercise of reviewing the opinions of the plaintiff's treating practitioners and then it must move to a comparative analysis of the body of opinions in conflict on specific matters of fact and disputed opinion.

Opinions of the plaintiff's treating practitioners

The tendered reports of the plaintiff's treating doctors and other treating practitioners did not include any acknowledgment of the Expert Witness Code of Conduct.
In my view, in this case, that omission should not be seen as critical to the question of reliability of the opinions of those practitioners. This is because the obvious purpose of those reports was to communicate and provide the relevant historical factual background, and to identify their diagnostic pathways and conclusions or opinions, when they clinically assessed the plaintiff and provided him with treatment.
In those circumstances, the absence of an acknowledgment of the Expert Witness Code of Conduct should not in this case preclude reliance on those reports as to factual matters, and for the factual identification of the respective clinical diagnoses of the plaintiff as made by those practitioners. This is so especially where their opinions were not directly challenged by the defendant and those practitioners were not required for cross-examination.
The foregoing conclusion concerning the non-acknowledgment of the Expert Witness Code of Conduct applies to the respective opinions of the general practitioners who have, over time, consistently diagnosed and certified the plaintiff to have neuropathic chest pain, post-traumatic stress disorder, depression and continuing unfitness to work, as is evidenced by the numerous workcover medical certificates issued to the plaintiff from shortly after the subject accident and a continuing to the present time. That is apparent from the workcover certificates referred to between sub-paragraphs (14) to (284) of paragraph [98] above.
The foregoing conclusion concerning the non-acknowledgment of the Expert Witness Code of Conduct by treating practitioners also arises with regard to the early psychiatric diagnosis of the plaintiff's depression and post-traumatic stress disorder in December 2007 by Dr Burek, as identified in sub-paragraph (33) of paragraph [98] above. The factual matter of the plaintiff's psychiatric diagnosis is a matter of some importance to the outcome of the case, and as earlier adverted to, it is the subject of significant divergence of opinion in the respective medico-legal opinions relied upon by the parties.
The above stated conclusion concerning the non-acknowledgment of the Expert Witness Code of Conduct by treating practitioners also applies in relation to Dr Grassby's assessment of the plaintiff's chest wall pain, which was still apparent when Dr Grassby saw the plaintiff on 28 July 2007, as first appears in the medical chronology at sub-paragraph (10) of paragraph [98] above, and which then continued, along with the emergence of weakness of the right arm as the plaintiff sought to be more active after the initial recuperation from the injuries he sustained in the accident. That appears in the medical chronology at sub-paragraph (26) of paragraph [98] above, and where those problems were noted to continue on the various subsequent occasions when the plaintiff was examined, assessed and certified by his treating doctors as being unfit for work.
On 27 June 2008 and 16 May 2009, the Pain Clinic diagnosis of persistent right chest wall pain and a post-traumatic syndrome and mood swings was documented, as appears in the medical chronology at sub-paragraphs (50) and (69) of paragraph [98] above. The non-acknowledgment by the Pain Clinic practitioners with regard to the Expert Witness Code of Conduct is in the same category as set out in the immediately preceding paragraphs.
In my view, the patterns within those clinical assessments and certifications, which were not influenced by the medico-legal process, provide relatively contemporaneous and satisfactory evidence of the clinical basis for the diagnoses identified by the plaintiff's treating practitioners.
The records that base the chronology of medical and allied treatment and assessment of the plaintiff, as set out at paragraph [98] above, show that between May 2007 and December 2007, the focus of the plaintiff's treatment was on physical matters, including his chronic chest pain in particular.
By December 2007, Dr Burek had formally identified the plaintiff's depression and post-traumatic stress disorder: Exhibit "9", Tab 9, p 117 Those problems continued unabated until the time the plaintiff was assessed and treated at the Royal North Shore Hospital Pain Clinic, commencing on 27 June 2008. The specialists at the Pain Clinic determined that the plaintiff had persistent and disabling neuropathic chest wall pain, post-traumatic stress disorder and depression: Exhibit "C", Tab 11, pp 119 - 122.
Those stated problems have been identified to be ongoing, as is evidenced by the multiple entries appearing in the clinical records of the plaintiff's treating general practitioners, and as also appears in the serial workcover medical certificates that the plaintiff's treating doctors have issued to him over the course of time since the accident, and which are current to the present time.
The plaintiff's various psychological diagnoses of post-traumatic stress disorder, depression and adjustment disorder, also emerge in the opinions of his treating and assessing psychologists, namely Ms Yeates, Mr Langmead and Ms Blane-Brown: Exhibit "2", pp 298 - 300; pp 314 - 316; Exhibit "D", Tab 21, pp 429; pp 442 - 444; Exhibit "D", Tab 21, pp 464 - 465.
In my assessment, those identified conclusions, as expressed by the plaintiff's treating practitioners, do not, on their face, appear inconsistent, illogical, or glaringly improbable, especially recognising that they were formed in the context of the treatment setting.
A rejection of those conclusions requires, satisfactorily reasoned and cogent contrary opinion, and a rejection, at least in part, of the plaintiff's evidence in which he described his post-accident symptoms and related difficulties. There is nothing within the evidence that persuades me that the plaintiff's evidence should be rejected in any material part.
I now turn to review the pattern of opinions that emerge from the reports of the various specialists who have examined the plaintiff for medico-legal purposes over the course of the past 10 years.
The analysis that follows is principally concerned with the psychological effects of the plaintiff's injuries, as that is a key aspect of the consideration of the suggestions raised by the defendant's experts over whether the plaintiff has been malingering, overstating or exaggerating his problems.
The conflict in the medical evidence concerning the plaintiff's physical complaints is more conveniently dealt with in due course in that part of my reasons that identify my findings concerning the plaintiff's ongoing disabilities.
Within the array of conflicting expert medico-legal opinions, the nature and the extent of the plaintiff's psychiatric and pain-based conditions have, to varying degrees, been placed into contention by the experts relied upon by the defendant, namely, Dr O'Neill, Dr Haik, Dr Schutz and Dr Langeluddecke, who questioned the genuineness and the extent of the plaintiff's complaints.
Before analysing the cogency and acceptability of those opinions, I will first analyse the medico-legal opinions that support the plaintiff's case, namely the opinions of Dr Voss, Dr Davis, Dr Boyce, Dr Klug, Dr George, Dr Anderson, and the MAS assessments.

Dr Voss' opinions

When Dr Voss assessed the plaintiff at the request of the plaintiff's solicitor on 25 March 2008, for the purpose of identifying his physical problems, he went on to express the view that the plaintiff was also affected by an obvious anxiety-depressive state, this being a manifestation of post-traumatic stress: Exhibit "C", Tab 4, pp 72 - 84. That conclusion, which was one that was available to be made by Dr Voss in his role as a specialist in rehabilitation medicine, reasonably followed from the history he took from the plaintiff, and it was reasonably supported by his recorded findings on examination of the plaintiff, in compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). There was no suggestion made by the defendant to the contrary of that view, and Dr Voss' opinion was not the subject of challenge.

Dr Davis' opinions

Dr Davis' opinion dated 23 February 2010 noted that the plaintiff's major response to his injury was his psychological reaction and the development of a chronic post-traumatic stress disorder with a chronic pain syndrome: Exhibit "C", Tab 5, pp 89 - 91. It was an opinion which was available for Dr Davis to make in his capacity as a specialist in occupational medicine. Dr Davis' opinion referred to the plaintiff's potentially life threatening situation that he experienced in the accident, when his vehicle was sliced open in the collision, in circumstances where he also sustained physical trauma. The opinion of Dr Davis was amply supportable on the evidence he cited, and it was also expressed in terms that were in compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). There was no suggestion to the contrary of that view. The opinion of Dr Davis was not the subject of challenge.

Dr Boyce's opinions

Dr Boyce's neurological opinion dated 18 May 2016 stated that the plaintiff's impairments included intercostal neuralgia in relation to his right-sided chest pain: Exhibit "3", pp 6, 8, 9. He did not express any views on the plaintiff's psychiatric disorders.

Dr Klug's opinions

Dr Klug's first assessment of the plaintiff, on 14 June 2008, interpreted the plaintiff's "considerable psychiatric symptoms" as comprising a chronic post-traumatic stress disorder, which is a severe anxiety disorder in response to severe traumatic stressors, such as the one to which the plaintiff had been exposed in the accident. He also diagnosed an additional chronic adjustment disorder with depressed mood, characterised by excessive distress or dysfunction in response to a significant stressor, indicating the plaintiff suffers from significant depressive symptoms in response to his physical problems: Exhibit "C", Tab 1, p 6.
Dr Klug's stated opinions are in plain compliance with the requirements of the Expert Witness Code of Conduct: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). That conclusion is apparent from the supporting history recorded by Dr Klug, where (at pp 1 - 6), he reviewed and listed at length the plaintiff's complaints, his findings on his mental examination of the plaintiff, and the early clinical material he considered and listed. There were no material inconsistencies between those matters and the evidence that was given by the plaintiff on those matters.
Dr Klug's first assessment was consistent with the earlier clinical views of Dr Burek, the visiting psychiatrist who had first assessed the plaintiff's post-accident psychiatric problems some 6 months earlier, in December 2007.
Dr Klug's second assessment of the plaintiff, on 11 August 2009, just over 2 years after the accident, went through a similar process as was the case with his first assessment, but by this time, he added the further diagnosis that at times, [of fluctuation in symptoms] the plaintiff also qualified for the assignment of a diagnosis of major depressive disorder. Dr Klug's second report (Exhibit "C", Tab 1, pp 7 - 11) was also plainly compliant with the Expert Witness Code: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Dr Klug's third assessment of the plaintiff on 4 June 2012, 5 years post-accident, took a similar course, and concluded with the opinion that the plaintiff continued to suffer from a chronic post-traumatic stress disorder and a chronic adjustment disorder with depressed mood: Exhibit "C", Tab 1, pp 1 - 19. It is plain from the terms of Dr Klug's report of that third assessment of the plaintiff, that his cited report adequately sets out the reasons and the factual basis for the expressed opinions, which was also in compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Dr Klug's fourth assessment of the plaintiff, on 11 March 2014, 7 years post-accident, was along the same lines as his previous reports: Exhibit "C", Tab 1, pp 20 - 25. After reiterating his earlier diagnoses, he added that the plaintiff had now presented with persistent and severe psychiatric symptoms, including depression of mood, suicidal thoughts and intentions, and a range of other listed psychological symptoms. He therefore considered it likely the plaintiff's chronic post-traumatic stress disorder had continued, with panic attacks, and a co-morbid major depressive disorder comprising a major mood disorder, and comprising more than just an adjustment disorder, rendering him a "very psychiatrically dysfunctional man": Exhibit "C", Tab 1, p 25. Dr Klug's reasoning for those conclusions was also amply factually grounded in his supporting analysis, which was also in compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Dr Klug's fifth assessment of the plaintiff, on 21 June 2017, 10 years after the accident, followed a similar course to his earlier assessments: Exhibit "C", Tab 1, pp 33 - 44. After re-examining the plaintiff, undertaking a mental state examination of him, then interviewing the plaintiff's partner, reviewing the documents and reports that he identified, including reports from Dr Haik and Dr Langeluddecke, and setting out his discussion on those matters (at p 44), he reiterated his earlier diagnoses that the plaintiff had a chronic post-traumatic stress disorder, possibly a chronic major depressive disorder, recurrent panic attacks with faecal incontinence, and secondary pathological gambling, with evidence of continuing deterioration in the plaintiff's condition. Dr Klug's report on his fifth assessment of the plaintiff was appropriately reasoned and was reasonably based on the factual account he cited, in plain compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
In his report that followed that fifth assessment of the plaintiff, Dr Klug also identified his disagreement with Dr Haik's stated view in which he said that the plaintiff was not suffering from a psychiatric illness: Exhibit "C", Tab 1, pp 43 and 44.
On 16 January 2018, Dr Klug prepared a report in summary form, in which he provided an overview of his earlier opinions. In that summary report, he reiterated his earlier stated view that the plaintiff remained profoundly psychiatrically unwell. Dr Klug did not alter his earlier stated diagnoses: Exhibit "C", Tab 1, pp 46 - 47. That last report by Dr Klug was also in compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Dr Klug also gave oral evidence at the trial pursuant to the request of the defendant that Dr Klug be made available for cross-examination on his reports: T132 - T146. In his oral evidence on that occasion, he did not retract any of the opinions that he had earlier expressed in his series of reports as reviewed above. The focus of the cross-examination of Dr Klug was the possibility of intensive in-patient treatment for the plaintiff, and the speculative possibility of beneficial results of that treatment for the plaintiff. Dr Klug's evidence on those matters was as follows: "Q. Do you hold to the view that he would benefit from a comprehensive inpatient treatment, notwithstanding that from your diagnosis he has suffered from post traumatic stress disorder over a number of years? A. Yes. Q. What would be the nature of such treatment? A. Well, firstly, my diagnosis has progressed from an adjustment disorder to a probable major depressive disorder. So, on the basis of that, I think he would best be treated initially in hospital and that would probably be for a period of about four to six weeks, but in an appropriate unit, and that would either Q. I'm sorry, I just missed your word? A. In an appropriate unit. Q. Unit, thank you. Sorry. A. That would either be a unit for the treatment of trauma related illnesses or a mood disorders unit, because both trauma related illnesses and mood disorders tend to occur together more often than not. So, in that type of unit, and initially it will allow a comprehensive clinical assessment and involvement of the family, but the medication regime will need to be reviewed. You would also, given that he has got considerable problems with chronic pain, liaise with pain specialists in terms of his current treatment to see if anything could be improved. On the basis of doing all of that, if he still has a major depressive disorder then that would be the first condition to treat, because treating a post traumatic stress disorder in the context of the severe mood disorder is very difficult. So his medication regime would need to be reviewed, given that he has been chronically unwell. Then a course of ECT, electro convulsive therapy, which is a widely accepted treatment for severe depressive illnesses, should be considered. So if his major depressive illness improves, he would then be in a state where he could more likely be accessible by cognitive behavioural therapy, or CBT, which is the mainstream treatment for a chronic post traumatic stress disorder. So the treatment for PTSD is primarily non pharmacological. A lot of people with PTSD are on an anti depressant regime, but that's because there is about a 70% likelihood that they will suffer from a comorbid major depressive disorder, so the medication is primarily directed towards that. In addition to that, people with PTSD have recurrent problems with what within the profession is called autonomic hyperarousal. So they're in a state of high anxiety and often have recurrent panic attacks. If people are having a lot of panic attacks, that is also amenable to pharmacotherapy medication so that's another reason to put them on an appropriate regime. Having said all of that, we've still got PTSD itself to deal with, and that really is very much on the basis of cognitive behavioural therapy, including what's called exposure therapy and response prevention. So that would be mainstream. So if the person is in hospital and can be seen frequently by both psychiatrists and psychologists, can attend groups where there is education about the nature of their condition and even if people are suffering from chronic conditions over years they often don't have an understanding of what their symptoms are and how they relate to these conditions, so you educate them, and they can be taught relaxation techniques and basic things like that, which most people don't easily employ when they're in that kind of state. And once all of that is put in place over about a month or a month and a half, usually a person is starting to respond at that point and their symptoms are improving. But then you are also in a position to try to organise comprehensive discharge planning so that they have ongoing treatment with appropriate people with the right sorts of skills, and that would be outpatient treatment after discharge would be along the lines of treatment that I've just described. So, often people require years of CBT to bring their symptoms back to a point where they are more functional. Generally speaking, once these conditions are chronic, people never fully their symptoms never fully remit, and by their very nature, these conditions tend to be fluctuating and recurrent depending on the circumstances of the person. So, as best I can tell you in a nutshell that is the type of treatment regime that was put in place. HIS HONOUR Q. Given it's now some 11 years since the onset of the trigger for this these conditions, do you have a view as to the prospect of the treatment regime you've outlined being successful ameliorating the plaintiff's complaints? A. Clearly, when symptoms are ingrained, the prospect treatment working is less. But nevertheless, it's people, even though their symptoms may not fully remit or may only partially remit, can respond very much to all those treatment modalities that I've described, so the quality of the life is improved and they are less distressed and they not having getting to the point where they are having suicidal thoughts or even suicidal intent; they are more functional at home and they can then function within a fairly constrained lifestyle, but nevertheless, be far less distressed and have decent relationships with others. BLACK Q. In relation to the matter that his Honour just asked you about, is it more likely than not that if Mr Webb were to undergo a course the regime of which you've just outlined, is it more likely than not that his condition would improve? A. Yes. Q. And on the balance of probabilities, what do you say would be the likely result of the implementation of the system as you have described it? A. Well, it would depend I believe he's developed a probable major ..(not transcribable).. major depressive disorder. As I say, that occurs in about 70% people with PTSD. So, it is difficult to know for sure what sort of state he would be in and how receptive he would be to other sorts of treatments if you successfully treated it as a depressive condition. So, it is a little difficult to prognosticate with certainty about these things. But if you could successfully treat his depression and educate him comprehensively about what he has an involve the family or his partner, then he would be accessible, I think, to a degree to psychological therapies, and his level, I think, his level of anxiety, which I think is extraordinarily high, could come back. He would be far less irritable. I think he would be able to cope better with his close relationships and he'd probably be able to function better in terms of his basic activities, such as being able to, you know, drive without with less anxiety and so on without going through the full list of things." [T133.18 - T135.25]
In his oral evidence, Dr Klug added that, having regard to factors such as the plaintiff's situation having been overshadowed by educational adversity and related factors from his earlier background, this may mean he was less capable of utilising cognitive behavioural techniques which usually involves reading and taking on new information, so that if such problems exist, then the plaintiff may be less amenable to the type of treatment being suggested: T135.35 - T136.6. That is a problem the defendant must accept, as the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406.
Dr Klug added a significant qualifier to his evidence on the possible amelioration of the plaintiff's condition with treatment. That qualifier was that even if the treatment resulted in "some amelioration" in the plaintiff's condition, it remained "very unlikely" that he would be able to re-engage in the workforce in the future: T138.19 - T138.27.
Dr Klug's view which he had expressed to be on the balance of probabilities, to the effect that there were quite good prospects of the plaintiff's depressive symptoms responding to treatment, was in my view, significantly qualified by his comment that "the right clinical environment" was a requirement: T139.18. Dr Klug was uncertain as to whether, in view of the chronicity of the plaintiff's problems, taken together with the plaintiff's background, that the plaintiff would be able to use cognitive behavioural techniques, because of questions of psychological amenability or psychological mindedness: T139.13 - T140.16. The plaintiff's limited amenability to treatment is also a problem that the defendant must accept insofar as it impacts on the assessment of damages: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406.
Dr Klug reiterated his earlier stated view that the plaintiff's recurrent episodes of faecal incontinence were due to panic attacks: T140.18 - T140.30; T141.25. Whilst Dr Klug stated that panic attacks can be "quite amenable to treatment because certain antidepressants can be very good at suppressing autonomic arousal" (T140.39 - T140.41; T141.39), he later qualified the probability of success of that treatment as "speculative": T141.48.
Given the subjective element that is inherent within the discipline of psychiatric assessment (T142.36), Dr Klug was asked to comment on Dr Haik's formulation that the plaintiff had no objective evidence of suffering from a psychiatric disorder. In response, Dr Klug said he found Dr Haik's view to that effect, to be very puzzling. His evidence on that point was as follows: "A. Well, I find it very puzzling, because I think that Mr Webb has a wide array of psychiatric symptoms, and I find it very difficult to reconcile the term "objective evidence" with the psychiatric interview. It would be nice if it were like that. Actually, in medicine generally a clinical examination is broken up into symptoms and signs. So a symptom is something a patient reports, whereas a sign is something that the doctor witnesses on examination. So in physical medicine the patient might complain of abdominal pain and the doctor might find the sign of abdominal tenderness. So that's an example in physical medicine. In psychiatry, the symptoms are generally what one elicits on history taken, whereas the mental state examination is a cross sectional observation of the patient. So it inevitably does involve some symptoms rather than signs, but on a mental state examination one looks at a person's affect for instance, the way he presents so that's a sign; whether he's in clear consciousness or not or whether he is delirious and is unaware of his surroundings or is disoriented, and so on. So, really, the objective aspect of the psychiatric interview is confined to a fair bit of the mental state examination." [T142.41 - T143.8]
On the matter of genuineness or probity of the plaintiff's presentation, Dr Klug was asked to consider Dr Langeluddecke's opinion to the effect that the plaintiff displayed signs of malingering, exaggeration or embellishment. In response, in his oral evidence, Dr Klug indicated that Dr Langeluddecke's cited comment did not accord with his own impression of having seen the plaintiff over a number of years, and on a number of occasions: T143.14 - T143.30. In his report dated 19 July 2017, Dr Klug noted Dr Langeluddecke's qualifying comment (as a psychologist), that it was difficult for her to be definite about a psychiatric diagnosis of the plaintiff's condition: Exhibit "C", Tab 1, p 43.
Dr Klug also confirmed that from the perspective of the respective disciplines of psychiatry and clinical psychology, attributing the motive of malingering to a person, which he was careful to observe was not a diagnostic term, carried a high onus on the accuser, especially where abnormal illness behaviour may at times be mistakenly equated with malingering: T143.32 - T143.48.
I consider that the remarks that are critical of the plaintiff as appearing within the respective opinions of Dr Haik, Dr Schutz and Dr Langeluddecke, stating or implying that the plaintiff was variously, malingering, exaggerating, overstating or embellishing his complaints, must be considered in light of that last cited observation about the existence of a distinct entity of abnormal illness behaviour, as expressed by Dr Klug, noting that those experts relied upon by the defendant did not undertake a differential analysis in relation to those distinctly separate considerations when making their comments and allegations about the plaintiff's motives.
My review of Dr Klug's evidence as a whole reveals no flaws or shortcomings in his reasons or in the factual analysis upon which he based his respective opinions. I therefore conclude that, subject to a review of other relevant opinions and analysis, including the analysis of the opinions relied upon by the defendant, Dr Klug's expressed views are available and open for acceptance.

Dr George's opinions

Dr George carried out an examination of the plaintiff on behalf of the worker's compensation insurer on 20 March 2013, Dr George expressed the opinion that the plaintiff's presentation fulfilled the criteria for making the several psychiatric diagnoses of post-traumatic stress disorder, chronic major depression with anxious mood, in association with chronic pain disorder relating to the right chest wall, and faecal incontinence, with a decreased level of functioning, and with a guarded prognosis: Exhibit "C", Tab 2, pp 48 - 56. Dr George came to those conclusions after a careful review of the plaintiff's history, and after carrying out a mental state examination of the plaintiff. He then stated his cited diagnoses, which were expressed according to DSM-IV criteria. Dr George's report was amply supported by the appropriate level of explanatory reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). His opinions were not challenged through cross-examination, or by any argument raised by the defendant.

Dr Anderson's opinions

Dr Anderson's psychiatric evaluation of the plaintiff was carried out on 14 July 2017, at the request of the solicitor for the worker's compensation insurer. Dr Anderson concluded that the plaintiff's presentation and symptoms fulfilled the DSM-IV TR classification criteria for chronic post-traumatic stress disorder with a major depressive disorder. In stating those views, Dr Anderson expressly agreed with Dr Klug's views: Exhibit "C", Tab 3, pp 57 - 69. Dr Anderson's report dated 14 July 2017 was also appropriately supported by the required level of reasoning: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
The defendant required Dr Anderson for cross-examination on the opinions he had expressed in his report: T145 - T146. Dr Anderson made no diagnostic concessions in his oral evidence. His oral evidence showed no relevant inconsistencies with his written report.
In answers to questions asked of him when he gave his oral evidence, Dr Anderson was asked to consider Dr Langeluddecke's view that the plaintiff "may be overstating emotional and physical complaints": T145.30. In response, he expressed the view that he did not consider Dr Langeluddecke's comment to be applicable to the occasion on which he had assessed the plaintiff: T145.35 - T145.37.
Dr Anderson agreed with the proposition that the plaintiff would benefit from some treatment in the form of seeing a psychiatrist, a psychologist, and taking psychotropic medication, on an out-patient basis most of the time, but allowing for in-patient treatment in a crisis: T145.39 - T145.48. He also considered that the treatment the plaintiff had been having was satisfactory. He said that as the plaintiff's condition had improved to its maximum level of improvement, and as his condition had stabilised, no different form of treatment was required to that which he was receiving: T146.7 - T146.20.

MAS Assessor's opinions

The plaintiff underwent some MAS assessments that were carried out by two assessing psychiatrists: Dr Jones (Exhibit "6", pp 211 - 223) and Dr Prior (Exhibit "E", at Tab 24, pp 562 - 591). Neither of those assessors materially contradicted the opinions of the practitioners who have treated the plaintiff for the post-accident psychiatric illnesses that they had diagnosed in the plaintiff.
The MAS assessment reports were not in the form of compellable expert opinions: Pham v Shui [2006] NSWCA 373, at [90]. Nevertheless, they provided a satisfactory measure of professional confirmation of the opinions of Dr Klug, Dr George, Dr Anderson, and the diagnoses made by the plaintiff's treating practitioners. None of the MAS assessors who had considered the plaintiff's psychiatric state, made any comments in their reports to indicate they supported the views of Dr Haik or Dr Langeluddecke that questioned the genuineness of the plaintiff's complaints.
I now turn to a consideration of the medico-legal reports relied upon by the defendant to question the genuineness of the plaintiff's claims, namely the opinions of Dr O'Neill, Dr Haik, Dr Schutz and Dr Langeluddecke.

Dr O'Neill's opinions

Previous reference has been made to Dr O'Neill's reports and vacillating opinions at sub-paragraphs (92), (185), (195), (210) and (264) of paragraph [98] above, and paragraph [106] above, noting that not all of his reports had been tendered by the defendant.
Dr O'Neill had initially taken the position of rejecting the plaintiff's complaint of persisting chest wall pain as being without a physical basis. He also initially rejected the diagnosis of neuropathic pain.
Dr O'Neill's second report, contrary to his first report, accepted that the plaintiff had neuropathic pain due to damage to one or more intercostal nerves.
In Dr O'Neill's third report he reiterated his first conclusion that the plaintiff did not have neuropathic pain, and raised a possible psychosomatic mechanism. In his fourth report, Dr O'Neill emphasised a psychosomatic element, but interestingly, in comparative contrast to the opinion, of Dr Schutz and Dr Langeluddecke, Dr O'Neill also stressed that he did not see any signs in the plaintiff of obvious embellishment or exaggeration of symptoms: Exhibit "6", p 105.
The various changes that arose in the course of Dr O'Neill's opinions over time, as summarised above, taken together with his admitted error of assumption, as was explained in his report of 24 May 2014, where he said that when he saw the plaintiff on the second occasion he did not realise he had assessed the plaintiff on a previous occasion, as well as doubts over the meaning of his view that the plaintiff's complaint of chest wall pain was a "delayed complaint", lead me to conclude that I should have little confidence in the reliability of his assessments and opinions that purport to contradict the diagnoses made by the practitioners who treated the plaintiff.
The basis of Dr O'Neill's view rejecting a diagnosis of neuropathic pain because the plaintiff had made a delayed complaint is difficult to determine on the state of the evidence. In his first report, dated 11 June 2010 (at Exhibit "6", pp 24 - 25), as I read it, Dr O'Neill summarised the plaintiff's history since the initial hospitalisation.
Dr O'Neill's report (at p 25), dated 11 June 2011, also cited Dr Grassby's 7 February 2008 observation that the plaintiff had become "emotionally unhinged" in relation to his chest wall symptoms, and that there was the clear presence of "marked psychological disturbance", that had worsened. Dr O'Neill at that time considered (at p 27), that the plaintiff's chest pain was "non-anatomical", and because he described it (at Exhibit "6", p 27), as a "delayed complaint", he said it could not be explained on a physical basis.
On the question of the delayed complaint of chest wall pain, Dr O'Neill did not analyse that delay in terms of timing or in terms of the plaintiff's intake of pain killing medications, or of changes in those medications. Unfortunately, the complete hospital admission records and progress notes which underpinned Dr O'Neill's view that there was a delayed complaint of chest wall pain were not tendered in evidence. Therefore the factual context around this point could not be further evaluated to determine whether Dr O'Neill's description of "delayed complaint" was in fact a justified description. Dr O'Neill did not explain the nature or the extent of the delay he had in mind as a distinguishing feature.
Dr O'Neill's 15 June 2010 report did not seek to precisely confine or identify the timing of the onset of the plaintiff's complaints of chest pain: Exhibit "6", pp 23 - 25. It is therefore difficult to understand the basis of his description of the plaintiff's "delayed pain complaint" arising from his laceration of the chest injury, where the delay was thought by Dr O'Neill to indicate the pain could not be explained on a physical basis.
Since Dr O'Neill was not called to give oral evidence, and the defendant cannot point to precisely what he meant by his description "delayed", I do not accept Dr O'Neill's unexplained view on that point. The defendant has failed to discharge its onus of proof on that point: Majkic v Bonnano [2008] NSWCA 253, at [26]; Larson v Commissioner of Police [2004] NSWCA 126, at [48].
Dr O'Neill further argued (at p 27), that the diagnosis of neuropathic pain required an underlying nerve injury, and he considered that if the neuropathy was intercostal, the pain would have been present at the outset, with an "associated paraesthesia which was never the case".
When the structure of Dr O'Neill's report dated 11 June 2010 is examined, he has not recorded a history concerning the precise timing of the onset of the plaintiff's chest wall pain. He summarised the primary treatment records, which were not themselves tendered in evidence, and he then summarised the subsequent treatment records (at pp 23 - 25), but he did not identify the timing of onset of the plaintiff's chest wall pain.
Dr O'Neill (at p 24), cited Dr Kirkby's 24 October 2007 record that the plaintiff "still gets pain and spasms across his upper abdomen, thoracic spine and ribs". That citation implies the plaintiff had complained of chest wall pain for some considerable time by that stage. Dr Mobilia's summary, cited in the seventh quoted paragraph at paragraph [90] above, referred to the plaintiff's early physiotherapy treatments having to be terminated after 6 months post-hospital discharge because of the plaintiff's experience of right-sided chest pain. On 13 August 2007, Dr Grassby noted that the plaintiff was still troubled by pain related to movement and had still not recovered from the effects of the accident, which must be taken to include the effects of the plaintiff's chest wall laceration: Exhibit "D", Tab 20, p 295.
Dr O'Neill's report (at p 25), noted the plaintiff's "current" symptoms, and he stated pain was the "big issue". He went on to identify that pain as a constant "sharp jabbing pain" over the right chest wall, with cramps in that area if he walked more than about 500m.
Dr O'Neill also added from the plaintiff's history, that "there seemed to be different pain" that was induced by "doing too much". That pain was noted (at p 25), to be concentrated in the right chest wall and would "work its way" into the right anterior chest.
It is clear from those descriptions by Dr O'Neill that he was talking about two different reports of pain. He did not identify which one was delayed. As the entire clinical records which might ordinarily have been expected to chart the onset and course of the plaintiff's right-sided chest pain, and in view of the evidence I have cited, I am unable to accept Dr O'Neill's formulation that the plaintiff's chest pain was "delayed" onset.
I therefore do not accept Dr O'Neill's rejection of the neuropathic explanation of the plaintiff's chest was pain. I consider the plaintiff's treating practitioners were, over the course of time, in a far better, consistent, and more advantageous clinical position than he was, to make a reliable diagnosis of the nature of the plaintiff's chest wall pain.

Dr Haik's opinions

Having analysed the opinions of Dr Haik along the lines referred to at paragraphs [51] to [56] above, although his identified reports were, over the plaintiff's objection, admitted to evidence because they had been served in accordance with the rules governing service of reports, and on their face, they were stated to have been made in compliance with the requirements of codes for expert witnesses, in my opinion, on reviewing Dr Haik's reports, his stated compliance with those codes was only a ritualistic recital of compliance with those requirements, rather than an actual compliance.
Dr Haik's reports, when analysed as to the reasoning which based them, do not reveal a true compliance with those rules on critical matters of disputed fact and opinion. I now turn to each of Dr Haik's respective reports to outline my reasons for that view.
Dr Haik's first report, dated 9 June 2009, in the first paragraph, stated that it was prepared in accordance with "the Expert Witness Code of Conduct contained in Schedule K, Part 36, Rule 13c(1) and Part 39, Rule 2(1) of the Supreme Court of NSW" (sic). It seems that when Dr Haik was initially retained, he was not made aware of the existence of the then current provisions of r 31.27 of the Uniform Civil Procedure Rules 2005, or Sch 7 to the Civil Procedure Act 2005, as being the applicable Expert Witness Code of Conduct, and the standard to be applied to the task that he was asked to undertake when he prepared that first report.
In preparing his first report, Dr Haik confirmed that, in addition to the matters of history he obtained from the plaintiff in his first consultation, he also had available to him for analysis, ambulance reports, a Personal Claim Form, POW Hospital clinical notes, Dr Gutierrez's report dated 9 June 2007, and Dr Grassby's report dated 16 October 2007. None of those materials questioned the genuineness of the plaintiff's claims.
Dr Haik stated (at p 2), that the plaintiff was "almost constantly" holding his right chest with his left hand, and behaving "as if he episodically suffered spasms of right chest pain in the region of widespread pale scars". This was in the context that Dr Haik had obtained a history of the plaintiff having sustained severe lacerations to the chest in the accident. The first report of Dr Haik does not indicate whether, in that cited context, Dr Haik proceeded to ask the plaintiff if he was in fact experiencing spasms or pain in that area at the time he made those observations, and if so, to what degree of intensity the plaintiff was experiencing those problems, and what, if anything, had triggered those problems he indicated that he was experiencing.
Dr Haik otherwise described the plaintiff (at p 2), as a co-operative historian. Therefore, there seemed to have been no apparent reason at that time, for Dr Haik to refrain from asking the plaintiff questions along the lines outlined in the preceding paragraph. Dr Haik also (at p 2), recorded the doubting comment that although the plaintiff was "despondent while explaining his travail, his attitude normalised while he discussed unrelated and non-emotive topics". Dr Haik's report gives no indication as to whether he sought an explanatory comment from the plaintiff on that matter before expressing that cited view.
In that context, I consider that Dr Haik's reference to the plaintiff's "travail" to be vague, non-specific, and to a degree, pejorative, implying that the plaintiff was making an abnormally laborious effort to explain his problems when recounting them to Dr Haik in the course of that examination.
In making that observation in his psychiatric assessment report, Dr Haik did not identify, for the purpose of reasonable differentiation or exclusion, any potentially non-critical alternative explanations that might possibly be available for the plaintiff's described physical complaints, for example, Dr Klug's reference to abnormal illness behaviour. Given that Dr Haik did not conduct a detailed physical examination of the plaintiff, when analysing his report, it is difficult to see a reasoned justification for his implied criticism of the nature or the extent of the plaintiff's physical complaints.
In Dr Haik's above cited formulation, in which he was plainly critical of the plaintiff (at pp 5 - 6), he nevertheless acknowledged the plaintiff had sustained relatively serious injuries in the collision. Dr Haik then proceeded to review the Dubbo and Prince of Wales Hospital Notes which gave some detail of the plaintiff's initial treatment at those places. After identifying (at p 6), the plaintiff's complaints of chest pain and emotional suffering, Dr Haik then took what I consider to be an unequivocally sceptical, and in my view, difficult to justify, analytical position on those matters.
Dr Haik's scepticism emerged in his first report, as follows: 1. Dr Haik stated: "It might be argued by some that Mr Webb suffers from Pain Disorder." Whilst identifying the DSM-IV definition of the condition of pain disorder "as pain in one or more anatomical sites as the predominant clinical focus and is of sufficient severity to warrant clinical attention; it causes clinically significant distress or impairment in social occupational or other important areas of functioning; psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain; and the symptom or deficit is not intentionally produced or feigned". In identifying the argument in favour of a diagnosis of a Pain Disorder, Dr Haik did not appear to go on to consider the physical bases of the plaintiff's complaints of pain, as has been described, by the Pain Clinic, on 27 June 2008, as neuropathic chest wall pain: Exhibit "C", Tab 11, p 121 and Tab 12, pp 123 - 128. The Pain Clinic assessment was generally consistent with Dr Hillier's clinical view the plaintiff had intercostal pain (Exhibit "2", p 279), and with Dr Todhunter's views as a pain specialist (Exhibit "C", Tab 15, p 131; Exhibit "D", Tab 21, p 425), and with Dr Boyce's views as a consultant neurologist (Exhibit "3"), and Dr O'Neill's final neurological view that the plaintiff was not exaggerating or embellishing his account: Exhibit "6". Those matters, and the plaintiff's consistent recorded complaints of chest wall pain over the course of time since the accident, lead me to the view that Dr Haik's scepticism about the plaintiff's complaint of pain should be substantially discounted as representing an incomplete factual analysis, especially having regard to the detailed content of the other acceptable medical evidence that I have cited; 2. Dr Haik then argued, somewhat speculatively, in my view, that: "Some might suggest the 'psychological factors' are the lifetime difficulties that Mr Webb said he has endured. However, such psychological factors are not of an acute or even of sub-acute nature but have been present all of his life. Implausibly, it might then be argued that any traumatic injury Mr Webb might have experienced would have led to a similar gross disability as a result of his past psychological experiences. It is similarly implausible to suggest his fiancee's pregnancy is a psychological factor, a psychosocial stressor that prolongs his illness: yet he had not been able to resume employment before she fell pregnant." At this point it must be observed that these insinuations of implausibility raised by Dr Haik were no more than querulent propositions, speculative observations, or musings. Having raised those matters, that Dr Haik did not then proceed to develop or explore the factual basis for such propositions, and he did not then proceed to seek to resolve such questions by a process of transparent reasoning that, in this context, would ordinarily be expected to lead to an adequately reasoned opinion on those matters of speculation. Dr Haik's cited observations under present review might have carried some weight if there was evidence that he had put the substance of those querulent views to the plaintiff for his comment. Accordingly, any pre-accident pre-dispositions, disadvantages or vulnerabilities the plaintiff might have had from his earlier life are matters the defendant must accept in a damages assessment: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406; 3. Dr Haik (at pp 7 - 8), flatly rejected the proposition that the plaintiff showed evidence of a depressive disorder. On examining Dr Haik's reasoning, that rejection appears to have been on the somewhat over-simplistic basis that the plaintiff had not responded to "the long-term and substantial doses of the antidepressant medication he takes". I consider that rejection by Dr Haik was superficial and unreliable as it was not adequately reasoned. In that context, Dr Haik did not go on to consider the possibility that the plaintiff's depression might have been of such a character that it was not amenable to amelioration by the prescribed anti-depressant medication that he had been given. Significantly, Dr Haik used the present tense "takes" to describe the plaintiff's medication regime. Dr Haik's cited opinion appears to have failed to take into account the factual history that he obtained from the plaintiff (at p 3) of having ceased the use of the addictive opioid analgesic Oxycontin (40mg/day) and of having reduced his intake of the addictive analgesic Endone from 15mg per day to 5mg, 3 times per week, on advice from the Pain Clinic, which coincided with the plaintiff's experience of worsening pain. Dr Haik did not explore, explain, or seek to rebut, the logic of an apparent association between the plaintiff's decreased intake of analgesic medication, the complaint of worsening pain, and the level of the plaintiff's described depression, where on an initial analysis, a most probable association between those events was not inherently implausible and was not dependent upon expert evidence: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, at pp 563 - 564. The only detailed mention Dr Haik made of the plaintiff's anti-depressant medication (at p 4) was Efexor, 300mg a day. His report is silent on the question of over what period the plaintiff had been on that dose of antidepressant medication. Dr Haik's report provides no discussion on whether an intake of 300mg per day of that medication should be regarded as a low, medium, high or substantial dose. Nor did he discuss or provide an opinion on whether it was possible that such doses of anti-depressant medication could nevertheless be acceptably or recognisably associated with a failure to respond to such treatment. Such matters should not be left to be analysed by a process of speculative inference. It follows, that Dr Haik's anti-depressant medication argument as a basis for rejecting the plaintiff's complaint of a depressive illness must be seen to be invalid and inadequately reasoned, which in my view, renders it an unreliable basis for the acceptance of Dr Haik's criticisms of the plaintiff or his motives.
I therefore conclude that Dr Haik's opinion in his first report (at p 8), which stated that the plaintiff "does not have a psychiatric disorder" was unsupported by adequate cogent reasons to render it to be a reliable opinion for the purpose of resolving issues calling for decision in these proceedings: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). It is an oracular statement that cannot be reasonably accepted as representing an appropriately or reliably expressed expert opinion: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93].
I therefore reject Dr Haik's opinions critical of the plaintiff as set out in his first report dated 9 June 2009, where those opinions are contradicted by appropriately reasoned opinions from other experts who have complied with the rules for providing expert opinions, and which are also supported by the clinical diagnoses of the plaintiff's treating practitioners on the basis of the facts they had before them.
In his second report, dated 5 October 2010, Dr Haik stated (at p 28), that this particular report on the plaintiff, was prepared in accordance with the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules. It is therefore convenient to identify and to analyse Dr Haik's opinion from the synopsis of that second report (at p 28), and which was repeated later in that report (at pp 34 - 35), as follows: 1. Dr Haik stated that there was no evidence that the plaintiff suffers from a psychiatric disorder, and he went on to state his view that there was now a serious concern that the plaintiff's presentation may be deliberately driven by an aspiration for external incentives or secondary gain by manipulative means: (pp 28, 31). When that aspect of Dr Haik's second report is analysed, it appears that he had reached that adverse view of the plaintiff by drawing conclusions from the video surveillance material, and from comparing the plaintiff's behaviour at interview with those observations. Without specific evidence from Dr Haik that for the purpose of undertaking that comparative exercise, he had drawn the plaintiff's attention to such adverse views in order to give him the fair opportunity to comment, I am not prepared to find that he did so, particularly where the plaintiff's evidence to the contrary (at T80.31 - T80.35), was not inherently improbable, and should therefore be accepted. Furthermore, Dr Haik's views were not expressed in terms that could reasonably be said to amount to a concluded view. I read his words "it appears even more certain" to be a significant tentative qualification to his views, which, in terms of acceptability, is well below the standard expected of a properly reasoned opinion that complies with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); 2. In his second report, Dr Haik referred to his earlier assessment (at p 34), and he also referred to only 3 video segments taken over a 6 month time span. His report did not identify the dates of that surveillance material other than to identify the period between March and September 2010. In light of the defendant's concessions made during final submissions as to what the surveillance material does not show, as I have recorded at paragraph [32] above, I do not consider that Dr Haik's commentary to the effect that the video shows that "Mr Webb was seen to move effortlessly, to drive with ease, to manage his child in and out of the vehicle without restriction and to carry him in both arms, to hang out the laundry, to carry shopping bags in and out of the vehicle and to exhibit no evidence of any limitation or express not (sic) expressions of discomfort…" rebuts the diagnosis of the plaintiff being affected by pain disorder, or post-traumatic stress disorder, or depression, or adjustment disorder, or panic attacks. 3. Although Dr Haik's second report again concluded (at p 31), that the plaintiff had no evidence of a psychiatric disorder, he did not provide any supporting analysis that came to grips with or argued against the clinical opinions of Dr Burek and Professor Nicholas, where such views were contrary to his own views, and where their respective reports dated 31 January 2008 and 16 May 2009, had been provided to him for his review. Instead, Dr Haik further stated (at p 35): "In my 2009 report was an explanation why the differential diagnoses of Posttraumatic Stress Disorder and Pain Disorder were inappropriate as an explanation for Mr Webb's complaints and disability. Today, there was no evidence for a diagnosis of clinical depression. Viewing the video surveillance taken on 3 occasions over a 6-month time span, Mr Webb was seen to move effortlessly, to drive with ease, to manage his child in and out of the vehicle without restriction and to carry him in both arms, to hang out the laundry, to carry shopping bags in and out of the vehicle and to exhibit no evidence of any limitation or express not (sic) expressions of discomfort. My previous conclusion, that Mr Webb has no evidence of a psychiatric disorder, remains unchanged. It appears even more certain, when comparing his behaviour at interview today with his behaviour on video, that Mr Webb is manipulating his situation of alleged compensable injury for secondary gain."
In my view, the above cited conclusions expressed by Dr Haik are problematic for several reasons. First, there is no evidence that he gave the plaintiff the procedurally fair opportunity to comment on the adverse views and interpretations that he had formed of his presentation and problems following a viewing of the video surveillance material he had been asked to review. Secondly, the cited conclusions on the video surveillance material do not suggest the absence of a psychiatric disorder, as was conceded by the defendant: T164.22 - T164.31. Thirdly, Dr Haik's adoption of, or adherence to, his earlier conclusions, which I consider to be flawed as being non-compliant with the requirements of UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c), revealed the continuation of that flawed process.
Dr Haik's third report on the plaintiff, which was dated 15 October 2013, also certified an acknowledgment of the Expert Witness Code of Conduct, comprising Sch 7 of the Uniform Civil Procedure Rules. By that time, he had available to him for his consideration, material comprising Dr Voss' report dated 14 April 2008, a series of Dr Klug's reports dated 14 July 2008, 11 August 2009 and 16 July 2012, as well as Professor Nicholas' Pain Clinic assessment dated 16 May 2009, reports from Dr Todhunter dated 12 August 2010, and Dr Geddes' report dated 16 January 2012. He also had a series of the plaintiff's workcover certificates for the period 2009 - 2010. It is not clear why he was not provided with the further series of those certificates after 2010, which the evidence reveals to have been current up until the time of his 15 October 2013 examination of the plaintiff.
In his third evaluation of the plaintiff, (at p 71), Dr Haik focussed upon what he described as the plaintiff's "dramatisation of his distress from pain", as well as the plaintiff's history of coughing, and the absence of any observed tremor of his arms. As Dr Haik's report gives no indication that he had provided the plaintiff with a fair opportunity to comment on such views before he included them in his report as his opinion, I consider that Dr Haik's cited comments that are critical of the plaintiff should be substantially discounted. There is no evidence that the cited "dramatisation" was not a feature of the plaintiff's psychiatric disorders either individually or in combination. There was no evidence that Dr Haik questioned the plaintiff for an explanation or reconciliation about the apparent absence of a cough, or a tremor. There was no evidence that in the course of the matters observed by Dr Haik, the plaintiff had engaged in any activity that was likely to trigger or produce coughing, or a tremor in his affected arm.
After reviewing his earlier synopses (at p 74), in which he variously stated, without adequate reasons in my view, that the plaintiff's "history is not consistent with PTSD", and that there was "no evidence [that the plaintiff] suffers from a psychiatric disorder", and where he was asserting a concern over his perception the plaintiff was actuated by a deliberate aspiration for "external incentives", Dr Haik updated his formulation to state that: "As outlined in the 2009 Synopsis (para 4.1 above) and reinforced in the 2010 Synopsis (para 4.2), Mr Webb does not exhibit a psychiatric disorder. There is ample evidence that he will claim whatever is required to obtain reparation for his difficult pre-accident life, initially recorded during his schooling. His employment history suggests a failure to find a satisfying vocation and nothing has changed. He and his partner have found a path where she has become the primary breadwinner while Mr Webb accommodates almost all other needs except cooking. To pursue this end he must justify his avoidance of paid employment and he does so with obscure complaints that cannot be explained from a medical perspective - such as loss of a sense to begin and end defaecation (sic), a quite bizarre symptom. In the same category is the allegedly relentless coughing, the seeking of a rope for self harm reported to Dr Klug, and many other bizarre manifestations of conscious mischief and feigned disablement. Following our third meeting, I could not be persuaded that Mr Webb has a psychiatric disorder. It is abundantly clear that he has a repertoire of complaints that might provide him with financial reparation so as to correct the disadvantage he has perceived in his life to date. He now has a home-husband role due to his partner's facility in the workplace and their income is considerable. His need to work for an income is minimal and this might explain the failure to pursue the advice of various specialists in regards (sic) to exercise and sedentary employment (paras 3.3, 3.4)." [Exhibit "6", p 75]
In my assessment, Dr Haik has not identified, with sufficient particularity, the "ample evidence" that he considered to have justified him attributing to the plaintiff the motive of secondary gain, which he referred to as "feigned disablement". Those statements by him were made in non-compliance with the clear obligations of an expert witness: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). There is no evidence that Dr Haik had taken the procedurally fair opportunity to explore with the plaintiff the historical events that led to the plaintiff's attempt at self-harm so as to justify Dr Haik's description of this event as being one of "many other bizarre manifestations or conscious mischief and feigned disablement". In that regard, it is significant to observe that Dr Klug stated, of that view expressed by Dr Haik, without challenge, that he found it difficult to understand how Dr Haik came to the view that the plaintiff had no psychiatric disorder, and where Dr Haik implied the plaintiff was malingering: Exhibit "C", Tab 1, pp 43 - 44. In that dispute, I prefer and accept Dr Klug's more reasoned view to the contrary of that expressed by Dr Haik.
I therefore reject Dr Haik's conflated and pejorative formulation as cited in the preceding paragraph as being speculative, and because it is unfounded on the evidence. It was a conclusion that he apparently reached without giving due consideration to what might appear, according to Dr Klug's oral evidence, to be a reasonable, alternative, and more benign explanation, namely, abnormal illness behaviour.
Perhaps Dr Haik's cited views which were critical of the plaintiff were formed on the basis of his only limited approach to the manner in which he questioned the plaintiff, which he revealed (at p 75), as: "One was cautious not to lead him with direct questions such as 'do you have difficulties with car travel' or 'are you suicidal' or do you have flashbacks'.".
I consider that Dr Haik's "cautious" approach as cited in the preceding paragraph, revealed unreasonable limitations that were inherent in his examination of the plaintiff, and which I consider may have afflicted the reliability of his conclusions, which were expressed in terms that, on my analysis, simply did not comply with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
Accordingly, I find myself unable to accept Dr Haik's opinions where they are shown to have been inadequately reasoned, and where they are in conflict with the appropriately reasoned conclusions of other experts to whom I have referred, and whose opinions were acceptably given, in conformity with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
I have therefore concluded that Dr Haik's opinions that are critical of the plaintiff, and which impute to him the motive of secondary gain, as has been insinuated by Dr Haik, should be discounted, and rejected, as being no more than unsubstantiated argument, that does not rise above mere speculation and conjecture, and which is not supported by the required level of reasoning for his views to be characterised as expert opinions: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, at [8]; UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
To the extent that Dr Haik has expressed medical opinions about the plaintiff's claimed disabilities within the sphere of his qualifications as a psychiatrist, those opinions stand to be comparatively evaluated alongside the opposing body of psychiatric opinion that has been appropriately reasoned, a task to which I shall return in due course after analysing the opinions of Dr Schutz and Dr Langeluddecke, and when identifying my findings on the nature of the plaintiff's continuing disabilities.

Dr Schutz's opinions

I now turn to consider the reports of Dr Schutz. Previous reference has been made to Dr Schutz's reports at paragraphs [57] - [67] above, and sub-paragraphs (76), (100), (152), (153) and (262) of paragraph [98] above.
Dr Schutz prepared a total of 7 reports in this case: 15 June 2009 (x 2): Exhibit "6", pp 9 - 19, 20 - 22; 18 October 2010: Exhibit "6", pp 36 - 47; 27 August 2012 (x 2): Exhibit "6", pp 48 - 50, pp 51 - 65; and 28 January 2017 (x 2): Exhibit "6", pp 106 - 128, pp 129 - 130.
In the course of the hearing it became apparent that some of Dr Schutz's reports did not contain the obligatory acknowledgment by him of the Expert Witness Code of Conduct: UCPR; Sch 7.
As a result of the absence of that acknowledgment being identified and ventilated in the course of the hearing, on the third day of the trial, the defendant subsequently obtained an affidavit from Dr Schutz, which was affirmed on 31 January 2018. Dr Schutz's affidavit stated that his reports in this case, which omitted an acknowledgment of the Expert Witness Code of Conduct, had in fact been prepared in accordance with that Code of Conduct. That is a question of fact requiring determination.
The purpose of the defendant obtaining that affidavit from Dr Schutz was so that the defendant could seek to obtain leave, pursuant to UCPR r 31.23(3), to enable it to rely upon the non-compliant reports in question. Any leave granted pursuant to that Rule required the exercise of discretion.
In support of that application the defendant placed reliance upon an unreported decision of the Supreme Court, in which an after-the-event acknowledgment by an expert had been accepted as relating back to the time when the report in question had been prepared: Barak Pty Ltd v WTH Pty Limited Trading as Avis Australia, Barrett J, Supreme Court, unreported, 22 July 2002.
In my view, that cited decision, which preceded the advent of the Uniform Civil Procedure Rules 2005, is distinguishable from the present case, on the basis of the different expert witness regime that applied at the time.
Furthermore, the exercise of a discretion of the kind under present consideration, should not be fettered by decisions made in other cases based on different factual circumstances. It must be exercised according to a consideration of the facts and the demands of the particular case at hand.
In my view, it is unsatisfactory for an after-the-event acknowledgment of the kind that Dr Schutz has provided in this case, to be presented during the hearing, without a co-extensive and satisfactorily detailed explanation, in transparent terms, setting out the chain of events and circumstances that led to Dr Schutz proffering his explanation for the omitted prior acknowledgment of the Expert Witness Code of Conduct.
I consider Dr Schutz's cited explanation in this case should be seen to be inherently unsatisfactory because it did not provide, and it was not accompanied by, a transparent explanation in those terms, either from him or from the defendant's solicitor who had retained him, as to the circumstances in which the omission of the acknowledgment in question, was drawn to the attention of Dr Schutz.
There is no evidence of the nature and the content of the request made by the defendant's solicitor to Dr Schutz, which then resulted in the procurement of Dr Schutz's affidavit, after he had been asked to review his otherwise non-compliant reports. In such circumstances, that process must be seen to be transparent. In this instance, it is not, and therefore no positive inferences should be drawn where there is no proper basis in the evidence, other than speculation, for doing so.
Accordingly, in the course of the trial, I indicated my view that I considered Dr Schutz's non-compliant reports should be admitted into evidence conditionally, for the limited purpose of identifying the various factual matters of history that he had obtained from the plaintiff, as well as his historical findings on examination, when he examined the plaintiff: s 135 of the Evidence Act 1995.
To allow for the possibility that my decision in that regard may be determined on appeal to be in error, I will undertake an overall comparative evaluation of the opinions expressed by Dr Schutz when viewed against the other medical and medico-legal evidence. In those circumstances, it remains open to determine whether or not it was truly apparent, as Dr Schutz's affidavit states, that, despite Dr Schutz's failure to acknowledge the Expert Witness Code of Conduct, any particular opinions of relevance in his report, should nevertheless be taken to have been given in effective compliance with that Code: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). That analysis of his reports now follows.
The salient feature of Dr Schutz's first report, that is, his main report, dated 15 June 2009 (Exhibit "6", pp 9 - 19), is that, on a factual basis, he found no inconsistencies between the plaintiff's complaint that at times, he experiences intense and persistent pain in his right chest wall, and the injuries the plaintiff sustained in the accident, and also, that no inconsistencies were found between those symptoms and the accident-related treatment the plaintiff received in the form of the insertion of an intercostal drainage catheter tube into his right chest wall to treat his traumatic haemothorax. This was in circumstances where there were a number of potential and identifiable causes postulated for the pain described by the plaintiff: Exhibit "6", p 15.
It is not clear from the evidence as to the nature and the extent of the clinical records that were made available to Dr Schutz for the purpose of his first report.
On a careful review of Dr Schutz's opinions concerning potential causative mechanisms for the plaintiff's chest wall pain, the postulated mechanism of a possible rib fracture can be safely excluded as inapplicable, because subsequent investigations have revealed there was no evidence of rib fractures, although chest wall trauma and lacerations were acknowledged. However, the other possible mechanisms identified in the evidence, namely the region of the lacerations being hypersensitive as a result of the lacerations, and the consequences of the siting of the intercostal catheter drainage, remain otherwise plausible and reasonable explanations.
In my assessment, that aspect of Dr Schutz's opinion has been adequately reasoned as to a range of possible explanations, and should be seen as being in effective compliance with UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).
At this point it is relevant to note that Dr Schutz did not raise or address the possibility of one of Dr O'Neill's initial explanations being applicable, namely the mechanism of localised neuropathic pain arising from damage to one or more right-sided intercostal nerves, or possible soft tissue injuries to the right lateral chest wall (Exhibit "6", p 79), or Dr Boyce's view, namely the mechanism of intercostal neuralgia (Exhibit "3", p 6), or whether the plaintiff could have had a peripheral nerve neuroma following the laceration, which was mentioned as a possibility for exclusion, but not further discussed: Exhibit "6", p 17.
On a careful evaluation of the second of Dr Schutz's two reports, dated 15 June 2009 (Exhibit "6", pp 20 - 22), I have ultimately concluded that the absence of an acknowledgment by Dr Schutz of the Expert Witness Code of Conduct has no relevance to any issue that I have to decide. I considered that to be so because the second of those reports relates solely to Dr Schutz's reasons for ascribing to the plaintiff, an albeit artificial whole person total impairment of 17 per cent: Exhibit "6", p 21. Such absence may therefore be overlooked in that instance.
Dr Schutz's third report, dated 18 October 2010 (Exhibit "6", pp 36 - 47), appeared to contradict Dr O'Neill's 11 June 2010 opinion (at p 27), to the effect that there was no physical basis upon which to explain the intermittent shake in the plaintiff's right arm. Dr Schutz's apparent contrary view to that opinion was that the plaintiff's "reduced power of movements caused in the right arm [was] caused by pain in the right chest-wall". This was noted by Dr Schutz to be accompanied by reduced muscle bulk in the right upper arm and forearm when compared to the left arm: Exhibit "6", p 39. The matter of the plaintiff's right hand and arm tremor is a question to be decided in identifying the plaintiff's ongoing disabilities.
Dr Schutz's comment in his third report (at Exhibit "6", p 43), where he stated there was no evidence of a problem specifically involving either of the plaintiff's arms was based on Dr Schutz's observation and interpretation of video surveillance material. However, there is no evidence that Dr Schutz put that specific observation or interpretation to the plaintiff for the plaintiff to comment on his view in that regard before expressing his opinion about that particular of claimed disability.
Dr Schutz's third report recorded (at pp 38 and 42), the same basic findings that he had made on his first examination of the plaintiff, as stated in his first report dated 15 June 2009. Dr Schutz's evaluation resulted in him "strongly" raising the suggestion (at p 43), based on his interpretation of the evidence within the 4 DVDs that had been shown to him, that the plaintiff's reported symptoms concerning a tendency for intense right chest wall pain, were "overstated".
That was an important diagnostic conclusion made by Dr Schutz that must be considered as to its factual basis and according to the reasoning in support of that view.
In that third report Dr Schutz (at p 43), identified the basis for his opinion that the plaintiff was overstating his problems. The first basis was, the DVD observations that he made of the plaintiff, which were of relatively minor every day activities, and which were observed by Dr Schutz to be normal; secondly, he considered that there was no evidence in that video surveillance material of the plaintiff coughing; and thirdly, the plaintiff had earlier told Dr Schutz that he had "great difficulty" in doing some of the activities, and "could not do" some of them: Exhibit "6", p 43.
The inherent difficulty with the acceptability of those reasons is that there is no evidence within Dr Schutz's third report to demonstrate that he had put specific or particular aspects of his DVD observations and interpretations to the plaintiff to give him a fair opportunity to comment on those adverse views that had been formed by Dr Schutz.
In analysing those respective factors arising from Dr Schutz's third report, in terms of a credit evaluation of the plaintiff's evidence, the following propositions emerge: 1. Dr Schutz's statement (at p 43), that there is "no evidence" of an abnormality of the plaintiff's cervical spine, when properly understood, was a statement referring to observable or detectable physical evidence. Dr Schutz's "no evidence" statement appeared internally inconsistent with other aspects of his report, which (at p 38), referred to a reported symptom of discomfort to the left side of the plaintiff's neck, and where a restriction of movement in the neck was demonstrated by the plaintiff. In my opinion, those complaints made by the plaintiff constituted relevant evidence, and were apparently discounted by Dr Schutz. Nevertheless, they comprised relevant evidence of an abnormality that needed to be included in a reasoned analysis by an expert witness. Perhaps Dr Schutz intended to say there was no objective evidence of neck pain, but he did not say so. In the circumstances, without having heard oral explanatory evidence from him on that point, I am not prepared to infer that he was referring only to objective evidence when he referred to "no evidence" of abnormality of the plaintiff's cervical spine. It seems that Dr Schutz took that view (at p 38), because there was a discrepancy between the plaintiff's restricted neck movements on examination, when compared to subsequent normal spontaneous movements. The difficulty with relying upon such comments in relation to a credit analysis in those circumstances, is that the plaintiff should have been given the fair opportunity to comment on such observations and interpretations made by Dr Schutz, and Dr Schutz should have provided some commentary of his own to, in effect, show there was a relevant equivalence in the plaintiff's neck movements on those two very different occasions. In my view, the absence of a commentary from Dr Schutz along those lines therefore indicates that the defendant has not discharged the onus of proof on that credit issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]; 2. Dr Schutz appears to have formed an adverse view of the plaintiff's credit, referring (at p 43), to "a significant discrepancy between the [plaintiff's] stated level of pain and frequency of coughing compared with that demonstrated during the examination on this and the previous assessment". He appears to have based that subjective view or interpretation on an evaluation of what he interpreted from the video surveillance material. His interpretation of that material (at p 47), was that there was "evidence of significant embellishment and exaggeration during the examination". In that regard, Dr Schutz referred to "marked contrast the DVD observations showed", which he considered "was very significant [and] markedly different to usual at the time of examination which seems very unlikely". That criticism must be seen to be unfair to the plaintiff in circumstances where he was not given the fair opportunity to comment upon Dr Schutz's interpretation. It is no answer to argue that Dr Schutz's views were not the subject of challenge through cross-examination. His expressed views in that regard either stand or fall according to an evaluation of the kind I have here described in relation to his proffered reasons. In my view, Dr Schutz's comments do not constitute sufficient proof of the proposition that there was "significant embellishment and exaggeration during the examination". For that conclusion to reasonably apply, in addition to the plaintiff being given a fair opportunity to comment, there must be shown to have been some factual equivalence in relevant and specific details as to what Dr Schutz saw of the plaintiff in the course of his examination of the plaintiff, and what he saw of the plaintiff on the video surveillance footage. The defendant has not discharged its onus of introducing that evidence: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
I therefore do not accept Dr Schutz's third report dated 18 October 2010, as comprising satisfactory evidence that the plaintiff has embellished or exaggerated his post-accident complaints to Dr Schutz, as Dr Schutz has stated.
Dr Schutz's fourth report, which is the shortest of his two reports dated 17 August 2012, was based on his re-examination of the plaintiff on 17 August 2012. For this further examination of the plaintiff, Dr Schutz was given an additional 3 DVDs containing further video surveillance material, which Dr Schutz reported (at p 49), as showing the plaintiff "performing normal activities with no signs of any symptom or restriction": Exhibit "6", pp 48 - 65. Dr Schutz concluded (at pp 49 - 50), there was "a gross inconsistency and, in all the circumstances, I believe evidence of significant voluntary exaggeration". Dr Schutz stated that this indicated to him that it was not possible to accurately determine whether the plaintiff had any residual symptoms, and whether there was any basis for restriction in his work activities in the future. That report by Dr Schutz did not acknowledge the Expert Witness Code of Conduct. It did not indicate that Dr Schutz had in fact shown the plaintiff the relevant parts of the footage for his comment on the specific matters which Dr Schutz considered to amount to "gross inconsistency". The general matters Dr Schutz had seen on the video surveillance footage were not the subject of an explanation by Dr Schutz to indicate that what he saw of the plaintiff on the film was to be considered as factually equivalent to the movements and the behaviour of the plaintiff as he saw it in his examination of the plaintiff on 17 August 2012. For example, the segment referred to by Dr Schutz (at p 49), in which he described the plaintiff lifting a child, was not suggested by Dr Schutz to have been replicated in the course of his examination of the plaintiff in his consulting room. Dr Schutz's commentary must therefore be seen to be unfair, and inadequately explained: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). This is so particularly where the plaintiff has not denied that he could lift his child. His complaint was that this was not comfortable for him to do so: T81.12. The video surveillance material does not relevantly refute the plaintiff's account of such difficulty.
Dr Schutz's fifth report, the longer of his two reports dated 27 August 2012, acknowledged the Expert Witness Code of Conduct: Exhibit "6", pp 51 - 65.
In that fifth report (at p 52), Dr Schutz observed that the plaintiff had not previously mentioned to him the complaint of faecal incontinence. There is no evidence that Dr Schutz had ever beforehand asked the plaintiff a question directed at eliciting that complaint. If the defendant wanted to rely upon that comment by Dr Schutz as a basis for a credit finding against the plaintiff, it was incumbent on the defendant to introduce evidence from Dr Schutz on that particular matter in order to discharge its onus in that regard. The defendant did not do so: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
In that fifth report, Dr Schutz stated (at p 60), that the plaintiff "appears to be engaging in a range of normal activities" with his "reported symptoms and restrictions … [being] … in excess of what would be anticipated". That opinion does not comply with the requirements of UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c) because Dr Schutz did not explain the range of "what would be anticipated" in the way of symptoms in the circumstances, so that his view of what was in "excess" could be properly understood and evaluated in this context. I therefore considered his opinion in that regard to be unreliable on account of an insufficiency of supporting reasons.
Dr Schutz's comment (at p 61), that the plaintiff had no evidence of an abnormality of the cervical spine was inconsistent with his record (at p 56), that the plaintiff had symptoms in the paravertebral muscle region of his neck, which in ordinary terms, must be understood to be an abnormality of which the plaintiff either complained or demonstrated. Dr Schutz said this was unrelated but he did not adequately explain why he held that view. Again, perhaps Dr Schutz meant to refer to an absence of objective evidence. Even so, the exclusion of the plaintiff's subjective complaints is a self-selected process undertaken by Dr Schutz that meant that he considered only part of the evidence on the point. To that extent, his analysis was incomplete. In contrast, my task is to consider all of the evidence, including the plaintiff's subjective evidence and descriptions, and to assess it for credibility and reliability.
Dr Schutz's statement (at p 61), that there was no evidence of an injury to the cervical spine is difficult to evaluate because the admission and progress notes from the plaintiff's primary hospital admission were not tendered in evidence by either party. This is perhaps an unimportant point.
More relevantly, Dr Schutz's view (at p 65), to the effect that he considered the plaintiff to be voluntarily exaggerating or embellishing his complaints, must be seen to be an unreliable opinion. This is so because, apart from Dr Schutz's generalised statements, there was no adequately identified or reasoned basis for such conclusions. For example, where (at p 59), Dr Schutz sought to draw a comparison between the plaintiff coughing and holding his chest in the course of the consultation on 17 August 2012, and the apparent absence of such activity in the portions of the video surveillance evidence to which he referred, where the plaintiff was seen washing his vehicle, an activity he did not claim to be beyond his ability, without more, that comparison has little probative value. If for example, the events were relatively contemporaneous in time, and the conditions similar, those factors may have been influential on determining the extent of the conclusions that could be drawn from this aspect of Dr Schutz's evidence of his observations and interpretation of the video surveillance material.
The probative value of Dr Schutz's conclusions is also somewhat diminished given that his cited comments do not appear to take into account the history he obtained from the plaintiff on 17 August 2012 (at p 53), where the plaintiff told him that he is "learning to deal with" the chest wall pain and his episodic coughing. Dr Schutz's commentary may have had some more persuasive power on that point if there was evidence that he had brought the specific content of the video surveillance material to the attention of the plaintiff on that topic, and his interpretation, to provide an opportunity for comment, just as would be expected to occur in the course of cross-examination, to elicit an explanation on the matter of his particular observations to which he had attached significance for the formation of his opinion that the plaintiff was either exaggerating or embellishing his complaints on a conscious basis.
Serious allegations of that kind, which are tantamount to alleging the plaintiff engaged in fraudulent behaviour, for satisfactory proof, requires something more than Dr Schutz's simplistic commentary, which I considered to have operated unfairly against the plaintiff: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. A reasonable starting point would have been for Dr Schutz to offer the plaintiff a fair opportunity for particular comment on specific activities as seen on the video footage at the time of Dr Schutz's examination, because by then, he had formed his tentative views on the video surveillance material. Instead, Dr Schutz left that discussion with the plaintiff in general and unparticularised terms.
Accordingly, I am not persuaded that Dr Schutz's comments (at p 65), asserting that the plaintiff engaged in voluntary exaggeration or embellishment of symptoms, are justified by the circumstances in which Dr Schutz arrived at those views. This is so especially where (at p 64), in his report under present review, Dr Schutz conceded, as he had done in a previous report, that "it is not possible to totally exclude the possibility of symptoms causing some restrictions". That was a relevant matter to take into account in the analysis. Dr Schutz's characterisation (at p 62), of the plaintiff's chest wall symptoms in terms that "any possible [chest wall] symptoms appear to be minor" and "relatively minor", are unexplained subjective judgments made by Dr Schutz, and they do not accord with the plaintiff's evidence to the contrary, and which I accept in preference to Dr Schutz's summarised impression.
Some further matters of concern arise over the acceptability of Dr Schutz's reasoning in his report of 27 August 2012. Although he took a history from the plaintiff of what he described (at p 62), as "some very substantial improvement since 2009, and hence since 2007" he still maintained that the plaintiff was exaggerating or embellishing his problems. His conclusion in that regard does not sit well with the plaintiff's history of "very substantial improvement". If the plaintiff was truly voluntarily exaggerating or embellishing his complaints, it would be unlikely that he would be conceding improvement of the kind there cited.
Another factor that causes me to doubt Dr Schutz's voluntary exaggeration or embellishment theory is that he has made no apparent allowance for the very obvious, documented, and substantial co-extensive, post-accident psychological factors that affected the plaintiff.
For Dr Schutz's voluntary exaggeration or embellishment theory to gain traction, those psychological factors needed to be taken into account by him, and clearly, he did not do so. In assigning to the plaintiff the behavioural labels of voluntary exaggeration and embellishment, Dr Schutz was not making an allowance for the effect of any psychological factors that could be impacting on or influencing the plaintiff's presentation. His views were therefore unduly narrow if not blinkered on that account, and his views in that regard did not accord with my assessment of the plaintiff when he gave his evidence, or the views of his treating practitioners, or that of Dr Klug.
My assessment of the plaintiff was that he lacked the guile to maintain a fraudulent charade of the kind contemplated by Dr Schutz's accusations, especially over such a long period of time.
Dr Schutz's sixth report, dated 20 January 2017, based on an examination that he concluded on that same date, was lengthy. It largely contained repetitive text replicated from his earlier reports, but with some additional commentary: Exhibit "6", pp 106 - 127.
Of some significance to his earlier assessments, Dr Schutz had before him (as he noted at p 106), a number of unspecified enclosures. One of the enclosures that he did identify (at p 114), was Dr O'Neill's report dated 26 May 2014, which Dr Schutz cited in terms of Dr O'Neill's opinion that "there were significant psychosomatic symptoms which included the continued complaint of faecal incontinence". Dr Schutz also had before him (as he noted at p 108), some material that was not identified as to date, from Dr Haik, contentiously stating that: "Overall, Mr Webb does not have a psychiatric disorder". Dr Schutz's analysis made no reference to Dr Klug's analysis of the psychiatric issues, which differed markedly to that of Dr Haik. It is not known as to whether the defendant's solicitor gave Dr Schutz that material. This is a difficulty for analysis where the relevant letter of instruction and the list of annexures sent to Dr Schutz was not tendered in evidence, as contemplated by UCPR r 31.27(1)(b). The only letter of instruction in evidence from the solicitor for the defendant to Dr Schutz was that dated 9 August 2012: Exhibit "5". The three numbered paragraphs in that letter as to the material briefed to Dr Schutz on that occasion were delphic, and provided no detailed or transparency or illumination as to particular documents or dates, except for two surveillance dates, namely 19 January 2012 and 24 July 2012.
However, it is known that when preparing his sixth report dated 20 January 2017, Dr Schutz had before him the MAS psychiatric assessment report of Assessor Jones, which identified albeit in limited terms, what Assessor Jones described (at Exhibit "6", p 219), as "a most complicated case", that the plaintiff had, in the opinion of Assessor Jones, "a chronic adjustment disorder with depressed and anxious mood (not inconsistent with the list of injuries to be assessed)": Exhibit "6" p 220. A cross-reference to those injuries as referred to by Assessor Jones (at p 212), revealed them to be: "Psychological - Depression and anxiety, chronic Post-Traumatic Stress Disorder, chronic Major Depression with anxious mood, chronic Adjustment Disorder".
A reading of the MAS Assessment report of Dr Jones shows that Dr Schutz would have before him the material that Dr Jones described as "Review of Documentation". There (at pp 218 - 219), Dr Jones made extensive reference to the psychiatric features of the plaintiff's case. Dr Jones also recounted, in some detail (at pp 213 - 218), the history of the plaintiff's post-accident psychiatric history and treatment, as well as the mental state examination findings Dr Jones recorded in relation to the plaintiff. It is therefore remarkable that in his own assessment, Dr Schutz did not refer to any aspect of that material, including the series of Dr Klug's reports covering the period 14 June 2011 to 3 September 2014, or Dr George's report dated 26 March 2013, for the purpose of providing a balanced overview of the plaintiff's presentation, including relevant psychiatric issues.
In his sixth report, Dr Schutz then went on to state (at p 124): "There is the matter of psychiatric aspects and there were significant non-organic aspects to the presentation over time and at this current 2017 examination. The psychiatric aspect has been well documented".
I am unable to discern from the evidence as to what constituted the documentation that led to Dr Schutz's cited conclusion that the psychiatric aspect of the plaintiff's situation was "well documented". However, I infer from the absence of any mention of reports from Dr Klug, that it was not well documented as the documentation in question appeared skewed, and only referred to Dr Haik's problematic opinion, and to Assessor Jones' assessment which was limited in its purpose and function to determining whether the plaintiff's circumstances met the threshold for assessing damages for non-economic loss: s 131 of the MAC Act; Pham v Shui [2006] NSWCA 373, at [90].
In his sixth report, Dr Schutz then proceeded to express his final opinions (at pp 123 - 128), which I considered to be problematic, and which embodied the following problematic elements: 1. Dr Schutz stated (at p 123), that the plaintiff had, in effect, told him there had essentially been "no change" over the entire period, and that there had been "no change" between his assessments in 2009, 2010, 2012 and 2017. In my view, that summary was problematic. This is because Dr Schutz had already recorded, inconsistently with that summary, in his report dated 27 August 2012 (at p 53) under the heading "Improvement?", that the plaintiff had said he was "learning to live with" his chest pain. Furthermore, in that same report (at p 62), Dr Schutz stated his view "that there has been very substantial improvement since 2009 and hence since 2007". In light of these earlier cited comments, it appears that Dr Schutz had overlooked his earlier views, and has possibly overstated the position of the state of the plaintiff's symptoms, in his 2017 examination. He was not called to explain this apparent anomaly in his reports; 2. Dr Schutz has cited non-organic factors, and has stated (at p 127), that it was "highly likely that [the plaintiff's] other symptoms … are due to this non-organic presentation and not the 2007 MVA". That statement appears to be problematic on a number of levels. First, it is remarkable that a specialist medical practitioner and expert witness, acquiescing as Dr Schutz did (at p 128), with the proposition that the plaintiff displayed "signs or features of exaggeration or embellishment", would place such skewed reliance on video surveillance material where there was other relevant evidence of psychiatric factors influencing the plaintiff's situation. Secondly, that latter consideration takes on greater significance when it is recognised that Dr Schutz had before him, at the least, Assessor Jones' view, as a psychiatrist, as cited at paragraph [251] above; 3. Elements of incongruence emerged from within Dr Schutz's final opinion, where (at p 128), when addressing that aspect of his opinion on the plaintiff's current functioning possibly improving, he stated: "Symptoms and restrictions have reportedly not changed over the nearly 10 years since his initial recovery following the 2007 MVA. Given all of (sic) factors involved in this case and the absence of reported improvement of any kind in the 10 years since the accident, there is unlikely to be any change in the future - despite surveillance indicating close to normal physical capacity." That statement has a number of problematic elements that have an impact upon the acceptability or otherwise, of Dr Schutz's opinion: 1. Dr Schutz's reference to unchanged symptoms and restrictions over 10 years does not appear to sit well with his earlier cited improvements, which he appears to have overlooked in making that summary as observed above; 2. Dr Schutz's reference to "all of factors involved in this case" is a most generalised statement that lacks specificity. It must necessarily be taken to include the psychiatric features of the plaintiff's situation, which Dr Schutz did not appear to consider to be significant when he acquiesced to the proposition put to him by the solicitors who retained him, namely that the plaintiff was exaggerating or embellishing his problems; 3. Dr Schutz's reference to "all of factors" must be taken to include his own subjective interpretation of the video surveillance material, where he apparently did not give the plaintiff the fair opportunity to comment on the specifics of those views (T81.43 - T82.44) before he finally expressed them; 4. Dr Schutz's reference to "the absence of reported improvement of any kind" appeared inconsistent with his earlier assessments, where, at the very least, it would have been relevant to make some reference in that conclusion to the plaintiff's statement that he was "learning to live with" his pain, as Dr Schutz acknowledged (at p 113), and that on one occasion when he saw the plaintiff, he cited the plaintiff's chest symptoms as being "not bad", which Dr Schutz had earlier interpreted (at p 122), to mean that sometimes the symptoms were worse. Dr Schutz appears to have overlooked these elements of improvements, or variations of the plaintiff's symptoms, in his final statement of opinion, where he made the sweeping and categorical if not hyperbolic statement of an absence of improvement of any kind; 5. Dr Schutz's opinions on the plaintiff's work capacity, and the plaintiff's treatment needs, were specifically addressed by him from the viewpoint of his specialty: Exhibit "6", p 128. His opinions on the plaintiff's current level of functioning, and on the question of whether the plaintiff showed signs of exaggeration or embellishment, were not so limited, as he appeared to be referring to "all of [the] factors": Exhibit "6", p 128.
Dr Schutz prepared a seventh report on 20 January 2017: Exhibit "6", p 129. That report, which, comprised a single page of opinion, did not cite the Expert Witness Code of Conduct. On that page, Dr Schutz expressed the following opinions: 1. The 2013 video surveillance material led him to comment: "Mr Webb was noted to be moving normally with no outward sign of symptoms or restrictions within the context of the activities observed."; 2. The 2015 video surveillance material led him to comment: "Video observations on several dates were noted. As in 2013 Mr Webb was noted to be moving freely with no outward sign of symptoms or restrictions."; 3. The 2016 video surveillance material led him to comment: "Video observations on 22, 24, 26 and the 31 August & 3, 6th & 07/09/2016 were noted. Again, as in 2013 and 2015, Mr Webb moved freely with no sign of abnormality."; 4. "Thus, from these and also from previous surveillance available at an earlier assessment, there was no observation of any abnormality in the context of any of the surveillance videos".
In my view, each of those above cited commentaries by Dr Schutz, concerning his interpretation of what he saw on the video surveillance material, comprised subjective opinions that required explanatory reasons requiring the inclusion of sufficient particularity to enable the basis of his opinions to be identified, to determine their reliability. This was a non-compliance with the Expert Witness Code of Conduct: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). It was insufficient for an expert to simply refer, as Dr Schutz did, to "Video observations on several dates" to base his remarks that were critical of the plaintiff's presentation. The specific critical observations and interpretations should have been placed before the plaintiff to provide him with a fair opportunity to comment. It appears from Dr Schutz's report, that he did not do so in this instance. I conclude that Dr Schutz's interpretation of the video surveillance material, and his reports, form an unreliable basis for impugning the plaintiff's credit and the veracity of his evidence as to his post-accident problems, in this case.
For the above reasons, I do not accept the opinions of Dr Schutz that deprecate the plaintiff's complaints, and which purport to attribute to the plaintiff the labels of voluntary exaggeration or embellishment of his symptoms and presentation. Insofar, as Dr Schutz has not given weight to the obvious psychiatric factors evident in this case, and which are well described in the evidence, I consider that his opinions do not incorporate or comprise a balanced appraisal, and should not be accepted.

Dr Langeluddecke's opinions

On 8 September 2014, at the joint request of the parties, Dr Langeluddecke conducted her psychological assessment of the plaintiff over a period of 5 hours. Her report of that assessment is dated 9 September 2014: Exhibit "6" pp 80 - 102. Previous reference has been made to aspects of Dr Langeluddecke's report in these reasons, at paragraphs [46] to [48], [68] to [70] above, and sub-paragraph (216) of paragraph [98] above.
Dr Langeluddecke stated that the plaintiff "… appeared to find cognitive testing very effortful", and he was easily overwhelmed and frustrated. Exhibit "6" p 81, par 1.3. She repeated that observation (at Exhibit "6" p 91, par 4.1) and at that point observed that the plaintiff gave up easily on the more challenging tasks. She also noted that he was "moderately anxious and depressed, and was tearful on a number of occasions at interview": Exhibit "6" p 91, par 4.1. She described his level of effort on cognitive testing as "Suboptimal at times". The detailed factual basis for that comment was left unexplained.
Dr Langeluddecke stated her opinion that the plaintiff's performance on testing "was well below acceptable levels on measures of feigned/exaggerated memory impairment": Exhibit "6", p 83, par 1.8. She did not explain what "acceptable levels of feigned / exaggerated memory impairment" were, nor did she differentially discuss what she then described as "consistently poor performance of the plaintiff on tests that tapped higher order cognitive functions": Exhibit "6", p 83, par 1.8.
Dr Langeluddecke's opinions as to the plaintiff displaying signs of malingering, exaggeration or embellishment have already been adverted to in the chronology of the plaintiff's post-accident medical and allied reviews, at paragraph [70] above, and at sub-paragraph (216) of paragraph [98] above.
Dr Langeluddecke confirmed that the plaintiff appeared to have developed an accident-related major depressive disorder in partial remission. She was unable to form a concluded view on the matter because of insufficient information about the plaintiff's pre-accident emotional and personality functioning, but she nevertheless concluded that she felt the plaintiff "is overstating his emotional and physical complaints, and thus it is difficult to be definite about psychiatric diagnosis at the present time": Exhibit "6", p 83, at par 1.10. There was no evidence of any apparent attempt by the defendant to update that view to cover the past three and-a-half years to seek a more definitive and current statement from Dr Langeluddecke.
Surprisingly, Dr Langeluddecke's previously cited critical comments on the plaintiff's cognitive difficulties being the subject of "malingering, exaggeration or embellishment" did not include any discussion on the possible effects of the plaintiff's medication intake on his cognitive function at the time of her testing. This was despite the fact that the plaintiff's medication intake was a matter of history that was evidently known to her: Exhibit "6", p 83, at par 1.11.
Given the conclusions I have formed on the reliability of some critical remarks made by Dr Langeluddecke in her report about the plaintiff, and his probity, and the genuineness of his presentation, it is necessary to identify some structural elements within her report, and the apparent basis for her expressed opinions about the plaintiff.
The summary and opinion section of her report comprised paragraphs 1.1 to 1.4. The section of her report that dealt with her ethical and legal obligations comprised paragraphs 2.1 to 2.5. The section of her report that dealt with her review of relevant documents comprised paragraphs 3.1 to 3.18. The section of her report dealing with her behavioural observations of the plaintiff comprised paragraphs 4.1 to 4.2. The section of her report which set out the history that she had obtained from the plaintiff, comprised paragraphs 5.1 to 5.13. The section of the report containing the history she obtained from the plaintiff's partner comprised paragraphs 6.1 to 6.7. Section 7 of her report comprised a single paragraph that set out a list of 14 psychometric testing instruments that she had administered to the plaintiff. The section of her report in which she identified the results and her interpretation of her psychometric testing of the plaintiff comprised paragraphs 8.1 to 8.10.
Dr Langeluddecke's conclusion was to the effect that she was certain the plaintiff displayed "signs of malingering, exaggeration or embellishment in relation to his cognitive difficulties and probably the case in relation to his pain complaints and psychological symptoms at the present time": par 1.14. She did not nominate which of those opinions to which she had attached such certainty, a term which I take to be unequivocal. Nevertheless, her cited view, as she expressed it, remains ambiguous, to say the least, and represents a tentative and incomplete analysis, at best.
There are a number of difficulties which, in my assessment, preclude a reasoned acceptance of Dr Langeluddecke's cited opinion: 1. First, she did not identify which of the three alternative propositions of malingering, exaggeration or embellishment that she considered to be applicable to the plaintiff, as a certainty, in relation to the plaintiff's cognitive difficulties; 2. Secondly, she did not identify with sufficient particularity, what she considered to have been signs the plaintiff had displayed as being malingering, exaggeration or embellishment. Furthermore, she did not, in her stated reasons, appear to have considered a reasonable alternative proposition, as was identified by Dr Klug in his explanatory oral evidence, namely the possibility of the plaintiff being affected by abnormal illness behaviour, which is an entirely different entity: T143.32 - T143.48. That possible entity needed to be differentially distinguished by an expert witness before levelling assertions of malingering, exaggeration and embellishment at the plaintiff, in the form of an expert opinion. Dr Klug's evidence left me with the impression that Dr Langeluddecke's analysis was incomplete in its consideration of the plaintiff's presentation; 3. Thirdly, she did not identify a reasoned basis for her opinion that the plaintiff was malingering, exaggerating or embellishing in relation to his "pain complaints and psychological symptoms", either as individual entities, or when taken together; 4. Fourthly, she gave inadequate reasons for her expressed feeling (at par 1.10), that the plaintiff was "overstating his emotional and physical complaints". Her qualification for expressing her feeling in that regard in relation to the plaintiff's physical complaints, was doubtful, at best, and it seems to me to have been necessarily undermined by her concession (at par 1.11 of her report), that the medications the plaintiff was taking for the management of his pain and depression "may impact on his cognitive functioning at times". When it is recognised that the plaintiff underwent 5 hours of testing by Dr Langeluddecke, and found the experience overwhelming and frustrating, it is not surprising that at times, his cognitive functioning, "particularly his concentration and processing speed" may have been impacted by those circumstances, and possibly the effects of the medications he was taking, or both of those factors in combination; 5. Fifthly, as Dr Langeluddecke was plainly unqualified to draw conclusions on matters of medical or physical diagnosis, a matter that she acknowledged, she must be taken to have relied upon other medical opinions which she had assumed to be correct, which is the implication to be reasonably drawn from paragraph 2.31.of her report, namely the document review she identified at paragraphs 3.3 to 3.18 of her report. It is apparent from that material, that the only document with which she was provided that contained an opinion there was no physical basis for the plaintiff's symptomatic complaints of pain in the chest, was Dr O'Neill's first report dated 11 June 2010, which for reasons identified at sub-paragraph (92) of paragraph [98] above, and paragraphs [167] to [183] above, I consider to have been an unreliable basis upon which to reject or discount the plaintiff's complaint of accident-related chest pain. In my view, such reliance, and Dr Haik's views dated 9 June 2009 in which he stated the plaintiff did not have a diagnosable psychiatric disorder, which she had before her when she prepared her report, appears to have influenced Dr Langeluddecke's cited opinions, rendering them unsafe and unreliable; 6. Sixthly, she made an unexplained statement of general prognosis, in which she said: "I consider it highly likely that Mr Webb's pain complaints and mood will improve following the resolution of his personal injury claim, particularly if he perceives the outcome as satisfactory": par 1.13. In my view, that was an oracular statement that was not satisfactorily supported by reasons, and it is therefore an unacceptable statement from an expert in this instance: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]. I am reinforced in that view by the evidence of Dr Klug (at T143.14 - T143.30) which I accept, in which he disagreed with that cited view of Dr Langeluddecke, based on his consultations with the plaintiff over the course of time.
Absent a challenge on the point, it must be accepted that Dr Langeluddecke was appropriately qualified to make neuropsychological assessments of "malingered neuro-cognitive dysfunction in Australian litigants", as stated at paragraph 2.2. of her report. However, when critically examined, her report is bereft of adequate reasons to support her stated views on questions of malingering, exaggeration or embellishment, as she claims to relate to the plaintiff. A careful reading of her report reveals (at par 7 on p 96 of Exhibit "6") that she administered the test she identified as Test of Memory Malingering (TOMM), which was the only test identified in her report as being a specific test for malingering, an assessment which, it must be emphasised, is not a medical diagnosis: T143.41 - T143.42;
At Appendix "B" to Dr Langeluddecke's report, the following factual evidence of the plaintiff's test result appears (at p 101 of Exhibit "6") concerning the administration of the TOMM test to the plaintiff: Test of Memory Malingering (TOMM) (Tombaugh, 1997) RS2 Trial 1 49 Trial 2 49 Trial 3 49
Dr Langeluddecke did not provide any identifiable discussion, analysis or reasoning in her report concerning the way in which that data was interpreted by her, or whether it could or should have been considered in light of known aspects of the plaintiff's intellectual functioning which might have impacted on those test results. For example, there is no discussion as to whether that test, when administered, included any adjustments or allowances for the plaintiff's mild intellectual impairment, of which Dr Langeluddecke said she had only limited information. It is insufficient for an expert to simply list, as Dr Langeluddecke has done here, the test results, which mean nothing to the reader without an accompanying interpretation from the expert, incorporating cogent reasons. It is unacceptable to merely state there was "certainly signs of malingering, exaggeration or embellishment" without an accompanying discussion that included reasons as to which of the conflated alternative propositions she had raised, were applicable, or as to how such conclusions would reasonably arise from her testing of the plaintiff, and without a reasoned discussion of other factors of possible influence, such as for example, possible abnormal illness behaviour, as mentioned by Dr Klug in his oral evidence. Dr Langeluddecke's report does not provide a satisfactory basis for fact-finding on such an important question.
Despite Dr Langeluddecke's acknowledgment of the Expert Witness Code of Conduct, I consider that her report regarding her conclusions that are critical of the plaintiff's credit, does not meet the essential pre-requisite reasoning requirements of that code comprising Sch 7, cl 5(1)(c), and the tandem requirements of the Uniform Civil Procedure Rules 2005: UCPR r 31.27(1)(c).
Accordingly, I do not accept Dr Langeluddecke's cited opinions that purport to question the plaintiff's probity and the genuineness of his presentation to her. I do not consider that a reasonable basis has been shown to support her sequential propositions that the plaintiff was malingering, exaggerating or embellishing, in respect of any of his complaints and described difficulties.
Dr Langeluddecke's report in this case was apparently directed at determining, by neuropsychological evaluation, whether the plaintiff had suffered a traumatic brain injury. At par 1.9 of the report (at Exhibit "6", p 83), Dr Langeluddecke considered that it was unlikely the plaintiff suffered such an injury.
Dr Langeluddecke did not appear to have before her, or if she did, she did not refer to it, the unusual item of the plaintiff's history contained in Dr Boyce's report dated 18 May 2016 (Exhibit "3", p 3), which he appears to have obtained from the hospital records that are not in evidence. In that report, Dr Boyce noted that: "In the immediate post-traumatic period and for a couple of weeks, Mr Webb was noted to speak in a peculiar accent, possibly Irish or American. He was otherwise orientated, but very agitated and made a slow recovery from his liver injury. It also took several weeks for his voice to return to normal." That item of history would have been relevant to an assessment of whether or not the plaintiff had suffered a traumatic brain injury.
As a matter of logical analysis, given that she stated, at par 1.4 of her report (at Exhibit "6", p 81) that the nature of the plaintiff's earlier academic difficulties were unclear to her, it is difficult to see, how, unless explained by expert reasoning, a reliable comparison or estimation could have been made by her between the plaintiff's pre and post-accident intellectual functioning. Be that as it may, the plaintiff no longer seeks to make a case for a finding he suffered a traumatic brain injury.
I conclude that Dr Langeluddecke's report is an unreliable basis for impugning either the plaintiff's credit, his co-operation with testing, recounting his history, and with regard to his litigation motives, as interpreted by Dr Langeluddecke.
I now turn to my findings of fact as to the plaintiff's ongoing accident-related disabilities.

(7) Disabilities that remain

The records of the plaintiff's general practitioner, Dr Mobilia, noted (at Exhibit "D", Tab 22, pp 473 - 474), that at the most recent consultation he had with the plaintiff, the plaintiff's ongoing problems were as follows: 1. Neuropathic pain, being predominantly right-sided chest wall pain radiating to the base of the neck and the right shoulder; 2. Chronic irritating cough; 3. Dyspnoea on exertion; 4. Right-sided upper limb tremor when performing actions, such as when writing or using power tools; 5. Thoracolumbar pain; 6. Post-accident faecal incontinence without bowel control; 7. Post-traumatic stress disorder, depression, adjustment disorder with anxiety flashbacks and disturbing dark dreams; 8. Chronic pain syndrome; 9. Sexual dysfunction, a matter upon which the plaintiff did not adumbrate in his evidence.
In my assessment, Dr Mobilia's summary provides a convenient framework for making findings as to the plaintiff's disabilities, subject to allowing for some fluctuation in the intensity of those problems, depending on the circumstances that impact upon the plaintiff from time to time, and also subject to some further items of historical detail of the plaintiff's disabilities that have emerged from the plaintiff's evidence, and from the histories summarised in the tendered medico-legal reports.
Before setting out my findings on the plaintiff's ongoing accident-related disabilities, and then proceeding to assess his entitlement to damages, it is necessary to identify my conclusions on the significant factual issues of conflict that have emerged from within the array of the medico-legal opinions tendered in evidence, where those conclusions are different to the diagnostic conclusions of the plaintiff's treating doctors. Those matters concern the following topics canvassed in the evidence: 1. Whether there is reliable evidence to enable the conclusion that the plaintiff has, consciously or otherwise, either malingered, or exaggerated his complaints, or has embellished them, so as to portray those disabilities to be of a greater extent than they are in fact; 2. Alleged inconsistencies in the plaintiff's presentation, as suggested by Dr Schutz; 3. Whether the plaintiff has chest wall pain of the kind he describes, and whether that pain should be seen as being neuropathic or psychosomatic in its nature; 4. Whether the plaintiff is affected by a right arm tremor, and weakness on exertion, as he has described; 5. Whether the plaintiff is in fact affected by the psychiatric illnesses as diagnosed by his treating and assessing practitioners; 6. Whether the plaintiff has faecal incontinence of the kind he described; 7. Other relevant physical disabilities that affect the plaintiff.

(a) Whether defendant has established malingering, exaggeration, embellishment

Following my analysis of the evidence, I have concluded that I should reject the various suggestions made by Dr Haik, Dr Schutz, and Dr Langeluddecke to the effect that the plaintiff has malingered, overstated, exaggerated or embellished his post-accident problems, particularly in respect of his complaints of pain, whether consciously for gain, or sub-consciously because of psychosomatic factors, including for alleged questionable motives.
My reasons for reaching that conclusion have already been set out in my evaluation of the respective evidence of Dr Haik, at paragraphs [184] to [207] above, Dr Schutz, at paragraphs [208] to [258] above, and Dr Langeluddecke, at paragraphs [259] to [277] above.
I accept the plaintiff's unchallenged evidence that none of the defendant's medico-legal examiners had put to him for his comment, any suggestion along the lines that he was exaggerating or "putting on" his complaints, or that his presentation was being deliberately driven by motives of "external incentives": T29.50; T80.35; T88.6.
In my assessment, I consider that the plaintiff gave truthful and reliable evidence on those matters. My analysis of the medical evidence, as set out in these reasons, and my viewing of the video surveillance material tendered, do not support an appropriately reasoned conclusion to the contrary of that view.
I am reinforced in that conclusion by my analysis of the evidence of Dr Klug at paragraphs [140] to [158] above, Dr O'Neill at paragraph [170] above, the analysis of Dr Prior at Exhibit "E", Tab 24, pp 562 - 591, and by the concession made by counsel for the defendant in the course of final submissions at the hearing, in connection with the limits of what can be concluded from the video surveillance material: T164.22 - T164.31; T168.46 - T169.20.

(b) Alleged inconsistencies in the plaintiff's presentation

As would be expected in a complicated factual case, where the plaintiff has attended at multiple treatment and medico-legal examinations, and where observations have been carried out over the course of time, that some apparent inconsistencies in various factual accounts are bound to arise. This could be either when histories were recorded by treating and assessing practitioners, or when histories were summarised by those practitioners. Accordingly, without specifically focussed evidence, such matters have to be viewed with some caution before being accepted as significant inconsistencies: Mason v Demasi [2009] NSWCA 227, at [2] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8].
Some inconsistencies are only minor, and are of little if any significance, as was observed by Assessor Jones, at sub-paragraph (236) of paragraph [98] above in connection with the defendant's video surveillance material.
In contrast, "gross inconsistencies" of the kind referred to by Dr Schutz at sub-paragraph (153) of paragraph [98], require cogent explanation, first, in order to identify or define them, and secondly, to explain the significance of such inconsistencies in the context of the assessments by the respective experts. Dr Schutz has not explained the equivalence of the circumstances of his examinations of the plaintiff and what he deduced from seeing the video surveillance material in terms of inconsistency, gross or otherwise. The plaintiff was not provided by Dr Schutz with a fair opportunity to comment on his conclusions on that material. The defendant has raised this question through the evidence of Dr Schutz, but it has not satisfactorily discharged the required onus of proof that might otherwise elevate such assertions into findings of inconsistency.

I accept that following the laceration to the plaintiff's chest wall, he has had, and continues to suffer from, chronic post-injury pain in his right chest wall.
In Dr Haik's first report (at p 6), the text of which was difficult to read because of the very small font used, he referred to the plaintiff's right chest wall pain and identified "neuropathic pain" as a term commonly used to explain pain that does not relent with time and treatment, and is believed to be as a result of damage to nerve tissue. Dr Haik cited Wikipedia as the reference for the view that "neuropathic pain cannot be explained by a single disease process or a single specified location of damage": Exhibit "6", p. 6.
That citation should be viewed with caution as respected authority suggests that Wikipedia is well known to be susceptible to unchecked and unqualified editing, including significant omissions and misinformation: Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833, at [22]. Courts have therefore taken the cautious approach of assigning little weight to information from Wikipedia: Timoney Technology Limited & Anor v ADI Limited [2007] VSC 402, at [42]. It has been held to be an unreliable source of expert information: Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103, at [43].
The strengths and weaknesses of a collaborative encyclopaedia such as Wikipedia are well known to those in the community who access the internet: Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, at [113]. Academic articles refer to the citation of Wikipedia as "a rather curious practice, given that [it] is recognised as often being inaccurate" and generally frowned upon, if used, for example, in an undergraduate term paper: Smyth, R : "What do Trial Judges cite?" (2018) 41(1) University of New South Wales Law Journal, referring to other articles reciting the same conclusion on this topic.
In contrast to Dr Haik's approach to defining the term neuropathic pain, it is instructive to refer to a range of recognised medical dictionaries to reliably identify the meaning of the term neuropathic.
The Dorlands Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1994, at p 1132 defines "neuropathic" as pertaining to or characterised by neuropathy, a term which is in turn defined as follows: "Neuropathy : a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to non-inflammatory lesions as opposed to those of neuritis; the etiology may be known or unknown …"
The Oxford Medical Companion, edited by Walton J, et al, Oxford University Press, 1994, at p 634, defines neuropathy as follows: "Neuropathy is any pathological condition affecting the peripheral nervous system, motor sensory, or autonomic. Common causes include diabetes mellitus, alcoholism, malnutrition, genetic abnormality, carinomatosis, and mechanical pressure on nerves; but there are many others."
Blakiston's Gould Medical Dictionary, Fourth Ed, McGraw Hill, 1979, defines neuropathy as : "Any non-inflammatory disease of peripheral nerves" (pp 908 - 909). The term neuropathic is there also defined as "pertaining to, nervous disease" or "originating in or caused by disease or dysfunction of nerves of the nervous system" (p 908).
On the evidence, aided by the above cited explanatory definitions, on the evidence in this case, I see no difficulty in drawing from the evidence of the plaintiff's major chest laceration, a commonsense connection of probable cause between that lacerating chest injury and the sharp-jabbing and distracting nerve pain that he experiences, especially on carrying out certain movements: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, at pp 563 - 564.
In coming to that conclusion, I have accepted the plaintiff's evidence that he has such pain connection and that he has experienced the chest wall pain he has described as having its onset since the time of the accident: T18.29. I have rejected the argument to the contrary as was sought to be developed by Dr O'Neill, who has proceeded on the basis of an assumed delayed complaint of chest pain, where that theory is not sufficiently like the acceptable and accepted evidence of the plaintiff on that topic: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. Irrespective of whether the pain is described as neuropathic, or as Dr Boyce stated, intercostal neuralgia, I find that as a result of the subject accident, the plaintiff has ongoing and distracting right-sided chest wall pain.

(d) Right arm tremor and weakness on exertion

The plaintiff has complained of a right-sided arm and hand tremor, and associated weakness on exertion: T72.50 - T73.1; T76.8 - T76.10.
The earliest clinical record of a problem along those lines is found in Dr Grassby's note dated 27 September 2007, which is summarised at sub-paragraph (19) of paragraph [98] above, to the effect the plaintiff had lifting restrictions and an exertion tremor of the right hand. Allowing for a reasonable period of post-accident recuperation before attempting to resume a range of activities, I consider that record of complaint to be reasonably contemporaneous to the time of injury.
I accept the plaintiff's evidence in which he has historically described, and continues to experience, to varying degrees depending upon the circumstances, an exertion tremor, and an associated lifting difficulty, in his right upper limb.

(e) Psychiatric illnesses affecting the plaintiff

On considering the plaintiff's evidence as to his disabilities, which I have accepted, and on considering the evidence of the plaintiff's treating and assessing practitioners that I have also accepted, I consider that the plaintiff's psychiatric and psychological disabilities are appropriately encapsulated in the distillation that follows.
The plaintiff developed symptoms of post-traumatic stress not long after the accident. In December 2007. Dr Burek recorded this diagnosis in conjunction with the plaintiff's experience of pain, nightmares, and flashbacks to the accident itself. There is little room for doubt that in the events of the accident, the plaintiff underwent a frightening experience that resulted in chronic post-traumatic stress disorder, and went on to develop major chronic adjustment disorder and major depression, and depressed mood.
Those conditions developed in conjunction with the plaintiff's experience of chronic pain, which has become recalcitrant to treatment. The plaintiff also experiences accident-related panic attacks, which have led to him experiencing random episodes of faecal incontinence. These experiences have caused the plaintiff considerable irritability, frustration and distress.
The plaintiff has also become prone to impulsive behaviour where, on a number of occasions, he has taken active steps towards fulfilling his suicidal thoughts. For a time, he also engaged in pathological gambling as an outlet for his negative feelings. Fortunately, his gambling problem has been in remission for some time, possibly because his partner limits his access to funds.
The plaintiff has suffered bouts of anger at his predicament. He has lost confidence and he has suffered feelings of diminished self-esteem in conjunction with his depression and his mood swings.
The plaintiff's psychiatric problems have necessitated him taking psychotropic medication. In combination with his psychological symptoms, that medication has had a deleterious impact upon his cognitive functioning. This is against a background where the plaintiff has had longstanding mild intellectual impairment. The defendant must accept that additional layer of intellectual impairment as the plaintiff must be taken as he is found, here, having an underlying mild intellectual impairment. It is plain that he could ill-afford to suffer an additional layer of cognitive difficulty which has occurred as a result of the accident and its effects: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406.
The plaintiff's decreased level of psychological functioning is a very significant problem for him. The plaintiff's persistent psychiatric disabilities, including anger outbursts, have rendered him to be a dysfunctional man who feels helpless and hopeless in his situation.
On account of their inadequate reasoning, I have rejected in their entirety, the comments variously made by Dr Haik, Dr Schutz, and Dr Langeluddecke, which either state or which seek to imply, concerns over the plaintiff deliberately malingering, embellishing, exaggerating his symptoms or being deliberately motivated for secondary gain from the proceedings. For the reasons already outlined, I reject the opinions of those experts where they seek to rebut any psychiatric or psychological diagnosis made by the plaintiff's treating and assessing practitioners.
The preponderance of the medical evidence which I have accepted, is that the prospect for any change in the plaintiff's condition is not significant. The accident has left the plaintiff with lasting physical and psychological disabilities. The plaintiff's accident-related psychological problems are exacerbated by his physical problems and his reactions to a range of stressful circumstances: Exhibit "C", pp 83 - 84.

(f) Plaintiff's faecal incontinence

The plaintiff was initially imprecise in his evidence in which he described the onset of his faecal incontinence problems. He said that he has experienced bowel problems ever since his colonoscopy whilst still in hospital: T14.20. He added that ever since the accident he has not been able to "poo correctly" (T14.23) and started wearing incontinence pads about seven or so years ago when he was told about them: T14.34. He said the incontinence had progressively worsened over time: T14.39.
The plaintiff elaborated on the frequency of his bowel function problems by explaining that on 9 July 2007, when he saw Dr Haghighi, his bowel problems were "on and off" and it was possible he did not have that problem on that day: T83.37. Given that the plaintiff spoke in concrete, direct and unsophisticated terms, I did not consider his cited answer was incredible or improbable, or revealing of an inconsistency that made it difficult to accept.
That evidence was consistent with the plaintiff's other evidence that his bowel problems arose within 3 - 4 days "Straight after" the accident, but by 2011, his "on and off" bowel problems with incontinence just got worse, and he was unable to "hold it" from then onwards, so that he reached the point where he could no longer exercise control: T83.3 - T83.25.
The plaintiff's evidence on this topic was generally corroborated by the unchallenged evidence of his partner, who observed that since the plaintiff had his colonoscopy procedure in hospital, he has rarely had control of bowel movements, and this has worsened over time: T109.40 - T110.15.
That evidence is also consistent with the plaintiff's evidence of having bowel problems "Straight after" the accident and which then worsened, as cited at paragraph [314] above.
After extensive investigations and consultations aimed at seeking a physical cause for the plaintiff's randomly occurring faecal incontinence, Dr Klug eventually identified that problem to be due to the plaintiff's experience of panic attacks: Exhibit "C", Tab 1, p 25; T140.18 - T141.30. That evidence was not glaringly improbable, it was not challenged or contradicted, and I therefore accept Dr Klug's evidence on that issue. That evidence explains the timing of onset of those problems, and the intermittent and random nature of those problems.

(g) Other disabilities

The plaintiff's physical problems include: 1. Scarring to the right side of the chest wall which is disfiguring: Exhibit "F". 2. Scarring to the right elbow: Exhibit "C", p 82. 3. Pain and tenderness in the chest wall (T18.24) due to scarring of the injured muscles, and a sensory deficit in the skin of that area probably due to damage to the superficial cutaneous nerves of that area if not an intercostal nerve: Exhibit "C", p 81. 4. Intermittent cough on exertion: T31.44 - T33.4. 5. Shortness of breath on exertion and difficulty maintaining running or jogging activities, or play ball with his son: T33.49 - T34.5. 6. Damage to the serratus anterior muscle of the right shoulder which has resulted in impaired right shoulder movements: Exhibit "C", p 81. 7. The risk of future bowel adhesions and intestinal obstruction as a consequence of an ileus or dilated bowel following the plaintiff's intra-abdominal injury: Exhibit "C", p 83. 8. Risk of renal hypertension from contusion of the right kidney in the accident: Exhibit "C", p 83. 9. Urinary difficulties, possibly due to taking tricyclic antidepressant drugs: Exhibit "C", p 82. 10. Considerable weight gain: T24.42; T117.39. 11. Inability to participate in his recreation of golf: T25.1. 12. Reduced ability to engage in and sustain household activities: T23.20 - T23.27. 13. Mood disturbance and impulsive aggressiveness and anger: T16.17 - T16.23; T19.36; T27.45. 14. Noise intolerance and irritability: T38.15. 15. Flashbacks, nightmares and suicidal thoughts: T20.31 - T20.45; T28.36; T37.11 - T37.36; T100.8. 16. Difficulty driving long distances, psychological discomfort as a passenger in motor vehicles, and proneness to panic and road rage behaviour: T20.50 - T21.17. 17. Reduced attention to personal hygiene: T93.44. 18. Embarrassment concerning faecal incontinence: T22.37. 19. Reduced ability or inclination to socialise: T33.45. 20. Sleeping difficulties: T20.29. 21. Impaired marital relations: T36.43 - T37.3.
At the most recent of Dr Mobilia's consultations, it was noted that the plaintiff was being driven by his wife because of concerns over his safety in the context of his "chronic dysfunction". The plaintiff said, and I accept, that he struggles to drive short distances (T75.40), and he struggles to engage in his past-time and enthusiasm for four-wheel drive vehicles: T76.31. The video surveillance footage tendered by the defendant shows that on a number of occasions that the plaintiff has been driving his vehicle. Those observed journeys were relatively short, and do not necessarily demonstrate that Ms Triplett's concerns over the plaintiff's safety as a driver are ill-founded.
Dr Mobilia's last notation of the plaintiff's current medications for the treatment of the plaintiff's depression and chronic pain syndrome were variously listed as comprising daily doses of Epilim EC, Gabapentin, Pristiq, and Tramadol: Exhibit "D", Tab 22, p 472.
The plaintiff continues to feel stressed, depressed and on occasions, suicidal, which requires that his partner feels the need to take vigilant measures. He feels frustrated at being a stay-at-home parent. He gets frustrated at having bouts of being bed-ridden for days: T116.9. He worries about driving: T92.35. He is impatient: T114.40. He experiences anger and aggression, and he has resorted to gambling to alleviate his feelings of stress (T25.33), which has caused other problems for him and his family. He has become somewhat socially isolated as he has struggled to socialise: T33.45. His post-accident attempts at work were affected by his mental health issues and his distress: T113.1 - T113.9. All of these matters have affected his relationship with his partner (T36.45 - T37.3) and he is upset and uncertain about his future: T99.7 - T99.9; T117.19 - T117.24.
The plaintiff's partner, who has known him since 2006, has observed that he no longer exhibits his pre-accident characteristics, which included being very active and outgoing, and not stopped by challenges, which he used to readily accept: T107.50.

(8) Work effects

I accept the plaintiff's evidence that he regarded his pre-accident employment position as fun, even though it was fly-in-fly-out work, 20 days on and 10 days off, working 12 hours per day. I accept his evidence that although the work involved labouring, digging mud pits and attending to machine parts and rigging equipment, he considered it to be good work within his capabilities: T9.45 - T9.50. He obviously had a positive outlook and willingness for that work, and the demands of that work were within his physical and mental capabilities. Although it was early days in that work, he appeared to have found his niche. His injury on 1 May 2007 was only a short-term factor that affected his ability to fully carry out that work.
I have concluded that the effect of the injuries the plaintiff sustained in the subject accident, and the effect of his resultant physical and psychological disabilities, as identified at paragraphs [279] to [289] above, indicates that his earning capacity has been greatly impaired, and in practical effect, it has been permanently destroyed.
I have accepted the opinions of Dr Klug, as expressed in his reports and in his oral evidence, to the effect that the plaintiff's remaining working capacity, if any, is negligible on account of the combined effect of his experience of physical pain, his accident-related chronic pain disorder, his accident-related post-traumatic stress disorder, and the other related psychiatric problems that have been described by Dr Klug and the plaintiff's treating practitioners.
In coming to those conclusions, I have not accepted the respective views to the contrary, as variously expressed in the reports of Dr O'Neill, Dr Haik, Dr Langeluddecke, and Dr Schutz, and to a more limited degree as already outlined, those expressed by Dr Boyce.
I considered that the medico-legal opinions relied upon by the defendant to suggest that the plaintiff has a capacity to work, are in this case, should not be accepted, for the reasons that follow: 1. I consider that Dr O'Neill's comment in his final report, dated 23 January 2017 (at Exhibit "6", p 105), where he stated that he could find "no neurological injury which would prevent [the plaintiff] from return to work in an appropriate capacity for his overall condition" should not be accepted as it was based on the undefined premise of a delayed complaint, which is not sufficiently like the evidence to render his views reliable: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. Furthermore, as already explained, his opinion is so inherently vague. His opinion is not supported by adequate reasons. His reasons vacillated for explaining the plaintiff's neuropathic chest wall problems, and his opinion is unreliable because of the absence in the evidence of a full complement of his reports that would otherwise be expected to provide the full content of his opinions; 2. I do not accept Dr Haik's variously stated views over time to the effect that the plaintiff could be considered capable of remunerative employment (Exhibit "6", p 8); that he was capable of "any form of employment from a psychiatric perspective" (Exhibit "6", p 31); that his psychological state would not impair his ability to work: Exhibit "6", p 76. Dr Haik's cited views appear to have been based on his flawed proposition that, despite the plaintiff's described symptoms, the plaintiff did not have a psychiatric disorder. I accept Dr Klug's assessment that Dr Haik's view in that regard, was difficult to understand: Exhibit "C", Tab 1, p 43. I consider Dr Haik's cited views to be based on an inadequate and unsatisfactory analysis, as I have explained in more detail, at sub-paragraphs (75), (99) and (186) of paragraph [98] and paragraphs [184] to [207] above. Dr Haik went on to express the view that "it would be implausible to believe that [the plaintiff] would be able to find sustained work in the future given his pre-accident work history": Exhibit "6", p 76. I reject Dr Haik's view in that regard as it runs contrary to the undisputed and independent opinion of Dr Mendis who examined the plaintiff and fund him fit for such work: Exhibit "D", Tab 19, p 140, pp 166 - 175. If the defendant's case was that he was unlikely to find sustained work because of his pre-accident work history, the defendant was obliged to call cogent evidence on that point. I find Dr Haik's cited reasons to be an inadequate and unacceptable analysis that was in the form of a submission, and not a reasoned opinion: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [81], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93]; 3. Dr Langeluddecke's views on the plaintiff's earning capacity are problematic. She declined to comment on the plaintiff's physical work capacity as she acknowledged, appropriately, that she was not qualified to do so. However, she then went on to state that she considered it "highly unlikely that there is neurologically-based impairment on his employability", albeit acknowledging that the plaintiff's depressive condition has the potential to impact on his motivation and ability to work: Exhibit "6", p 83, par 1.2. I have not accepted Dr Langeluddecke's opinion on the question of the plaintiff's employability. I considered that her views were influenced by her inadequately explained and unsubstantiated opinion that the plaintiff displayed signs of malingering, exaggeration or embellishment, and where the effect of her opinion is that she has downplayed the plaintiff's complaints of pain on the basis of an incomplete and unreliable analysis: Exhibit "6", pp 83 - 84, par 1.14. My reasons for that conclusion appear at sub-paragraph (216) of paragraph [98], and paragraphs [259] to [277] above; 4. I consider that Dr Schutz's ultimate opinions on the plaintiff's work capacity were unreliable and I have not accepted them. In essence, Dr Schutz's views on this subject, which evolved over time, were that: 1. In June 2009, Dr Schutz thought the plaintiff could possibly do a light job that did not involve any significant manual activity, but that this would require significant rehabilitation input: Exhibit "6", p 18. That opinion was not borne out by subsequent events and even if it applied on a physical basis, it is no longer applicable, especially taking into account the plaintiff's psychiatric problems. It is noteworthy that there were unsuccessful historical attempts by the worker's compensation insurer to rehabilitate the plaintiff. Despite those attempts, the plaintiff has continued to receive weekly payments of worker's compensation, and it was not suggested by the defendant that he had in any way unreasonably failed to mitigate his damages for loss of earnings; 2. In October 2010, Dr Schutz thought that the 4 DVDs he then saw, which contained video surveillance material, and which were accompanied by some surveillance notes and unspecified "documentation", indicated to him "that whatever pain exists in [the plaintiff's] right chest wall, it does not have significant effects on mobility or activity" (Exhibit "6", p 42) "within the fairly general every day activities observed" (Exhibit "6", p 44). Those observations apparently led Dr Schutz to the view that the plaintiff's "history and demonstrated movements and other findings on examination" indicated the plaintiff "was fit to perform light and varied tasks which would be consistent with working as a sales person, probably a driver, including taxi driving if there was no significant lifting involved, and many other activities" including "an activity short of a heavy labouring job": Exhibit "6", p 45. Dr Schutz's opinion in that regard did not include a consideration of either the plaintiff's psychiatric problems, or his intellectual capacity for such work. I have already recorded my findings on the inconclusiveness of that video surveillance material, at paragraphs [31], [35], [38], [73], [109] and [285] above; 3. In August 2012, Dr Schutz considered that the plaintiff "could work in a suitable job", which from the context in which he expressed that opinion, appeared to be a car sales position (Exhibit "6", p 63), but given the plaintiff's description of the events of his attempt to do so, which I accept as reasonable, that suggestion by Dr Schutz was plainly not a viable option: T97.32 - T97.46. In his further commentary on the video surveillance material, Dr Schutz said it was "not possible to accurately determine … any basis for restriction in work activities in the future": Exhibit "6", p 50. The terms of his opinion in that regard were therefore significantly qualified, and did not take into account the effect of the plaintiff's psychiatric diagnoses, or the plaintiff's described pattern of experience with randomly occurring faecal incontinence due to panic attacks; 4. In January 2017, Dr Schutz noted (at Exhibit "6", p 110), Dr Haik's psychiatric assessment, which was critical of the plaintiff's motives, and he stated (at Exhibit "6", p 125), that the plaintiff's "Possible psychiatric or behavioural but (sic) outside the scope of this report". Dr Schutz went on to observe (at Exhibit "6", p 127), that the plaintiff's physical functioning, based on unspecified DVD surveillance film that he had seen, was "observed to be normal in the context of all the observations … and any possible chest wall symptoms would be highly unlikely to cause any significant restriction". In answer to a question as to the plaintiff's capacity for work viewed from the perspective of his specialty, Dr Schutz said this was "Objectively normal", which he later described as "close to normal physical activity": Exhibit "6", p 126. In my view, that opinion was an incomplete basis for assessment because it was expressed from the narrower perspective of Dr Schutz's evaluation of physical matters, and it did not reflect the plaintiff's several psychiatric diagnoses, and it did not give due consideration to a representative balance of psychiatric opinions, only referring to Dr Haik's opinions, which, for the reasons already stated, I am compelled to reject as unsatisfactory; 1. In May 2016, Dr Boyce addressed the specific question of whether the plaintiff was unfit for employment, and he stated in only general terms, that the plaintiff was "not unfit for employment": Exhibit "3", p 8. That generalised opinion was of limited probative value because it lacked sufficient cogent reasons as required by UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c), and it did not reflect obvious psychiatric factors, as was later summed up by Dr Klug; 2. The MAS assessment reports are of no assistance to a determination of the plaintiff's capacity for work because of the limited gateway issue to which they relate, namely whether the plaintiff has an established entitlement to claim damages for non-economic loss: s 131 of the MAC Act: Pham v Shui [2006] NSWCA 373, at [90].
I conclude that the plaintiff's claim for loss of earnings and loss of earning capacity should be assessed on the basis of Dr Klug's final views, that the plaintiff's employment prospects are, for the foreseeable future, negligible given his profoundly unwell psychiatric state: Exhibit "C", Tab 1, p 47.

(9) Domestic effects

During the trial, the plaintiff abandoned his claim for damages for domestic assistance. It is therefore no longer necessary to consider in detail the effect the accident has had on his domestic activities. That said, the video surveillance footage that the defendant tendered in evidence indicates that the plaintiff has engaged in a range of light domestic and day-to-day activities, without apparent difficulty, albeit intermittently. The plaintiff did not materially deny he could undertake those activities. The haphazard or opportunistic dates on which these matters were recorded on surveillance footage as observed does not reasonably permit a reliable pattern of ability and pain free activity to be discerned. I accept the preponderance of the medical opinions that the video surveillance material was non-contributory to the issue of assessing the plaintiff's psychiatric unwellness.

(10) Mitigation

The plaintiff was under a legal obligation to take reasonable steps to seek to mitigate the adverse effects of his injuries. This was according to common law requirements as well as pursuant to s 136 of the MAC Act, as well as s 151L of the Workers Compensation Act 1987. During the course of providing the plaintiff with worker's compensation payments, the worker's compensation insurer tried to arrange a course of work rehabilitation for the plaintiff, but he showed no aptitude for the clerical tasks involved in that attempt. Those circumstances do not detract from the plaintiff's credit. The defendant must take the plaintiff, and his limited abilities in that regard, as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406. I consider that the plaintiff has taken reasonable steps to pursue medical treatment so that he has discharged his duty to mitigate his damages. In final submissions, the defendant did not suggest that the plaintiff has unreasonably failed to mitigate the effects of his injuries: T138.36 - T138.39.

Assessment of damages

In the paragraphs that follow, I set out my monetary assessment of the various elements of the plaintiff's claim for damages.

Plaintiff's remaining life span

At age 34 years, the plaintiff's rounded median statistical life span is identified as being a remaining 51 years. He has a rounded theoretical remaining working life of 33 years. The 5 per cent multiplier for 51 years is 980.6. The 5 per cent multiplier for 33 years is 855.7.

Vicissitudes

The plaintiff's claim for future losses, in particular future economic loss, must be assessed in conjunction with an appropriate discount in mind for possible vicissitudes, which may adversely impact upon either party in the litigation where not all vicissitudes are harmful: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, at [19].
Without attempting to define that matter exhaustively, in this case, the potential vicissitudes adverse to the plaintiff include those of early mortality, possible intervening incapacity from other causes, or possible fluctuations in labour market conditions. Similarly, the potential vicissitudes adverse to the interests of the defendant include a possible post-litigation improvement in the plaintiff's condition such that he might achieve a decrease in his level of disability and a possibly concomitant emergent earning capacity, notwithstanding assumptions and findings made to the contrary, that underpin the assessment of his claim for damages.
In that latter regard, Dr Klug's opinions persuade me that such an improvement, and any such possible increase in earning capacity, should be seen to be negligible: Exhibit "C", Tab 1, p 47.
In my view, in ordinary circumstances, those matters are adequately addressed and met by applying a conventional discount of 15 per cent: Burnicle v Cutelli [1982] 2 NSWLR 26.
However, I consider that in this case, an additional element of discount must be applied, not only in light of the plaintiff's past history of suicidal intention, but also because in the past he has acted upon such thoughts on a number of occasions. Those factors must be brought into account in an assessment of future damages.
I consider that latter factor is fairly and adequately met by applying a discount of 20 per cent to the plaintiff's damages for future economic loss on account of all potentially adverse vicissitudes to which the plaintiff may become subject.

Non-economic loss

On behalf of the plaintiff, it was submitted that his damages for non-economic loss should be assessed in the amount of $316,200. That submission was initially made on the basis of an argued assessment of 60 per cent of the indexed maximum awardable amount for non-economic loss, namely $527,000. That initial submission was based on the erroneous assumptions that there was such a cap, and that s 79A of the Motor Accidents Act 1988 applies. In oral submissions that error was acknowledged, and corrected, but the monetary submission of $316,200 was maintained as being apt to the plaintiff's circumstances.
In contrast, the defendant submitted that if the plaintiff was entitled to an award of damages for non-economic loss, such an award should be in the amount of $200,000. In my view, an assessment in that amount is inadequate to the plaintiff's circumstances as I have found them to be. I consider that the amount submitted on behalf of the defendant does not represent fair compensation for the plaintiff's multiple aggregated and complex accident-related problems as they have impacted on his pain, suffering, and loss of amenity of his life.
The plaintiff underwent a frightening experience, which has left him with ongoing physical symptoms of nerve pain in his right chest wall. He has ongoing distressing psychological symptoms which justify the diagnosis of chronic PTSD and an adjustment disorder with major depression. He has random panic attacks, with frequent and related episodes of faecal incontinence. These problems have emerged since the subject accident almost 11 years ago, and the medical evidence concerning the prognosis for any significant resolution of those problems after treatment, remains speculative, uncertain, and therefore in my view, poor.
The last psychiatric review of the plaintiff took place on 4 December 2017. At that time, Assessor Prior, a consultant psychiatrist, confirmed the plaintiff was suffering from the conditions he identified as: post-traumatic stress disorder, co-morbid major depressive disorder and secondary panic phenomenon, and a gambling disorder that was in remission, and that latter problem was secondary to the chronic PTSD and major depression: Exhibit "D", pp 562 - 591, at pp 583 - 584.
Following that review, Dr Prior prepared a tabulation of his reasons for those diagnoses, and he canvassed the key categories of the plaintiff's day-to-day functioning as they were impacted upon by his psychological and psychiatric symptoms. Those categories comprised: the plaintiff's self-care and personal hygiene; social and recreational activities; the ability to travel outside the home; social functioning; and matters to do with the plaintiff's concentration, persistence and pace: Exhibit "D", pp 585 - 590.
A brief review of Dr Prior's survey of those factual matters is instructive, as those matters are influential on the assessment of the plaintiff's damages for non-economic loss.
As to the plaintiff's self-care and his personal hygiene, the plaintiff is generally amotivated and therefore, his hygiene is less than adequate. He gets stressed performing routine tasks. He is forgetful in several respects, and he is dependent on his partner to remind him to take his medication. His frequent and random experience of faecal incontinence is distressing to him, as was evident at the hearing, as observed and noted at paragraphs [23] to [25] above.
As to the plaintiff's social life and recreational activities, these are much diminished, and he no longer plays golf, a past-time in which he was accomplished before the accident. He avoids crowds, and he avoids social interaction.
As to his ability to travel, he undertakes relatively short journeys in his vehicle. He is prone to anger and road rage, and in that regard, he is at risk of deliberate self-harm when he drives and becomes angry. Understandably, he is hypervigilant when around trucks and vehicles with wide loads, and around farm machinery. He is prone to anxiety in such situations. In such circumstances he could become faecally incontinent if the situation involved feelings of panic.
As to the plaintiff's social functioning, he has become irritable with his children. His relationship with his partner has become strained, his relationships with his parents, a brother, and his partner's parents have become difficult, and this is associated with estrangement. He is not capable or reliable in relation to the care of his children, and his circle of friends has become much reduced.
As to the plaintiff's cognition, concentration, persistence and pace, those functions are impaired as he struggles to think, his concentration span is reduced, he is forgetful of names and with regard to commonplace obligations such as needing to attend to his children. He frequently misplaces personal items. He finds it difficult to persevere and to complete tasks. The plaintiff has both subjective and objective cognitive difficulties. His medication intake can exacerbate some of those problems.
The plaintiff periodically has nihilistic thoughts, and he has in the past taken significant actions on those thoughts in a suicidal manner. In my assessment, those factual matters as surveyed and summarised by Assessor Prior have had a substantial negative impact on his life, and on his ability to enjoy his life.
In my view, those matters, as explained in the medical evidence reviewed at sub-paragraphs (1) to (286) of paragraph [98], and at paragraphs [101] to [278] above, and the summary and findings relating to the plaintiff's disabilities, at paragraphs [279] to [289] above, call for a significant award of damages for non-economic loss, towards the upper end of the range. I have avoided assessing such damages at the very upper end of the range because of the recognised need to ensure there is no effective overlap with the award of damages for loss of earning capacity.
The combination of the plaintiff's experience of physical pain and disability, as he describes it, and which I accept, along with his post-accident scarring, his significant accident-caused psychological problems, and his episodic faecal incontinence, represent a significant and major recurring interference with the otherwise normal amenity and the enjoyment of his life.
I therefore assess the plaintiff's damages for non-economic loss in the amount of $280,000.

Past loss of income

On behalf of the plaintiff, it was initially submitted that his claim for damages for past loss of income should be assessed in the net amount of $601,344. The basis of that submission was the net equivalent of a pre-accident annual salary of $74,000 per annum gross, continuing from 15 May 2007 until the commencement of the hearing. In final submissions, the net amount for past economic loss was submitted to be $584,220, which was the figure arithmetically calculated and submitted by the defendant, and agreed to by the plaintiff, as being correct.
In contrast, the defendant submitted that the appropriate award for past loss of income should be in the discounted amount of $393,044. That submission was based upon a calculation of past net comparable earnings of $584,220, but discounted on account of an argued residual earning capacity in the plaintiff comprising an average of 2 days per week after 1 July 2009, and after applying a further discount to allow for the suggested contingency that the drilling work which underpinned the plaintiff's submissions, may not have been continuously available to him in the long term, including beyond 1 July 2009.
In my view, the defendant's submission calling for a discounted award for past economic loss proceeds upon unjustifiably pessimistic assumptions that are not adequately supported by the evidence.
Before the subject accident, the plaintiff was assessed as being medically fit for the type of work that formed the basis the submitted calculation. Furthermore, there is no reliable evidence to suggest that the plaintiff would have had any residual limiting effects of his injury on 1 May 2007, which, on the evidence, seemed to have been of a temporary soft tissue nature, without any long term impact upon his earning capacity. The overall effect of the sequential certification of the plaintiff's unfitness for work until the present time reveals the defendant's submission as to a residual earning capacity to be unrealistic. No contrary evidence was called by the defendant on those matters: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] - [47]; s 5D of the CL Act.
The remuneration rates that based the calculation of the plaintiff's past loss of earnings were supported by factual evidence of labour market pay rates for the mining industry relating to drilling in remote locations: Exhibit "E", pp 592 - 594. There was also evidence of the availability of work for Driller's Offsiders and Drillers in that industry. Furthermore, it would be reasonable to infer that if work was available for Drillers, it was therefore also likely that work would be available for Driller's Offsiders as well: Exhibit "E", pp 595 - 602.
The first question to be addressed in this context is whether the agreed calculation of past comparable net earnings, identified at $584,220, should be discounted in the manner that was submitted by the defendant.
The two submitted elements of the defendant's argument seeking to justify a discount were: first, the assumptions that the plaintiff would have had a residual earning capacity of 2 days per week after 1 July 2009, and secondly, subsequent to that date, a further element of discount is required because of a claimed contingency that the plaintiff's pre-accident work, or work of that kind, would not have continued to be available to him after 1 July 2009.
As to the first element of suggested residual earning capacity of 2 days per week after 1 July 2009, there is no reliable evidence to reasonably support that submission or to infer a basis for it in fact.
In contrast to that first element of the defendant's submission under present review, I consider that the extensive chronology of medical attendances outlined within in the sub-paragraphs of paragraph [98] above reveals the plaintiff clearly continued to receive workcover medical certificates that validly, and serially expressed clinical opinions to the effect that since the accident, he has remained unfit for his pre-accident duties. If those certificates were considered by the worker's compensation insurer to be in any material unjustified, doubtless, the plaintiff's weekly payments of worker's compensation would have been terminated or reduced. Whilst the decisions or non-decisions made by the worker's compensation insurer in that regard do not bind the defendant in those proceedings, no reliable medical evidence has been introduced into these proceedings that would reasonably serve to justify the defendant's submission that the plaintiff had a residual earning capacity for 2 days per week after 1 July 2009.
As to the second element of the defendant's submission for a discount to be applied, namely a suggested doubt over the continued availability of work over the period in question, namely, that the plaintiff may not have had continuous work available to him over the period commencing from the time of his injury until the present time, the length of that period, of almost 11 years that has passed since the subject accident, requires that this submission be given some consideration concerning a balancing of some imponderable factors.
In the period surrounding and since the plaintiff's accident, and concerning a good deal of the time since the plaintiff's accident, it was and is well known in the community that there has been an economic boom in the mining industry. There is evidence that in this State, there is still work to be had of the kind the plaintiff was fit for and engaged in, in that industry in rural New South Wales, if not elsewhere, as well: Exhibit "D", Tabs 25 - 31, pp 592 - 601.
Also in support of the plaintiff's claim for economic loss is the plaintiff's evidence of his enthusiasm, adaptability and liking for the work, which was well paid, and because, it was at least in some part, work of a fly-in and fly-out in nature, which meant that the plaintiff had available to him the benefit of consecutive 10 day periods off work to enable him to be at home with his family, albeit at the cost of being on duty and away from home for 20 consecutive days. He was temperamentally suited for that type of work, and it was economically advantageous to him.
Those factors weigh against any significant discounting of damages for past economic loss.
Weighed against those considerations, and in favour of the defendant's argument, is the possibility that the work in question may not have been available continuously, either in the employ of the same employer, or there may have been some gaps in the plaintiff's work continuity, and therefore his past earnings.
Having considered the imponderable matters of that kind, I assess the appropriate discount on the plaintiff's damages for past economic loss at 10 per cent of the agreed net comparable calculation, which, when rounded down from $584,220, yields the sum of $525,000.
I therefore assess the plaintiff's damages for net past loss of income in the discounted and rounded down sum of $525,000.

Fox v Wood

The plaintiff has had tax instalments deducted from his payments of weekly compensation. The total of those payments are claimable as an element of his damages assessment: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. Those payments have been agreed in the total amount of $47,239.40 and I therefore assess the plaintiff's Fox v Wood damages in the amount of $47,239.40.

Future economic loss

On behalf of the plaintiff, it was submitted that his claim for future economic loss should be assessed in the amount of $979,832. That submission was based on the underlying premise of a projected continuing loss of $1290 per week net over 33 years at 5 per cent (x 893.6) less a discount of 15 per cent on account of potential adverse vicissitudes.
In contrast, the defendant submitted that damages for future economic loss should be assessed at $300,390. That submission proceeded upon the basis of a projection of $650 per week net to age 67 years, less a discount of 30 per cent.

Loss of earning capacity and likelihood of financial loss

In order to obtain an award for future economic loss, the plaintiff must first establish that he has sustained a loss of earning capacity: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10]. Secondly, he must establish that any such loss of earning capacity is likely to be productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [4], [7].
In my assessment, the preponderance of the acceptable medical and medico-legal evidence, as has been reviewed at paragraphs [323] to [328] above, indicates that the plaintiff has been rendered unfit for his pre-accident employment, or similar employment, to the extent that his earning capacity has effectively been totally destroyed. He has therefore been effectively rendered unemployable.
It is clear from the foregoing finding, that the plaintiff has suffered financial loss as a result of his injuries.
My findings at paragraphs [323] to [328] indicate that the plaintiff's case fulfils both those cited criteria concerning loss of earning capacity productive of financial loss.
The principle for assessment of future economic loss to be applied is that where it is possible to proceed to a calculation of projected future loss, that approach, if justifiable, is to be preferred to a more generalised lump sum or buffer approach: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].
In this case, when awarding damages for future economic loss, I must first be satisfied that the assumptions made about the claim for the plaintiff's future earning capacity or other events on which this aspect of the award is to be based, accord with the plaintiff's most likely circumstances, but for his injury: s 126(1) of the MAC Act.

Most likely circumstances but for the injury

I find that the plaintiff's most likely circumstances but for his injury, on 15 May 2007, were that: 1. He would most likely have remained in reasonably good health, subject to the normal vicissitudes that would face any individual in daily life, who was engaged in work, including heavy work, and work that involved travel; 2. In the relative short term, he would most likely have experienced a recovery from his soft tissue injury sustained at work on 7 May 2007. There is no evidence to suggest a reasonable basis for a different conclusion; 3. In the meantime, whilst the plaintiff would have been recuperating from his 7 May 2007 injury, he was still employed, and in receipt of worker's compensation payments which would most likely have ceased when he would have regained his fitness for full work duties in a relatively short period of time; 4. The plaintiff would most likely have pursued work with his pre-accident employer, or in equivalent work. He was assessed as being medically fit and suitable for that work. It was not intellectually challenging or difficult for him, and it provided an attractive financial incentive for him to enable him to support his family; 5. There is evidence that the availability of such work as a Driller's Assistant remains currently available, at a level of remuneration that would have been attractive to the plaintiff given his limited educational achievements and skills set. That work offered the plaintiff an opportunity to learn and reinforce his skills on the job; 6. The effects of the plaintiff's accident on 15 May 2007 have permanently eclipsed and overtaken any temporary effects of the plaintiff's 1 May 2007 accident;
In my opinion, the above-stated assumptions about the plaintiff's most likely circumstances justify the approach of projecting a weekly net sum on the 5 per cent discount tables, but with a just discount to allow for vicissitudes, to calculate the plaintiff's damages for future economic loss.

Projection

The assumptions upon which the award for the plaintiff's future economic loss assessment are identified at paragraph [379] above: s 126(3) of the MAC Act.
The projection of $1100 per week at 5 per cent over 33 years (x 855.7) yields $941,270.

Adjustment

The projected amount for the plaintiff's future economic loss as identified in paragraph [382] above must be adjusted by reference to the percentage possibility "that the events concerned might have occurred but for the injury": s 126(2) of the MAC Act. That adjustment must include a consideration of the possibility that the effects of the plaintiff's 1 May 2007 injury may have taken a little longer to resolve, a factor, which on the evidence, I consider should have negligible effect.
For the reasons outlined in the foregoing paragraphs, I consider that the relevant percentage by which those damages should be adjusted is 20 per cent. Applying that adjustment to the projected amount of $941,270, the adjusted amount is identified as being in the sum of $753,016.

Award for future economic loss

I therefore assess the plaintiff's damages for future economic loss in the discounted projected amount of $753,016.

Past loss of superannuation

the plaintiff's damages for past loss of employer funded superannuation benefits are assessed at 11 per cent of the amount assessed in respect of past economic loss of $525,000, in the sum of $57,750.

Future loss of superannuation

the plaintiff's damages for future loss of employer funded superannuation benefits are assessed at 11.53 per cent of the amount assessed in respect of past economic loss of $753,016, in the sum of $86,822.

Future treatment

The plaintiff's claim for future treatment expenses was stated to be the subject of a general agreement in respect of particular items, in the amount of $135,918: MFI "7", par 27; T161.1. When examined, that agreement was ultimately shown to include a mathematical error, which will shortly be explained, and it did not extend to the cost of the plaintiff's future incontinence supplies.
Some elements of the plaintiff's claim for future out-of-pocket expenses have been agreed: MFI "6", par 140. Those agreements related to assessments for future general practitioner expenses in the amount of $15,567, psychologist's expenses in the amount of $15,567, psychiatrist's expenses in the amount of $15,505, and medication costs in the sum of $30,040. Those amounts total $76,859. The agreed amount was mistakenly submitted to be $135,918. However, that sum was erroneous as it incorrectly included the agreed amount of $47,239.40 in respect of Fox v Wood damages. The correction of that error will be reflected in my findings.
The agreement as to future treatment expenses did not include an allowance for the cost of two weeks hospitalisation, as suggested by Dr Klug, namely, $8000 per week or $16,000: T138.31; T139.40. Whilst Dr Klug agreed the outcome of the proposed treatment was speculative, I consider that it is nevertheless reasonable to allow for the cost of that treatment, as it may provide the plaintiff with a degree of benefit.
The agreement for future treatment expenses did not include an allowance for the plaintiff's future incontinence supplies, which I assess will continue at an average cost of $42 per week: T160.39; T110.19 - T110.43. The projection of $42 per week on the 5 per cent tables over the plaintiff's remaining statistical life span of 51 years (x 983) yields the undiscounted sum of $41,286.
The amounts that are agreed, as correctly tallied, total $76,859, to which the hospital expenses of $16,000 should be added, to total $92,859. That amount does not require discounting as those amounts are agreed in respect of the sum of $76,859, and the amount of $16,000 is likely to be a short term expenditure.
I consider that the projected amount of $41,286 for future incontinence supplies should be discounted by 20 per cent on account of vicissitudes as outlined at paragraphs [333] to [338] above. This yields a discounted amount of $33,028.The amounts of $92,859 and $33,028 total $125,887.
I therefore assess the plaintiff's damages for future treatment expenses in the rounded down amount of $125,887.

Past out-of-pocket expenses

The plaintiff's claim for past out-of-pocket expenses, including medical, hospital, rehabilitation and allied expenses, which appear in large part to have been paid by the worker's compensation insurer, has been agreed in the amount of $200,993.48, of which the reimbursement due to Medicare is $5444.20: MFI "9": T160.8 - T160.9. I therefore assess the plaintiff's out of pocket expenses in the sum of $200,993.48.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $280,000 (b) Past loss of income $525,000 (c) Fox v Wood $47,239.40 (d) Future economic loss $753,016 (e) Past loss of superannuation $57,750 (f) Future loss of superannuation $86,822 (g) Future treatment $125,887 (h) Past out-of-pocket expenses $200,993.48 Total $2,076,707.88

Apportionment for the plaintiff's contributory negligence

The plaintiff's damages assessment of $2,076,707.88 needs to be apportioned to take into account the agreed discount for the plaintiff's own contributory negligence, namely, 20 per cent. This yields a judgment amount in the plaintiff's favour in the amount of $1,661,366.20.

Disposition

There will therefore be a judgment in favour of the plaintiff in these proceedings in the apportioned sum of $1,661,366.20.

Costs

The consequence of the above findings is that the plaintiff is entitled to have the costs he has incurred in these proceedings paid by the defendant on the ordinary basis, unless a party can demonstrate an entitlement to some other order for costs.

Orders

I make the following orders: 1. Verdict for the plaintiff in the assessed amount of $2,076,707.88; 2. After applying the agreed apportionment of 20 per cent on account of the plaintiff's contributory negligence, judgment for the plaintiff in the amount of $1,661,366.20; 3. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 4. The exhibits may be returned; 5. Liberty to apply on 7 days' notice if further or other orders are required.

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: 28 March 2018

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