Young v Rothin [2009] ACTSC 71

On 11 December 2002, James Best Young, the plaintiff, was injured when a motor vehicle collided with the motor vehicle which he was driving. As a result, Mr Young has commenced this action for damages for personal injuries arising from the motor vehicle accident. Liability was admitted by the defendant and the matter proceeded as an assessment of damages only.
Mr Young was at the time of the accident 43 years old. He is a self employed company director of a number of companies that undertake varied work, particularly electrical and communications work, project management, value management and services facilitation.

3. Mr Young is now 50 years old. Born in Scotland, he has a brother in Scotland. He went to school in Scotland; he won a bursary to a private school and then commenced an apprenticeship with a company of electrical engineers. He completed his apprenticeship and became an electrician in 1979.

4. He continued to work as an electrician but was promoted to the position of supervisor and then project manager. He became superintendant of works at the Strathclyde Council.

5. A list of Mr Young's significant qualifications was tendered showing that he had obtained a number of certificates and statements of attainment, including as a Workplace Trainer, and a Diploma of Project Management from the University of New England. He gained some of the certificates from specific corporations licensing him to install and certify the systems of those companies.

6. He clearly was keen on his work and undertook to extend his knowledge and re-educate himself.

7. In 1987, he migrated to Australia, initially working at the Dell Power Station in Muswellbrook. He qualified as an electrical mechanic in Australia in that year.

8. In July 1987, he came to Canberra and commenced working with a firm called Kilpatrick Green. In 1988, he commenced work as an electrician for another business, Kennedy and Taylor. During this time, he worked mostly in Parliament House.

9. In 1991 he qualified as a certified communications installer for the American Telegraphic and Communications Company. He worked in data communications installing the cabling infrastructure for computer terminals.

10. During this time, he established a particular interest in promoting Scottish culture. He became Chairman of a Pipe Band which was organised through the Burns Club and which made CDs that he (and, no doubt, others) sold to raise money to help support school children interested in the pipe band.

11. He also set up a link with bands in Scotland, such as the Shotts and Dykehead Pipe Band, and encouraged members to migrate to Australia and to join his band. His band would also send members to Scotland to play with bands there. The band had similar arrangements in Canada and was working towards an arrangement in South Africa. Mr Young was clearly quite involved in these arrangements. He set up what he called a college, training the band members on Saturday mornings and Thursday evenings.

12. In 1994 he and his wife adopted his son from Taiwan and in 1997 adopted his daughter from the same country.

13. In 1995, Mr Young made a claim for workers' compensation arising out of an injury to his lower back caused by stretching to get some files and picking them up while at a bad angle. He received physiotherapy for this injury and does not remember having to take any time off work for it. He reported that the treatment fixed this problem with his back.

14. In 1996, he undertook some contract work with Minesco Industries Pty Ltd, ceasing that work in May 1997. He commenced workers compensation proceedings against the company on the basis of stress caused by harassment he suffered at the hands of senior staff in the company. The proceedings were settled. He had a number of consultations with a clinical psychologist, Mr Leigh Nomchong. He stated that he recovered completely from the stress.

15. He then worked for a company, Stevenage Pty Ltd, a company in which he had apparently a joint interest. His co-owner took some money to which he was not entitled and this caused Mr Young much stress. He was referred again to psychologist, Mr Nomchong, and had to take time off work. He took some time off and Mr Nomchong reported improvement.

16. He undertook further education, gaining some of the certificates mentioned above, including in Workplace Training. He also commenced a degree in Value Management at the University of Canberra.

17. In 1999, he registered a company called Celtic Connections ACT Pty Ltd (Celtic Connections). He had earlier, in 1993, registered another company called Relikan Pty Ltd and later he changed its name to Face Value Solutions Pty Ltd (Face Value).

18. He had a co-owner in Celtic Connections, but bought him out after the accident.

19. Face Value engaged in facilitation and some value management and project management. It had no employees other than Mr Young.

20. Through Celtic Connections, he undertook electrical and communications work. He employed four people, who were qualified in both areas. In this work, he had to install cables on building sites and in offices. It involved him getting the cables into ceilings, down walls and down shafts.

21. In addition to his Scottish cultural interests, Mr Young has played soccer since he came to Australia until the accident. He played for a local team, training twice a week and playing at the weekends. He also coached a women's soccer team in Tuggeranong.

Mr Young lives in Jerrabomberra with his wife and two children in a house that he had started to build prior to the accident but for which he has still not received the final certificate of occupancy.

On 11 December 2002, Mr Young was driving his Toyota Hilux vehicle along the Barton Highway towards Canberra with a work colleague in the front passenger seat. They approached the large roundabout at the intersection with Gundaroo Road when, while stationary at the roundabout, his vehicle was struck from behind by a vehicle being driven in the same direction by the defendant.
Mr Young's head struck the steering wheel and he was briefly rendered unconscious. On regaining consciousness, he turned the engine off, checked his passenger and then looked in the rear view mirror and saw the driver of the other vehicle, the defendant, still sitting in the car holding his chest. Mr Young alighted from his vehicle to check on the other driver, who said he was fine. He returned to check, again, on his passenger, who was getting out of the car and who also stated that he was fine. By this time ambulances had arrived and the paramedics assessed Mr Young but he did not receive any significant treatment at the accident site. The paramedics told him that he should see his general practitioner or go to the hospital. Police officers had also turned up and Mr Young spoke with them.
He dropped his passenger off at home and later that day had to visit his general practitioner.

Mr Young recounted that, immediately after the collision, he was already in pain: his neck and head were sore and his left arm was sore from holding the steering wheel at the moment of impact. He also remembered that his back was a bit sore, but that he was 'pumped up with adrenalin'. He said "I was in pain, I just didn't understand really where, but I could feel it all".
That day, Mr Young attended Dr A Meyer, his general practitioner, at Chisholm, who diagnosed a soft tissue whiplash injury. Dr Meyer noted in his report dated 3 November 2005 that "Mr Young complained of pain in the neck, back, shoulders, arms and hands and of headache. On examination his neck and spinal movements were restricted to about 40% of normal by pain. Straight leg raising was to 60 degrees". In evidence, Mr Young also mentioned he had pains in his left groin and leg and he described the pain in his neck and shoulders as "...murder...I just felt disorientated, I just felt in a strange place". Dr Meyer prescribed paracetamol and rest.
Over the subsequent five days Mr Young's symptoms steadily increased, so he returned to Dr Meyer who referred him to a physiotherapist. On 18 December 2002, he attended the physiotherapists, Messrs Carole and Heather Bond, and continued to see Heather Bond on a regular basis for quite a considerable period of time. He also undertook some hydrotherapy. These treatments helped him relax and relieve his body.
He continued to see Dr Meyer throughout 2003 on a regular basis. His treatment continued to consist of physiotherapy, hydrotherapy and medication. His medication consisted of Prothiaden once a day, Neurontin three times a day and about 12 Panadeine Forte a day. X-rays of his neck were taken, however they were reported as normal.
Mr Young complains of ongoing neck, shoulder and back pain since the accident, and ongoing, constant headaches, together with depression. These are claimed to have diminished his attention span and his concentration. Although he has resumed working in project and value management, he says that he is only earning a quarter of his pre-accident potential and that his day to day activities have been affected by the accident.

In March 2003, Mr Young informed Dr Meyer that he was back at work but it was only for limited hours and very restricted duties. On 5 May 2003 he presented to Dr Meyer "...complaining of neck pain and tingling in the left hand, weakness of the left arm and pain in the left side of the head extending into the shoulder and arm". Dr Meyer referred him to Dr Garth Eaton, a rehabilitation specialist, for opinion and management.
The plaintiff saw Dr Eaton for the first time on 19 June 2003, when he prescribed psychological counselling and a six-week intensive treatment course at the Canberra Injury Management Centre (CIMC) in Civic. The CIMC is a multidisciplinary centre, which provides behavioural treatment, psychological counselling, physiotherapy, exercise therapy and a number of other treatments. The course to which Mr Young was referred provided education about how pain works and how it manifests, in order for patients to better manage their pain. Mr Young attended this course for one hour every week for six weeks.
In December of 2003, after completion of the course, the CIMC reported:

Mr Young actively participated in the programme and reported applying the strategies particularly those related to the pacing of activity. He has a greater understanding of his condition and subsequently Mr Young reports feeling more confident in his ability to manage along with being able to gradually increase his general activity level. His use of relaxation exercises has also been beneficial in the management of his symptoms.

Mr Young has engaged well in individual sessions, displaying an eagerness to address his symptoms. He participates actively in sessions and reports active application of strategies in between sessions.

... Mr Young is likely to benefit from further individual psychological treatment to address his symptoms of PTSD... In the absence of further treatment, it is my professional opinion that many of his symptoms would persist sufficiently to complicate his experience of pain and physical rehabilitation.

34. Mr Young continued to work at the gym at the CIMC and was appointed a specialist trainer, Mr Tony Robb. He used the Swiss ball and undertook exercises that were prescribed for him. They were to be undertaken every day as many times as possible and included stretching exercises to build up the muscles in his back and to relieve the strain on his neck.

35. This provided considerable improvement to Mr Young's condition and he was complimentary and enthusiastic about it.

36. He also saw a psychologist at the CIMC, Ms (now Dr) Belinda Barker. He met with her initially about once a month and, again, he found her treatment very helpful. In particular, she addressed issues of memory loss, pain management and anger management.

37. The treatment provided meant, as he described to me, that he had "improved out of sight, there was no doubt".

38. More recently, he has built up a gym at home and exercises there, though he sees Mr Robb about every six months.

39. He has kept in contact with Dr Barker. His attendance there, however, has been less regular. For a period he was not seeing her, but he told me that, more recently, he has been seeing her once a week and currently about once a month.

Mr Parker, who ably represented Mr Young, submitted that every report received from a doctor stated that Mr Young has tried exceptionally hard at his rehabilitation. In Dr Eaton's report of 23 April 2005 he states "Mr Young has been very motivated and has enthusiastically embraced all treatment made available to him and certainly has been a conscientious participant in all the programmes at the [CIMC]" and Professor Hall's report of 3 February 2004 states "Mr Young is most conscientious in his attempts to obtain adequate treatment and to get his life back together again ... [h]e is already improving considerably and his positive attitude is a great help".

41. Mr Young complains of a number of continuing disabilities, despite the treatment he has received and his response to it.

42. He did say in evidence before me that he felt that he had improved as much as he was going to improve - "I've gotten to the stage now where I feel as if I'm as good as I'm going to get ... there's no doubt I've improved ... [but] I've gotten to the stage where there isn't anything left. I can't really do much more". Despite this, he appeared optimistic, later saying "I don't propose to give up trying, but ... there comes a point where I feel I've done all I can do, but I don't propose to give up it's not in my nature".

43. That view had some support from the medical and other experts who examined Mr Young but it was not the predominant view, though such prognosis has always to be treated with caution, both as to the prospects of further improvement or no further improvement.

44. He continues to take three or four Neurontin a day, a drug to relieve nerve related pain, one Prothiaden, a drug used to treat depression, and a couple of Panadeine Forte, a relatively strong analgesic. He can take up to about 100 Panadeine Forte a month, though the dosage has decreased over time.

45. He experiences pain in his left shoulder and in his left arm. He gets tingling in his fingers and pains in the ear. He experiences frontal headaches and pain in his thoracic spine. He also experiences pain through his left groin and his left leg.

46. He has difficulty concentrating and this led him to give up certification work. He also has some difficulty with his memory.

47. I refer to the effect of his disabilities on his work and private life below.

48. He put on weight after the accident. He normally weighed about 98-100 kilos before the accident but his weight increased to 127 kilos. His weight later dropped to about 92-93 kilos and is now at about 104-105 kilos.

49. A number of activities can bring on pain. These include a number of household duties, dealt with below.

50. Mr Young has been diagnosed with depression and other mental challenges. These are more fully dealt with below.

51. Mr Young was described by his wife as ambitious, determined and hard-working. She described his as a family man, "family oriented". He was a good father and played with his children. He was especially attached to them for, as Mrs Young said in evidence, "we waited a long time for our children and so they are and they were a priority for him". She described their relationship as "a team".

52. The accident had a significant effect on this. He became irritable and prone to bursts of anger. He described himself shouting at his wife and children "for no apparent reason". He became impatient with them and, indeed, yelled at the children enough to frighten them.

53. He also found himself cutting off contact with his friends and those who were part of his "support structure". Some of this was connected with feelings of shame that he could not work out.

54. More recently, he has improved. He has become more active with the children, helping them with their homework and sitting and talking with them, especially his son. In June 2007, Mr Young took the family on a holiday to Scotland. He has become more engaged with his family.

55. He has, however, ceased his involvement with the pipe band and has no involvement with it at present. He also stopped playing soccer and coaching the women's soccer team. He clearly is unlikely to return to playing soccer.

56. In about March 2003, Mr Young attempted to return to work. This, however, was not immediately successful and he had "a gap" until about September 2003.

57. He tried to get back to electrical work but anything that required him to reach above his shoulders or to stretch his neck or raise his arms caused sufficient pain so as to be unbearable.

58. He tried testing and inspecting electrical work under relevant government building regulations, combined with undertaking any necessary remedial work and, if appropriate, certifying it. He was, however, only able to do this for a few months because his memory loss and lack of concentration meant he could not adequately carry out the work.

59. He also tried to return to data cabling work but, as was clear from, in this regard, the almost unanimous view of the medical experts, he was not able to carry out this work.

60. Instead he started on what he described as "paperwork". This was sedentary work principally for Face Value. The work was project management. He started off at about an hour a week and built it up gradually until it became 20 hours a week in about 2004.

61. He did start to build up to 30 hours, but this was not possible for him to sustain.

62. He gave evidence that in 2004 his company entered into a contract with ACTTAB Ltd (ACTTAB) for consultancy services. Under the contract, he was to facilitate the design, documentation, supervision and delivery to completion of communications for the new head office of ACTTAB and some other services. Mr Young was, under the contract, the specified personnel to do the work "unless otherwise agreed". The contract actually tendered, however, was undated but was accompanied by letters suggesting that it was signed in late August 2006. The term specified in it was stated to commence on 1 January 2006. Mr Young said that his work pre-dated the written contract and that, despite the expressed term, he had been working under those terms since 2004.

63. The contract provided for a lump sum of $110,000 including GST for the core consultancy services paid by instalments, the last paid in May 2007, plus $192.50 per hour (being $175.00 plus $12.50 GST) for additional services provided. This work was predominantly done in the ACTTAB Building. The hours were flexible but specified up to a maximum of 20 hours per week unless otherwise specified.

64. There was some cross-examination as to the hours of his work. I found that quite confusing. It appears from this cross-examination that Mr Young was paid for travelling time also at the hourly rate. This amounted to an hour or two a day.

65. This may explain why the hours of work for 2006 shown in Ms A McIntyre's report shows approximately 30 hours per week on average. In 2007, however, the hours worked fell to below 15 hours per week on average. To be paid for travelling to and from work is an unusual arrangement. It does not appear to have continued to any extent into 2007 or 2008.

66. In this work, Mr Young was required to co-ordinate consultants, including architects and engineers, draft and review documents, discuss technical issues with consultants and report to ACTTAB. He also reviewed the lease agreement for ACTTAB.

67. He employed staff to assist. He became supervisor to a young project manager. He also employed other people from time to time.

68. Later he established a further company called Face Value Solutions ACT Pty Ltd. The precise purpose behind this was never made entirely clear.

69. Since the accident, Mr Young has had a number of offers of employment. This shows that he certainly had prospects of work were he able to take them up.

70. He had an oral offer of employment from the boss of a friend, Mr Kevin Windross, for a company based in Perth. The work, however, required a basic 60 hours per week, beyond what he was capable of doing.

71. He was offered "10 years work" in project management for John Hindmarsh, whom I understood to be the very successful Canberra builder and developer. Again, the likely expected hours prevented him taking up the offer.

72. He was also offered work by a friend of his to work in Newcastle. The offer came from a friend, a Mr Stevens, of the company McLeod & Stevens Pty Ltd. Again, it was a full-time position which Mr Young felt unable to accept because of his disabilities. Mr Young was cross-examined at some length about the circumstances of this offer. I accept that Mr Young, perhaps through the shame earlier referred to, did not disclose to Mr Stevens the extent of his disability, at least until he rejected the offer.

73. In evidence, Mr Young indicated that he felt that the ACTTAB job was getting too onerous and that he planned to end it in June 2008.

74. He was looking for other sedentary work which he could manage. This would involve a co-ordination role, including group work where he does not have to be the leader. He was confident that such work would be available. He planned to work about 20 hours per week, though clearly more if he was able.

75. Each party tendered without objection a bundle of medical reports. None of the authors were required for cross-examination and none gave oral evidence. This made it a little difficult to resolve issues where there was a conflict. Some of these issues could be resolved by the way the case was conducted.

76. Mr Young tendered reports from his treating medical personnel as well as some medico-legal reports. He also tendered some reports about the prior medical interventions he had experienced. Save to note them, and that the relevant practitioners dealing with his present disabilities and symptoms were made aware of them, I do not analyse these earlier reports as they do not appear to add much to the issues I have to resolve.

77. Dr Eaton is an occupational physician and Mr Young was referred to him in 2003 for assessment and possible assistance with the management of his medical condition. Nine reports of Dr Eaton were tendered, some were not much more formal than repetitions of earlier reports.

78. Dr Eaton recounted a history consistent with the events recounted to the court by Mr Young. He diagnosed Mr Young from the history, symptoms reported by Mr Young and his examination as having suffered a severe whiplash injury to the spine with multiple soft tissue injuries and which quite severely affected Mr Young both physically and psychologically. He indicated his view that Mr Young suffered from post-traumatic and cervicogenic headaches, associated symptoms of anxiety and depression and persistent neurogenic spinal pain.

79. He emphasised the need for attention to Mr Young's psychological health, a matter subsequently attended to at the CIMC and with counselling provided by Dr Belinda Barker.

80. He formed the view that Mr Young's present condition was not related to the previous medical matters which had been reported and, on the balance of probabilities, opined that his present condition was both directly and consequentially related to the injuries sustained in the motor-vehicle accident of 11 December 2002.

81. Dr Eaton expressed the opinion that Mr Young would not be able to return to his job as an electrician which involved the laying of cable and associated work.

82. By 2004, Dr Eaton reported that Mr Young had made "tremendous gains" with his treatment, but noted that with increasing hours of work his pain and discomfort increased and that his improvement had "plateaued".

83. Dr Eaton reviewed Mr Young's condition again in 2005 and noted that his maximum hours of work were between 15 and 20 hours per week. Mr Young, he reported, had tried to extend these hours but had found that it was not possible. His condition had stabilised and Dr Eaton did not expect a significant change in the short to medium term. He noted that Mr Young was motivated to improve and enthusiastically embraced all treatment offered and provided. He was a conscientious participant in all the programmes he was offered at the CIMC. He was also of the view that Mr Young's condition may improve over time.

84. The 2006 review by Dr Eaton was similar, but he did note that Mr Young had tried extremely hard to improve.

85. In 2007, Dr Eaton gave a quite similar account in his review. Despite attempts to increase his working hours, Dr Eaton reported that pain was still an inhibitor to this. He noted Mr Young's consistent report of symptoms and felt that Mr Young's maximum working capability was 20 to 25 hours per week. He was also of the view that psychological factors were significant.

86. Dr Eaton's views are significant for he is the specialist with the longest care of Mr Young. He had the longitudinal experience to assess his improvement and the adequacy and accuracy of his symptoms and their report.

87. Physiotherapist Heather Bond saw Mr Young on 18 December 2002, shortly after the accident and then provided some continuing treatment.

88. Her report set out a history consistent with that given in evidence by Mr Young. Dated in 2003, the report made it clear that Mr Young's condition at that time, described in the report as consistent with the evidence given of the cause of his condition, had not then stabilised. Ms Bond did not prognosticate on his likely incapacity, though her view at that stage was that his condition would improve and had not stabilised.

89. She described the treatment provided but otherwise the report does not assist in the critical issues in this case.

90. Mr Young attended the CIMC in late 2003 on the recommendation of Dr Eaton. Initial assessment reports were provided by Ms Belinda Barker, psychologist, and Mr Jac Cousin, physiotherapist.

91. Ms Barker diagnosed a Pain Disorder due to a medical condition and psychological factors and Post-Traumatic Stress Disorder and recommended that Mr Young participate in a cognitive behavioural pain management programme.

92. Mr Cousin made a "provisional diagnosis" of chronic neurogenic spinal pain and cervicogenic headaches. He recommended, in addition to a psychological assessment (which, presumably, Ms Barker was providing), manipulative physiotherapy to begin a self-exercise programme and a pain management programme.

93. A further report was prepared following an initial six week cognitive behavioural management programme. It reported that Mr Young had actively participated and that it had some success. Mr Young had also attended individual treatment to address pain management, injury adjustment and symptoms consistent with Post-Traumatic Stress Disorder.

94. Mr Young, it was reported, "has engaged well in the individual sessions, displaying an eagerness to address his symptoms". He was said to be responding well, gaining confidence in managing his pain, greater engagement with his family and increasing participation in work related capacity.

95. It recommended further individual psychological treatment.

96. A further report in early 2004 stated that Mr Young had made "reasonable physical progress with increased functional capacity and reduction in reported pain". The prescribed exercises were said to be beneficial but, despite the significant gains, there was still a need for ongoing psychological treatment.

97. Dr Corry is a consultant physician in rehabilitation and pain medicine. He was approached for a specialist medical assessment and report first in 2005.

98. Dr Corry recounted the history he had been given which was consistent with the evidence given. Under a heading, "[C]ausation", Dr Corry reported:

[t]he initial onset of pain discomfort and stiffness in the neck and shoulders is directly associated with whiplash type trauma sustained in a motor vehicle accident on 12 [sic] December 2002. The development of more severe and disabling symptoms is reported to have occurred progressively as is the usual history in soft tissue injury. Recent evidence is that reduced activity, and restriction of movement either because of pain or fear of further damage or injury are major factors in pain and disability becoming chronic.

99. He found Mr Young permanently unfit to return to his pre-accident general electrical and cabling work. He also felt that general activities such as walking, carrying and lifting and handling as well as working in sustained postures such as sitting at a computer would not cause an aggravation of the underlying pathology or produce premature degenerative changes, but that the capacity to perform such activities was dependent on pain tolerance and skills in pain management.

100. The symptoms he noted were consistent with the motor vehicle accident. He also noted that "[e]pidemiological studies have documented that in the order of 14 percent of patients [following motor vehicle trauma] will continue to have recurrent disability".

101. In a later report dated in 2006, Dr Corry confirmed a diagnosis of persisting chronic neck and left shoulder pain with more severe lower back pain. He noted Mr Young's report of a reasonably high level of dysfunction, limiting work capacity and affecting psychological function with increased stress levels and family strain.

102. He found Mr Young had shown good determination and motivation to participate in treatment and to improve. His view was that there may still be room for further improvement and made suggestions of a remedial exercise programme.

103. His view was that there seemed to be no reason why he could not perform light sedentary work on a full-time basis in due course.

104. A further report from Dr Corry in 2007 was also tendered. He reported that there had been no change in the distribution or intensity of the pain Mr Young was experiencing. Mr Young reported persisting depression which increased in the latter part of 2006.

105. Dr Corry's diagnosis was of "persisting and moderately disabling neck and shoulder pain consequent to a low velocity rear end motor vehicle collision on 11 December 2002." He noted a diagnosis by Dr Gytis Danta (see below at [136]) of ulna neuritis from the elbow. He diagnosed also low grade persisting pain in the back left buttock and leg and a Generalised Anxiety and Major Depressive Disorder.

106. Dr Corry's report of causation on this occasion was somewhat more cautious. He reported:

[i]t is clear that Mr Young's symptoms and disability are multifactorial in origin and it is difficult to isolate those aspects of his disability that are specifically consequent to whiplash trauma sustained in the motor vehicle accident on 11 December 2002. There are a number of significant pre-existing factors that I have not known of previously and that are probably of some causal relevance.

107. He referred to the earlier low back injury and noted that "[i]t has been demonstrated that the best predictor for the development of low back pain is a history of low back pain". He also referred to the depression Mr Young experienced in 1995 and again in 1997, for which he received treatment from Mr Nomchong.

108. Nevertheless, Dr Corry confirmed in his diagnosis the symptoms of chronic neck and left arm pain and noted the slight but gradual improvement since 2005. His view was that low grade disability would persist indefinitely, "fluctuating in severity in association with activity levels and his general health and fitness".

109. Mr Young, Dr Corry found, remains permanently unfit for his pre-accident electrical work and has been able to work in a light sedentary job for 20 to 25 hours per week but not more. He seemed to suggest, though he did not say so, that had the efforts to increase his work been supervised and graduated, they may have been more successful.

110. Dr Meyer is Mr Young's general practitioner to whom he first reported his symptoms after the accident. Dr Meyer had taken over conduct of his care when his previous general practitioner, Dr Adam retired. Again, the history given was consistent with Mr Young's evidence to the court. Perhaps significantly as the first medical person to whom Mr Young reported medical symptoms, Dr Meyer stated that he had been told Mr Young hit his head on the steering wheel and that there had been a brief loss of consciousness.

111. Dr Meyer recounted in his six reports the course of treatment. In 2005, he reported that Mr Young was prescribed Prothiaden for his pain, the dosage being increased "with good results". He was also taking Neurontin "with good effect". His prognosis then was for "a slow recovery with the likelihood of some persisting pain and disability in the long term".

112. His latest report was in August 2007 and was a little less optimistic as to the future. It can helpfully be reproduced almost in full:

I reviewed James in early July as requested. I found that his physical condition was unchanged. He continues to suffer headache and neck pains, pain in the left shoulder, arm and hand and low back pain radiating into the left buttock and leg. On physical examination his range of movement and muscle power in the cervical and lumbar spines is reduced by pain. There is no evidence of sensory loss and reflexes are normal. Straight leg raising is to 90 degrees bilaterally.

Over many months of trial and error and with advice from his rehabilitation psychologist, it has been found that he can sustain his usual work duties for about 20 hours per week but cannot manage more than this without suffering an increase in his pain levels. His medication has been carefully adjusted and is now, I believe, at optimum levels. He is not a candidate for narcotic analgesia.

It seems very likely, in my opinion, that he will not in the future be able to exceed 20 hours per week of work. I do not believe that his condition will improve significantly.

113. Dr Veness is a consultant psychiatrist. Mr Young was referred to him by his lawyers for a medical and psychiatric report in 2006.

114. The history given to Dr Veness was consistent with the evidence given before me.

115. Dr Veness diagnosed Chronic Neuropathic Pain Disorder, Chronic Generalised Anxiety State with post traumatic stress features and Chronic Depressive Disorder.

116. Dr Veness briefly explored Mr Young's previous mental history, especially the treatment provided by Mr Nomchong, though he dated that to 1993.

117. Dr Veness also referred to the emotional and cognitive difficulties experienced by Mr Young. He referred to his anxiety and anger as well as the reduction in his concentration, attention span and memory. He recommended ongoing treatment by a clinical psychologist.

118. Dr Veness prepared an additional report in 2007. He diagnosed a Major Depressive Episode and Generalised Anxiety Disorder which, he stated, confirmed his previous diagnosis. He noted that a magnetic resonance imaging (MRI) conducted on 20 February 2007 showed an apparent small vessel ischaemia which, together with the other symptoms, confirmed in Mr Young's case, Dr Veness's view that Mr Young conformed exactly "with a group of patients who have a combination of emotional disturbance, chronic pain and organic brain damage". Dr Veness recommended that such patients "do best" with a combination of psychotherapy, antidepressant drug therapy and good pain management.

119. Mr Sutton is a clinical psychologist who saw Mr Young for a psychological assessment in 2006. In a report dated 2 January 2007, Mr Sutton set out the various tests he undertook and concluded:

1. [v]alidity assessments of malingering, poor effort on memory tests and exaggeration of cognitive or emotional symptoms are intact, meaning he is neither malingering nor exaggerating on tests administered.

2. There is a significant (statistically and frequency) decline in intellectual functions.

3. Verbal memory is generally compromised, especially delayed recall of newly learned information. Encoding of the verbal material is unsatisfactory ...

4. Visual memory is generally better than verbal, and is functional for everyday usage, but still well below expectations.

5. Visuospatial organisation, visuospatial reasoning, pattern perception and spatial memory appear much poorer than expected.

6. Some of the above decline is due to slowed speed of processing information ... some to attentional fluctuations ... and some to an inability to perceive the nature of the problem's solution. The latter is the most cause for concern as it may imply organic, as opposed to fluctuating causes ... In my view, the major cause is due to the just mentioned fluctuating variables, but I would suggest a precautionary scan of the brain be conducted ...

7. His level of pain management is not yet optimal. He will continue to need ongoing support from his Psychologist in ensuring he maintain activity levels, socially and physically ... Emotional issues ... need addressing first.

8. He has a severe Generalised Anxiety Disorder and Major Depressive Disorder: both these disorders are elevated above the pain sample against which he was compared. The former requires ongoing management with his Psychologist ... The latter ... requires anti-depressant medication ... His levels of aggression are unacceptably high ...

9. There is no evidence for a Posttraumatic [sic] Stress Disorder.

10. Functionally, regardless of causation, he is unable to efficiently undertake his previous level of consulting work. It is likely he currently operates off "old learning". His present load of 20 hours is irrelevant as a guide: it is the nature and quality of his work which is compromised, whether it be 1, 20 or 40 hours.

11. He is unable to cognitively focus for any reasonable length of time. He becomes fatigued, adversely affected by increasing headache and other pains. Demanding cognitive focus cannot be efficiently sustained beyond about half an hour.

120. Mr Sutton also prepared a report in which he commented on the report of Dr F H Roldan (see below at [172]-[181]). I do not need to comment in detail on this, save to say that Mr Sutton suggested Dr Roldan "has not empirical evidence on which to base his judgement of Mr Young's neuropsychological functioning" and that he was critical of the "malingering" scale used by Dr Roldan.

121. Mr Nomchong is a clinical psychologist who treated Mr Young in 1996 and earlier. He carried out stress management counselling and cognitive behavioural change therapy with him. As at 8 August 1997, Mr Young required further counselling but he was of the opinion that Mr Young would not suffer any permanent disability and that he would make a full recovery.

122. Mr Nomchong, in a second report in December 1997, reported that Mr Young was making 'good progress'. It confirms the view I formed that Mr Young recovered from the earlier psychological problems he had encountered.

123. I received in the plaintiff's tendered medical reports a letter from Moore Options, an occupational therapy organisation. It gave no information. I do not know why it was included. I read it with a sense of bewilderment.

124. Professor Hall is a consultant physician. He provided a report in 2004 to an insurance company and it was included with the reports tendered by both parties.

125. His report included a history which was consistent with the evidence given before me.

126. His conclusion was that Mr Young had suffered "a classical flexion/extension or 'whiplash' injury and musculo-ligamentous strain to the left side of the neck, the left forearm and, to a lesser degree, the right forearm".

127. In his report, Professor Hall stated that Mr Young's version of the accident was fully consistent with the information provided and that he sustained the injuries reported as a result of the motor vehicle accident.

128. He considered that the prognosis for Mr Young would be a gradual recovery, noting the current improvement.

129. His objective findings were consistent with Mr Young's complaints. He described Mr Young as a straightforward witness. He opined that the motor vehicle accident was a substantial contributing factor to his condition and ongoing disabilities.

130. He recommended continuing hydrotherapy, physiotherapy and home exercises combined with Prothiaden and Panadeine Forte. He asserted that his assessments did not significantly differ from those of Dr Meyer, Dr Eaton and Ms Bond.

131. Dr Saboisky is a consultant psychiatrist to whom Mr Young was referred for an "extended" psychiatric medico-legal assessment in 2004.

132. Mr Young gave Dr Saboisky a history that was consistent with the evidence he gave before me. He also mentioned his prior treatment by Mr Nomchong.

133. Dr Saboisky found that Mr Young suffered from an Adjustment Disorder with mixed features of depression and anger as a result of his physical injury. He rejected the view that his depression was merely an aggravation of his previous experience of it. He found Mr Young fit for half-time work but this was dependent on the type of work.

134. A further report nearly ten months later was in similar terms. His view was then that his inability to work full-time had a physical cause and was not psychiatric. He was unable to assess permanent impairment.

135. Dr Stern was a consultant psychiatrist who assessed Mr Young in 1997. His report is marginally relevant to the case before me. His diagnosis was of moderate agitated depression in 1997. He recommended treatment for six months, his prognosis was for gradual improvement and that there would "probably be no permanent psychiatric condition". This confirmed the view I had formed as I note (at [122]) above.

136. Dr Danta is a neurologist to whom Mr Young was referred in early 2007 by Dr Meyer because of the difficulty he was having with his memory and the neck, arm, chest, back and leg pain. It appeared that Dr Danta may have had a copy of Mr Sutton's report.

137. After taking a history consistent with the evidence given to this court, Dr Danta diagnosed cerebral concussion, neck injury, back injury and ulna nerve lesion, findings that, he said, were quite consistent with the history of injury and Mr Young's presentation.

[s]ince five years have now passed since the injury no further improvement is likely to occur but if he chose to have the treatment suggested, [namely facet joint or nerve root blocks] then improvement may occur and this would have to be evaluated after treatment is given.

139. Dr Barker is a clinical psychologist. She first treated Mr Young while employed as a clinical and health psychologist at the CIMC. Since then she had been awarded the degree of Doctor of Philosophy with a research thesis on the "[i]mpact of psychological trauma on adjustment to injury and management of chronic pain". In 2001, while still working for the CIMC, she established Griffin Psychology with a colleague, where she later treated Mr Young.

140. After the period of work with Dr Barker at the CIMC, he presented at her private practice following the assessments by Dr Veness and Mr Sutton. In all, Mr Young attended 32 times at the CIMC and 19 times at her private practice to June 2007.

141. Dr Barker found Mr Young to be "a genuine informant, a man who values his personal integrity and honesty". She found his presentation and self-report to be internally consistent and that it "matched observations described by other CIMC staff during team meetings and in their clinical notes and was congruent with other documentary evidence". The history she reported was consistent with the evidence given before me.

142. She was fully aware of his prior mental health history. She also set out in detail his pain-related symptoms and impairment and his mood and anxiety-related symptoms and impairment. Again they were consistent with the evidence given before me.

143. She administered a number of tests, mostly at the CIMC. She found that "his history, course [sic] and current complaints are consistent with and clearly directly related to injury sustained in a motor vehicle accident on 11 December 2002 and its associated sequelae". She identified a Chronic Pain Disorder which involved the contribution of both psychological and physical factors. Thus, elevation in reported pain was, in her opinion, likely to be "due to the psychological sequelae of the accident, rather than deliberate distortion."

144. She differed with Mr Sutton in the clinical aspects of Mr Young's presentation, preferring her earlier diagnosis of Post Traumatic Stress Disorder.

145. She noted the opinions of Dr Veness (Chronic Generalised Anxiety State with Post-Traumatic Stress Features), Mr Sutton (Generalised Anxiety Disorder), Dr Saboisky (Adjustment Disorder) and Dr Roldan (moderately severe Adjustment Disorder) and respectfully disagreed, maintaining her own diagnosis as more accurate. She felt that Mr Young's tendency to minimise symptoms and appear strong and in control may have influenced his presentation to these persons and thus their diagnosis.

146. She felt that Mr Young's prognosis was "reasonable with respect to managing his experience of psychological disorder, provided he is able to access ongoing psychological treatment over the short to mid-term." The treatment time-frame was to taper consultations from fortnightly to monthly consultations over six months, then extend to three monthly reviews for at least twelve months. She felt that he may need to re-engage in the future.

147. She also felt that Mr Young might sporadically increase his working hours above the current level, but that this would not be sustainable for any significant period.

148. Dr Mastroianni is an occupational physician who prepared a medico-legal report relating to the 1995 injury sustained by Mr Young. His report was prepared in 1997.

149. He reported that Mr Young described a constant low back discomfort and leg pain which Dr Mastroianni considered indicated some degenerative disc pathology and/or facet joint dysfunction that pre-existed the injury. He found no abnormality and found Mr Young fit for work with no restriction. He did find Mr Young's complaints were genuine. This confirms my view that prior injury was not significantly involved in his present disabilities. It was also helpful to assess Mr Young's credit.

150. Dr Bodel is an orthopaedic surgeon who prepared a medico-legal report relating to the same incident. His report was also dated to 1997.

151. He diagnosed a musculo-ligamentous strain to the back and neck as a result of the incident in January 1995. He noted that Mr Young remained at work "with flare ups of pain from time to time". He encouraged him to continue his gymnasium programme of regular exercise and passive stretching.

152. He estimated, in a later report, a 5% overall permanent loss of efficient use of his left leg at or above the knee, incorporating an assessment for permanent loss of efficient use of the left leg below the knee including the foot. He also suggested an 8% overall permanent impairment of function in Mr Young's neck.

153. As noted above at [124], Professor Hall's report appeared in both tenders. I need say no more about it here.

154. Mr Young was referred by the defendant's insurer to Dr Burke, a consultant occupational physician, for a medico-legal assessment.

155. Dr Burke reported a history that was consistent with the evidence given by Mr Young to the court. He was told by Mr Young of his head hitting the steering wheel and, apparently, of the loss of consciousness; Dr Burke stated that "[h]e remembered waking up with his eyes rolling in his head".

156. He reported that Mr Young told him that "[t]here is nothing he finds difficult around the house. Any activities that can be problematic include vacuuming and anything involving stretching to heights. He attempted lawn mowing once and this caused significant pain".

157. On examination, Dr Burke found slightly reduced range of movement in Mr Young's head and neck. He also found a somewhat reduced range of movement in his upper limbs.

158. He felt that Mr Young's level of symptoms and disability as described were "somewhat extreme". He thought there were other causative factors "probably psychosocial".

159. His diagnosis was of a "probable soft tissue injury of the thoracic and cervical spine, mild closed head injury, cervicogenic headache, and probably adjustment disorder".

160. He considered that Mr Young "retains a significant work capacity" though he would "experience difficulty" if he were to return to work involving heavy lifting, repetitive lifting or prolonged use of his arms and hands above shoulder height. He could not return to his electrical/cabling work. He felt he had the capacity to return to his duties as a consultant on a full-time basis.

At a glance

Court

Decision date

Before

Source

Judgment (386 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (14)