New South Wales District Court CITATION: McLennan v The Nominal Defendant [2010] NSWDC 28 HEARING DATE(S): 30, 31 March; 1, 2, 3, 6, 7, 8, 9 April; 15, 22, 25 May and 11 June 2009 JUDGMENT DATE: 8 June 2010 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Verdict and judgment for the plaintiff in the sum of $643,607; DECISION: 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required. CATCHWORDS: TORT – negligence – collision between unidentified motor vehicle and pedestrian in a railway car park – no witnesses – all issues contested by Nominal Defendant - EVIDENCE – credibility of testimony – extensive credit challenges by defendant – consideration of expert medical evidence concerning genuineness of plaintiff's claim - DAMAGES – assessment of damages pursuant to Motor Accidents Compensation Act 1999 – considerations for proof of claim for damages for domestic care and assistance pursuant to s 128 Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 LEGISLATION CITED: Motor Accidents Act 1988 Motor Vehicles (Third Party Insurance) Act 1942 Workers' Compensation Act 1987 Uniform Civil Procedure Rules 2005 Angel v Hawkesbury City Council [2008] NSWCA 130 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v St Luke's Hospital Ltd [1969] 2 NSWR 647 Flounders v Millar [2007] NSWCA 238 Harrison v Nominal Defendant (1975) ALR 680 Luxton v Vines [1952] HCA 19 CASES CITED: Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Smith (1998) 28 MVR 165 Nominal Defendant v Swift [2007] NSWCA 56 Oztan v Nominal Defendant (1995) 23 MVR 259 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15 PARTIES: Terrence John McLennan (Plaintiff) The Nominal Defendant (Defendant) FILE NUMBER(S): 2004/00193754; 5365 of 2004 COUNSEL: Mr A J Lidden SC with Mr M Daley (Plaintiff) Mr J Poulos QC with Mr JJ Ryan (Defendant) SOLICITORS: Brydens (Plaintiff) Moray & Agnew (Defendant) JUDGMENT Table of Contents A. INTRODUCTION Nature of the case [1] – [8] Issues for determination [9] – [10] Approach to evaluation of credibility of testimony of the plaintiff [11] – [15] Summary of findings [16] – [18] Assessed heads of damage [19] – [20] Array of evidence [21] – [24] Oral evidence [22] Documentary evidence [23] – [24] B. FINDINGS – BACKGROUND FACTS [25] – [27] Plaintiff's personal background [28] Plaintiff's pre-injury work history [29] – [39] Plaintiff's pre-injury health history [40] – [48] Plaintiff's pre-injury leisure pursuits [49] C. EVIDENCE REVIEW - LIABILITY [50] – [58] Plaintiff's version of events [51] – [54] Plaintiff's account of subsequent events [55] – [56] Inquiries made by plaintiff [57] – [58] D. EVIDENCE REVIEW - DAMAGES [59] – [194] Post-injury work history [60] – [61] Domestic activities [62] Medical and allied evidence review [63] – [194] Reports relating to treatment [64] – [105] Dr Tablante [65] – [83] Dr Rail [84] – [85] Professor Lance [86] – [96] Dr Granot [97] – [100] Reports of medical investigations arranged by Dr Tablante [101] – [105] Reports obtained by plaintiff's solicitor [106] – [121] Dr Conrad [107] – [109] Dr Lorentz [110] – [115] Dr Ellis [116] – [120] Ms Laverack - All Parental Care [121] Reports obtained by workers' compensation insurer [122] – [134] Dr Parameswaran [123] – [124] Dr Basser [125] Dr Vignaendra [126] – [129] Dr Davies [130] – [134] Reports obtained by Motor Accidents Authority [135] – [138] Dr Fitzsimons [136] Dr Ayscough [137] Dr McKenna [138] Reports obtained by defendant's solicitor [139] – [196] Dr O'Neill [140] – [142] Dr Maguire [143] – [146] Dr Delaney [147] – [148] Dr Cromer [149] – [151] Professor O'Rourke [152] – [156] Associate Professor Spira [157] – [189] Ms Barbuto [190] – [196] E. FINDINGS - CREDIT AND LIABILITY ISSUES [197] – [311] Issue 1 – Credibility of testimony [198] – [311] Dr Tablante [199] – [208] Mrs McLennan [209] – [219] The Plaintiff [220] – [311] Issue 2 – Whether the plaintiff was struck by an unidentified vehicle [312] – [338] Issue 3 – Was the driver of the alleged unidentified vehicle negligent [339] – [349] Issue 4 – Alleged contributory negligence [350] – [353] Issue 5 – Due inquiry and search for the identified motor vehicle [354] – [371] F. FINDINGS - DAMAGES ISSUES [372] – [430] Findings as to injuries [373] – [389] Findings as to treatment and rehabilitation [390] – [391] Findings as to mitigation [392] – [395] Findings as to disabilities [396] – [425] Findings as to plaintiff's probable life span [426] – [430] G. ASSESSMENT OF DAMAGES [431] – [558] Past loss of earnings [432] – [460] Fox v Wood [461] – [464] Future loss of earning capacity [465] – [481] Past superannuation losses [482] Future superannuation losses [483] Past domestic assistance [484] – [521] Future domestic assistance [522] – [537] Future treatment [538] – [550] Past out-of-pocket expenses [551] – [557] Summary of damages assessment [558] H. DISPOSITION & ORDERS [559] – [560] Disposition [559] Orders [560] A. INTRODUCTION Nature of case 1. The plaintiff seeks damages for injuries he claims to have received when he was allegedly run down from behind by an unidentified motor vehicle whilst he was on his way to work. At the time he was walking in the car park of the Holsworthy railway station in the early hours of the morning of Tuesday 5 September 2000. 2. No witnesses came forward, and the identity of the vehicle and the driver of that vehicle remain unknown. The plaintiff consequently brought his claim against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 ["MAC Act"]. 3. The defendant treated the plaintiff's claim with great suspicion and the question of the credibility of the plaintiff's testimony loomed as a large issue in the case. The claim was extensively defended in a vigorous and far-reaching contest over 13 hearing days. 4. In disputing the plaintiff's claim, the defendant mounted a multi-faceted attack upon the plaintiff's credit. This attack fell short, but not far short, of alleging actual fraud on the plaintiff's part. There were no concessions made by the defendant during the course of the proceedings, and almost every aspect of the plaintiff's claim was contested, including details of his pre-injury health and background situation, the factual and liability circumstances of his claimed injury, the extent of the claimed disabilities, as well as numerous quantum issues to be decided in the proceedings. 5. On behalf of the defendant, Mr Poulos QC ultimately submitted that the pivotal issue in the case was the credibility of the testimony of the plaintiff. The defendant submitted that the plaintiff's evidence, and the histories given to medical examiners was, at times, contradictory. The defendant also submitted that aspects of the plaintiff's claim were fanciful, and at times, obviously false, thus requiring the veracity of the plaintiff's claim to be assessed in the light of all the evidence. 6. Mr Poulos QC submitted that in the absence of corroboration, the plaintiff's account of matters in issue should not be accepted unless competing versions are assessed were being glaringly improbable. 7. On behalf of the plaintiff, Mr Lidden SC submitted that the overwhelmingly most probable inference to be drawn from the facts relied upon, was that the plaintiff was struck from behind by an unidentified motor vehicle that subsequently left the scene. It was submitted that the circumstances of the incident compelled a findings of negligence against the driver of the unidentified vehicle without any contributory negligence on the part of the plaintiff. Mr Lidden SC pointed to aspects of the evidence that supported the claims made by the plaintiff for damages. Those matters were in strong contention between the parties. 8. The attack on the credibility of the testimony of the plaintiff made it necessary to examine in some detail the issues calling for decision in the case. Issues for determination 9. The material liability issues calling for determination in the proceedings are summarised as follows: Issue 1 : The credibility of testimony; Issue 2 : Whether the plaintiff was in fact struck by an unidentified motor vehicle; Issue 3 : Was the driver of the alleged unidentified motor vehicle negligent; Issue 4 : Was there contributory negligence on the plaintiff's part and if so, to what degree; Issue 5 : Whether the plaintiff has established that the owner and driver of the unidentified motor vehicle cannot be identified after due inquiry and search. 10. The issues concerning the plaintiff's pre-injury situation, the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, the effects on the plaintiff's earning capacity and the assessment of the individual heads of damage claimed, are dealt with in the portions of my reasons that deals with damages. Approach to evaluation of credibility of testimony 11. In essence, the defendant has pointed to the many challenges it made to credibility of the plaintiff's testimony, and to the credibility of aspects of the plaintiff's case, to assert that the plaintiff's case should simply be rejected on the basis of credit. That submission was made on the basis that the plaintiff should not be believed on significant and determinative matters as to his description of the events of the incident he claimed to have occurred, the aftermath of those events and on many aspects of his claim for damages. 12. Those submissions made by the defendant have some considerable force in this case. In some circumstances a conclusion to that effect would lead to the proceedings being disposed of in the manner submitted by the defendant, namely, that because the acceptance of the plaintiff's case is dependent upon the acceptance of the plaintiff's testimony, which has been shown to be unreliable on key matters, the plaintiff's case should necessarily be rejected. 13. That said, for the reasons that I have outlined in that portion of my reasons concerning the credibility of testimony, Issue 1, I consider that although the submission made by the defendant is open on the evidence, and has more than just a superficial attraction, on the evidence available, such a result would be unjust and would ignore important aspects of the evidence that serve to support some of the claims made by the plaintiff. 14. On my analysis of the evidence, I consider that it would be wrong to approach the matter simply by determining that because the plaintiff should not be believed on some aspects of his claim, his entire evidence should be assessed through the prism of suspicion as being tainted by credit findings, as was argued by the defendant, such that the plaintiff's case should be rejected entirely. The submissions made by the defendant makes no acknowledgment of the fact that it is open for me to either accept or reject parts of the plaintiff's evidence as dictated by the results of analysis of the evidence : Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 per Handley JA at 118. 15. In view of the many credit issues raised by the defendant in this case, and because those credit issues span both the liability and damages issues to a degree, it was necessary to segregate the reasons for my credit conclusions into the appropriate categories in which those issues arose for evaluation and analysis. However, simply because I have separated some of the reasons for my conclusions into those separate categories, I should not be taken to have made separate determinations of individual credit issues without having considered the overall inter-relationship of the credit challenges made by the defendant when determining the issues calling for decision. Summary of findings 16. I have found that the defendant's attack on the plaintiff's credit has succeeded in part, but not to the point requiring that the plaintiff's claim be rejected in its entirety. 17. I have found that shortly before 5.00am on Tuesday 5 September 2000, the plaintiff was walking within the Holsworthy railway station car park when he was struck from behind by an unidentified motor vehicle. I have found that the driver of that vehicle was negligent and I have found that such negligence caused the plaintiff to suffer injuries. I have found that the defendant has failed to establish its asserted defence of contributory negligence. I find that due search and inquiry has failed to establish the identity of the owner or driver of the unidentified motor vehicle. 18. I have found that in the collision, the plaintiff suffered a blow to the back of the legs with bruising. This caused him to fall and sustain a blow to the head, grazes and bruising to other parts of his body and limbs. I have found that this incident has left the plaintiff with lasting disabilities that require an assessment of damages. Principal amongst those disabilities are severe, recurrent and debilitating migraine headaches. I have assessed the plaintiff's damages in the sum of $643,607. Assessed heads of damage 19. The plaintiff made a claim for a total of 9 claimed heads of damage for assessment. The parties made disparate submissions on quantum based on differing assumptions. The heads of damage claimed by the plaintiff and the submissions of the parties are listed below, together with paragraph references to my assessment of the various heads of damage claimed: Head of Damage claimed by plaintiff Plaintiff's Submissions Defendants' Award Paragraphs Primary Submissions (a) Past loss of earnings $325,136.00 $2,500 $258,000 [432] – [460] (b) Fox v Wood $61,276.54 $Nil $61,276 [461] – [464] (c) Future loss of earning capacity $312,660.00 $Nil $145,845 [465] – [481] (d) Past loss of superannuation $35,764.00 $Nil $28,380 [482] (e) Future loss of superannuation $34,392.00 $Nil $16,042 [483] (f) Past domestic assistance $136,800.00 $Nil $24,230 [484] – [521] (g) Future domestic assistance $440,246.00 $Nil $ 77,955 [522] – [537] (h) Future out-of-pocket expenses $48,103.00 $Nil $20,696 [538] – [550] (i) Past out-of-pocket expenses $11,223.80 $Nil $11,183 [551] – [557] Totals $1,405,601.30 $2,500 $643,607 20. Although the effect of the defendant's primary submission was that any entitlement of the plaintiff to damages should be limited to the sum of $2500, the defendant's alternative submission was that any entitlement of the plaintiff to damages should be assessed in an amount far less than that contended for by the plaintiff. That submission was dependent upon a number of assumptions specific to each head of damage. Array of evidence 21. It is convenient to set out an overview of the array of the evidence. The oral evidence was in a relatively short compass. The defendant took the opportunity to test that oral evidence through extensive cross-examination. Voluminous documentary material was copied and tendered from the materials produced in answer to a large number of subpoenas. Oral evidence 22. The following witnesses gave oral evidence: (a) The plaintiff's oral evidence in chief was relatively short. His cross-examination was extensive, the plaintiff's evidence was interrupted by a hospital admission on the fourth day of the trial for a stress-related problem; (b) Mrs Cathy McLennan, the wife of the plaintiff gave oral evidence. Her evidence was directed to corroboration of the plaintiff's testimony concerning his appearance, movements and reactions shortly after the occurrence of the claimed incident as well as damages issues (c) Dr Augusto Tablante, the plaintiff's treating general practitioner gave oral evidence, his evidence was directed to corroboration of the plaintiff's claim of having been injured, and to some damages issues generally; (d) Associate Professor Paul Spira, a consultant neurologist qualified by the solicitor for the defendant gave oral evidence. He was present in court to observe almost the entirety of the plaintiff's oral evidence as well as the evidence of Dr Tablante. He gave opinion evidence on the issues that related to the plaintiff's claim generally and concerning his experience of headaches; (e) Mr Craig Wright was called by the defendant, mid-way through the trial, to support an application made by the defendant to have the plaintiff's computer produced for forensic examination. In a separate judgment I refused that application. Mr Wright's evidence had no bearing on any other issues in the case and I have not summarised his evidence in these reasons. Documentary evidence 23. The plaintiff tendered bundles of medical reports of the kind that are often seen in a personal injury damages case. I have reviewed and summarised the significance of those reports in my review of the medical evidence. 24. Voluminous documentary exhibits were tendered by the parties. The plaintiff's exhibits were in the series "A" to "PP" and the defendant's exhibits were in the series "1 " to " 32". There were 24 other documents that were marked for identification. Where it became relevant to do so, I have referred to the exhibits in my reasons. B. FINDINGS – BACKGROUND FACTS 25. Before embarking upon an examination of the issues calling for decision it is necessary to set out the factual background to the case, and to summarise the history of the plaintiff in order to achieve an appropriate context from which to understand and analyse the attack made upon the credit of the plaintiff, and to also provide a convenient framework for arriving at my ultimate findings on the issues that arise. 26. Where it became relevant to do so, in the course of setting out my background findings I have identified the challenges made by the defendant concerning the factual account given by the plaintiff. Where no challenges are identified, I have accepted as fact the evidence as summarised. Wherever I have summarised a matter by reference to what the plaintiff has stated in his evidence, where the matter is in contention and remains to be resolved, such summary should not be taken to represent a fact finding pending the consideration of all of the evidence relating to the issues calling for decision. 27. In the paragraphs that follow I set out my findings concerning the plaintiff's pre-injury personal circumstances, his pre-injury work history, his perspective of his pre-injury health history, and his pre-injury leisure activities. Plaintiff's personal background 28. The plaintiff was born in Sydney in 1954. At the time of the claimed incident he was aged 46 years. At the trial he was aged almost 55 years. He is a married man with 6 children ranging in ages from 35 to 15 years. He lives with his wife and with 2 of his children in accommodation rented by his wife from the Department of Housing. Plaintiff's pre-injury work history 29. The plaintiff's formal education ceased at the School Certificate stage when he was aged 15 years. Some time beforehand, due to family circumstances, the plaintiff was required to leave Singleton High School and to continue his education by correspondence so that he could assist by working on the family property. These circumstances arose because of financial pressure experienced by his family due to experiencing an extended period of drought. This precluded the family from employing outside labour and the plaintiff was required to assist on the farm. In that period the plaintiff also worked in a hardware store for the Burns Philp company, in Singleton. 30. At age 16 the plaintiff joined the army to train as an engineer. Whilst serving there he trained as a small arms gunsmith, fitter, turner and machinist. He also completed a Grade 3 welding course at Singleton TAFE. He left the army after completing 15 years of service. Whilst in the army he had a disciplinary issue with a superior. He stood his ground on the matter at issue and this resulted in his demotion from the rank of sergeant to that of private. Whilst in the army he had sustained a back injury. The defendant highlighted this injury as a credit issue. 31. After the plaintiff left the army, he joined the heavy machinery company Waugh & Josephson. That company had a Caterpillar heavy mining machinery and equipment outlet and repair facility near Singleton. The plaintiff was recruited for this job whilst he was still in the army. His role for that company was to set up and run the machine, welding and spraying departments for the repair of heavy earthmoving and mining equipment. He continued in this work for several years before moving to Sydney to seek lighter work as he had been experiencing some trouble with his back. The defendant highlighted the plaintiff's level of disclosure of his back injury in the employment application for that job and subsequent jobs as a credit issue. 32. In 1987 and 1988, after the plaintiff had moved to Sydney, he concurrently worked in 5 part-time jobs. Two of these positions were in service stations and three others involved security work. This led to a full time security position in the employ of Sydney Night Patrol. 33. In 1988/1989 the plaintiff changed his career direction and obtained employment in the fast food industry. Initially, he undertook training with Kentucky Fried Chicken ["KFC"]. He then worked as an assistant manager and then as a store manager for KFC in some 15 locations throughout the Sydney metropolitan area before that company franchised its stores. In that employment the plaintiff was sent to a particularly high volume store in order to sort out some staff training, production and theft issues. He later became the manager of the Punchbowl store for KFC. He left that position due to a disagreement he had with management over the alleged theft of stock. 34. Exhibit "M" comprised a bundle of testimonials, certificates, letters of commendation and bonus advices that comfortably permit the inference that up until 16 December 1999, being the date of the last letter in a series in that bundle, which advised the plaintiff of a 20.31 per cent incentive bonus for the previous quarter, KFC was looking forward to and wishing the plaintiff a prosperous next quarter as well. 35. The timing of the plaintiff ceasing his employment with KFC coincided with his father having a protracted illness. The plaintiff remained out of the workforce for about 9 months whilst he tended to his father's need for care arising from recurrent attempts at complex heart surgery. The defendant submitted this evidence should not be accepted as the plaintiff's father was not called to corroborate this testimony. I decline to make that finding because, after viewing this evidence with caution, I considered the evidence of this fact was genuine. 36. On 19 June 2000, the plaintiff re-entered the workforce and commenced employment with Hungry Jacks as a trainee manager at that company's fast food flagship store in George Street, Sydney. He had passed the training requirements of that employment. Just before the alleged incident that gave rise to these proceedings, the plaintiff was given to understand that he would be formally appointed to the position of manager of that store. Before this, he had been running that store for some time and had the expectation of taking on the position of manager. At the time, his duties included ordering stock, handling cash and taking responsibility for the day-to-day management and maintenance of the store. At the time of the alleged incident, the plaintiff was still in the course of negotiating his salary for that position. 37. Also of significance to the plaintiff's claim for economic loss was Exhibit "R" which comprised certificates issued by Burger King Corporation certifying the plaintiff was certificated by that company through basic management training, guest service, crew food safety requirements and a supervisory training programme. 38. I infer from the foregoing evidence that the plaintiff had some acknowledged training, skills and acumen for work at a retail management level in the fast food industry. 39. At around this time the plaintiff also had an interest in a shop business called Blue & Grey. This arose from his longstanding hobby and leisure past-time involving war games and military models. That business was ultimately sold but the plaintiff retained a stock of model soldiers and the like which he used to occasionally sell through internet trading. Plaintiff's pre-injury health history 40. In evidence the plaintiff described how, at around the age of 10 or 12 years, he began to have trouble with headaches. These problems involved him experiencing numbness in the left hand, left side of the face and excruciating pain in the head. This was also associated with vomiting. The plaintiff described these problems as having occurred about once per year. He said that pattern continued until about the age of about age 21 years when he said these headaches ceased. He said that thereafter, they did not recur until the time of the claimed injury. The existence, nature and cause of the plaintiff's post-incident headaches were matters of serious contention in the proceedings. 41. The plaintiff stated that whilst he was in the army, he had injured his back during the course of manhandling and lifting approximately 40 oxygen and acetylene cylinders and placing them onto a high table top truck. Since that time he has experienced recurrent lower back problems of muscular and disc origin. This causes him swelling and discomfort over a large area of his back around the belt line and it also causes him problems with walking about. After he left the army he was granted a disability pension. At the time of the trial that pension was in the amount of $158.10 per week. 42. The plaintiff said that during the time of his employment with Waugh & Josephson his back was "fine" and he had no time off work due to back problems. The issue of the condition of the plaintiff's back, before and during the course of that employment, were matters of contention in the proceedings. 43. The plaintiff's army medical records show the plaintiff occasionally suffered from psoriasis, allergic rhinitis and had occasional episodes of low back troubles following the initial back injury. At the time he was discharged from the army the discharge medical examination revealed "no major problems of late". The discharge was on account of the plaintiff's back problems : Exhibit "BB". 44. The defendant raised credit issues as to the historical pattern of the plaintiff's weight before his injury, and the extent of his weight gain afterwards. The Department of Defence records and the plaintiff's pre-injury medical records show that whilst he was in the army the plaintiff had gained weight and was considered to be overweight. In the period September to October 1999, he underwent an operation for removal of his gall bladder, the Liverpool Hospital notes variously recorded the plaintiff's weight on separate dates as being between 114kgs and 116kgs. 45. In the period before the plaintiff's injury there was some recorded evidence of him having hypertension. In February and May of 1982 the plaintiff had recorded diastolic blood pressure readings of 95 mm/Hg. On 13 October 1999 his general practitioner recorded a blood pressure reading of 170/100 mmHg. On 7 September 1999 the Liverpool Hospital notes recorded the plaintiff's blood pressure as being 167/89 mm/Hg. That was a pre-operative anaesthetic finding before a proposed gastroscopy procedure on that day. It was noteworthy that at that time the notes recorded that the plaintiff was extremely stressed and was affected by hospital phobia. The evidence disclosed that there were fluctuating pre-injury readings of the plaintiff's blood pressure. 46. The Liverpool Hospital pre-anaesthetic assessment notes dated 7 September 1999 recorded that at that time, the plaintiff was waiting for a cholecystectomy procedure for gallstones. The health assessment notes made at that time stated that he was affected by chronic back trouble and was a "bad sleeper". 47. The plaintiff said he was right-handed and had not had any previous problems with his right shoulder before the incident in question. 48. There was no evidence that before his injuries, the plaintiff had been affected by diabetes, including Type II diabetes. There was evidence that there was a history of hypertension and Type II diabetes affecting his parents. Plaintiff's pre-injury leisure pursuits 49. The plaintiff described his pre-injury leisure interests as playing golf, squash and swimming, as well as activities associated with the sedentary pursuit of the table-top activity described as war gaming. He followed this pursuit with his friends using model soldiers. These games were played in accordance with an intricate set of rules to recreate battle scenes. He also pursued other activities associated with the construction and repair of computers. He also occasionally engaged in the internet trading of computers, computer parts and other objects on the eBay trading site. He denied that these activities were aimed at producing an income. This was a matter contested by the defendant. C. EVIDENCE REVIEW – LIABILITY 50. As there were no witnesses to the events it is necessary to examine the plaintiff's version of events in some detail. Plaintiff's version of events 51. In describing the events leading up to the claimed incident, the plaintiff stated that at about 4.30am on Tuesday 5 September 2000, he had left his home early in order to catch the 5.00am train from Holsworthy railway station so he could travel to the city to go to work. He said he was due to commence his work at the Hungry Jack's store in the city at 6.00am on that day. He said that he recalled that he had parked his car in darkness in the car park at the place he normally parked, namely, in the second row next to the station entrance, about 100 feet from the entrance. He stated that when he had arrived there, some 30 or 40 cars were already parked there. 52. The plaintiff stated that he recalled walking in the car park behind a line of parked cars and towards the railway station. He stated that when he had walked a distance of about two or three cars from where he had parked his own car he heard the sound of a car start up and "rev" and he said he was aware that lights had come on. In the context of his evidence, I interpret the reference to lights to be a reference to vehicle headlights. He stated that he recalled that there was a line of parked cars to his left and he was walking in a line about 6 inches out from the backs of those vehicles. 53. The plaintiff said he thought there was ample room for a vehicle to drive past him on his right. He said he did not turn around and he said that whilst walking towards the station he became aware of the increasing brightness of headlights illuminating the area around where he was walking. He stated that the sound of acceleration was as if the accelerator of the vehicle had been pushed all the way to the floor. He said that he perceived from the noise and from the lights, that the vehicle was drawing closer to him. He said that he did not recall having looked to his rear in these events. 54. The plaintiff stated that his next recollection was of being aware that he was laying on his side between two parked cars on the paved ground surface of the railway station car park in daylight. Plaintiff's account of subsequent events 55. The plaintiff said that after the incident, he initially did not recall seeing anyone around him in the car park. The plaintiff said that there was nobody around at the scene. He clarified this by saying that when he found himself laying in between parked cars there were people walking through the car park. There was no evidence of anyone from amongst those people coming forward to assist the plaintiff at the scene. He said he had trouble standing up and he had a massive headache. He said he felt sore in several places, including both hips and a little towards the back, his left knee and right shoulder. 56. The plaintiff said that at the time he was feeling confused. He said it took him a while to realise where his car was and he then went to it. He recalled getting into his vehicle. He remains uncertain as to whether or not he had passed out. He thought it was at least an hour before he left the car park. He said he drove home at about 10:00am on that day. He described a gap in his memory. He said that when he arrived home, his wife and his son assisted him. He noticed his clothes were "messed up" and that his trousers had been torn at the left knee. He saw his general practitioner, Dr Tablante, the following day. Inquiries made by plaintiff 57. The plaintiff said he telephoned Liverpool police station on the following day to report the incident. He said he spoke to a female police officer and gave her his details, confirmed that he did not have a registration number for the vehicle involved in the incident and he requested that the incident be investigated. He stated that he heard nothing further from the police in this regard and was given no expectation that something positive was likely to come out of that conversation. 58. He said that about a week or so after the incident he put up a paper flyer at the railway station car park requesting information from anyone who might have seen the incident. He said he printed that flyer on his home computer. The defendant questioned the authenticity and the timing of the creation of that flyer. The plaintiff said that he had received only one reply to his flyer. The plaintiff said that reply was said to be from someone who had indicated that in return for some monetary payment, the respondent would be prepared to say anything that was required. He said that nothing of use was obtained from that person. The plaintiff then consulted his solicitors. D. EVIDENCE REVIEW - DAMAGES 59. Before setting out my findings on the liability and damages issues, and on the credit findings that underpin those matters, I set out a short summary of the evidence of the plaintiff's post-injury work situation and the claim relating to his post-injury domestic activities, followed by a review of the medical evidence that was variously called or tendered. Post-injury work history 60. The plaintiff stated that since the incident he did not return to work at Hungry Jacks because he was unable to do so. He ultimately resigned from that employment. He did so whilst he was still receiving workers' compensation benefits. He said that those benefits were paid intermittently, although the insurer's payment records show that payments have effectively been made for the continuous period from the time of the incident until the time of the trial. 61. The plaintiff had a period of employment with Woolworths for a short period after he had resigned his employment with Hungry Jacks. This topic was the subject of a credit challenge to the plaintiff's probity as to his concealment from Woolworths of his complete work and compensation history, as well as the concealment from his general practitioner of his employment with Woolworths. The plaintiff stated that he has been unable to pursue other work since that time. He said he has from time to time derived some monies from his hobby of repairing or rebuilding computers. However, he denied that this was an income producing activity or that it was representative of a residual earning capacity. This area of the plaintiff's evidence was also the subject of credit challenges by the defendant. The plaintiff claimed he has been, and remains, unfit for work as a result of his post-injury disabilities. Domestic activities 62. The plaintiff stated that before his injury he and his wife had shared the burden of domestic tasks on an approximately 50 / 50 basis but this had not continued to be the case after the incident. He said that since that time his wife and his son undertook the burden of some 10 to 15 additional hours per week to carry out tasks around the home that he would have otherwise attended to if he had not been injured. He stated that he no longer carried out the gardening at home but forced himself to mow the lawns. He said that one of the tasks undertaken by his family was to assist him when he lay down with his migraine headaches. The assistance provided to him at these times was said to be aimed at ensuring that he remained hydrated and to assist him to go to the toilet. The plaintiff made significant monetary claims for the value of past and future domestic assistance. The extent of the need of the plaintiff for past and future domestic assistance was challenged by the defendant. Medical evidence review 63. The medical evidence consisted of numerous reports. The array of reports was from treating doctors and medico-legal assessments by experts variously retained by the workers' compensation insurer, the Motor Accidents Authority, as well as by the solicitors for the respective parties. The only medical witnesses who were called to give oral evidence were Dr Tablante, the treating general practitioner, and Associate Professor Spira, a consultant neurologist, who was retained by the defendant in these proceedings. The paragraphs that follow review and summarise the medical evidence. Treatment reports 64. The only treating doctors' reports tendered by the plaintiff were from Dr Tablante, Dr Rail, Professor Lance, Dr Grant and a number of reports following radiological investigations of the plaintiff's head and spine. Dr Augusto Tablante – treating general practitioner 65. Dr Augusto Tablante, the plaintiff's treating general practitioner, has provided 4 reports. These were respectively dated 16 November 2004, 20 July 2005, 8 February 2007 and 18 March 2009. A number of medical certificates he had issued to the plaintiff were also in evidence. Dr Tablante has been the plaintiff's general practitioner since 24 September 1999. 66. On 6 September 2000, the plaintiff consulted Dr Tablante for an examination concerning the injuries he had received the previous day. Dr Tablante recorded that the plaintiff did not have a clear recollection of the events of his injury. His findings on examination revealed multiple bruising which, in the opinion of Dr Tablante, were consistent with the plaintiff having been hit from behind by a vehicle and then falling to the ground unconscious. At this initial consultation, Dr Tablante noted that the plaintiff had sustained injuries "to his head + front due to the impact on the ground." 67. On 20 July 2005, Dr Tablante wrote to the solicitor for the plaintiff noting that the plaintiff showed no improvement in his migraine headaches, which were occurring on a regular basis and with a severe intensity. At that time, he noted the prognosis to be poor due to failure of the multiple medications which had been trialled in order to attempt to treat the plaintiff's migraines. Dr Tablante's progress notes between 5 November 2003 and 2 June 2005 reveal that the plaintiff had 11 consultations with Dr Tablante in that period. Some of those progress notes were difficult to decipher. The entry for 16 November 2004 indicates that in respect of the plaintiff's claim of having been injured in the claimed incident, the plaintiff had made Dr Tablante aware that the insurer was "claiming that he was bashed" rather than having been hit by a car. On 21 April 2005 Dr Tablante referred the plaintiff to Professor Antony for review of his migraines. No reports from Professor Antony were tendered. 68. On 8 February 2007, Dr Tablante again reviewed the history of the plaintiff having been hit from behind by a car whilst at the railway car park. He recounted a history of the plaintiff having no recollection of the actual incident, having woken later whilst laying on the ground, approximately 30 minutes later. 69. Dr Tablante's initial examination of the plaintiff had revealed multiple bruising to the plaintiff's chest and lower limbs, tenderness to the head and to the cervical region of the spine. Dr Tablante stated that he put in place conservative management for these injuries which included mainly simple analgesic and rest. 70. On 19 September 2000, the plaintiff again consulted Dr Tablante complaining of headaches. Dr Tablante recounted the plaintiff's history that the headaches have persisted since that time up to February 2007 and had become severe. He described the evolution of the headaches as being persistent and worsening, leading to trialling of multiple medications to alleviate those headaches, without success. Dr Tablante recorded a history of the headaches having become very debilitating for the plaintiff, to the point that he was bedridden for days at a time. 71. Dr Tablante stated that he had referred the plaintiff to Dr Rail and to Professor Lance, both being consultant neurologists, for assessment, treatment and management of the headaches. There was a series of reports tendered from Professor Lance and a short report from Dr Rail. 72. Dr Tablante stated that the diagnosis was that the plaintiff had resistant migraine headaches. Dr Tablante stated that : "… (these were ) exacerbated to a serious extent by a head injury sustained on 5/9/00. He was then trialled on multiple strong medications again, however the headaches persisted and to the state has (sic ) worsened to the point where his daily activities even at hoem (sic) has been severely compromised. The headaches at present occur on a adily (sic) basis with varying intensity. More oftet (sic ) as he states, he is bedridden for a few days." 73. Dr Tablante expressed the opinion that the lack of activity forced upon the plaintiff by his condition has caused the subsequent development of diabetes and hypertension requiring medication, as well as reactive depression due to the failure of treatment to that point in time. Dr Tablante expressed the opinion that the plaintiff's prognosis was poor, with the headaches being expected to continue given the failure to respond to medications to date. He stated that the plaintiff remained unfit for work as at the time of the report, namely 8 February 2007, and required ongoing specialist review for further treatment for headaches, diabetes and hypertension. 74. On 30 March 2008 Dr Tablante referred the plaintiff to Dr Granot for a neurological consultation. At that time, in addition to indicating that the plaintiff had migraines, hypertension, diabetes, lumbar arthritis, sinusitis and an eye inflammation he noted the plaintiff also had reactive depression. 75. On 18 March 2009, Dr Tablante reported that the plaintiff was still suffering frequent and intermittent migraines and remained under the care of a neurologist, Dr Granot, who reportedly, had unsuccessfully trialled the plaintiff on the medication Topamax for treatment of his migraines. It was noted that the plaintiff was awaiting a further review by Dr Granot at the time of the trial. 76. When Dr Tablante gave oral evidence he was in some personal discomfort due to his own illness. He confirmed that before the plaintiff consulted him on 6 September 2000 in respect of the incident, the plaintiff had not consulted him with respect to any problems with headaches. He confirmed that following the incident in question, the plaintiff showed signs of multiple bruising, he complained of persistent headaches and Dr Tablante had formed the view that the plaintiff had concussion. 77. Dr Tablante was asked to consider the mechanism by which the plaintiff came to be injured and expressed the view that the bruising on the posterior legs was consistent with having been hit from behind by a motor vehicle. He stated that this was a distinguishing feature from his experience of people having been assaulted, as in those cases, the striking was more on the upper body, at the front and on the sides rather than lower down at the lower leg level. 78. Dr Tablante also regarded it to be significant that the bruising on the plaintiff's lower legs extended across both lower legs. When asked to explain bruising to the chest and face Dr Tablante stated that the plaintiff could have fallen forward and hit his head in the incident. He noted that the plaintiff had a lump on the side of the head at the back and stated that because this was in conjunction with bruising to the back of the legs, this was more consistent with having been struck by a vehicle than having been assaulted was a blunt object. 79. Dr Tablante agreed that he regularly provided the plaintiff with certificates of unfitness for work since the time of the incident. This pattern commenced on 6 September 2000 and continued up until the present time. Those certificates were provided to the workers' compensation insurer certifying the plaintiff as being unfit for work. In cross-examination there was implied criticism for the brevity of his notes but he made it clear that his notes were intended only as an aid to memory rather than as a transcript of consultations. 80. Dr Tablante agreed that in assessing the plaintiff's truthfulness, he was entirely dependent upon what the plaintiff had told him about the frequency of his migraine attacks. He agreed that when he provided the plaintiff with certificates, he was declaring the plaintiff to be completely unfit to work on those dates. In cross-examination Dr Tablante confirmed that the plaintiff had complained to him that his compensation payments had at times been late. When cross-examined about the plaintiff's period of employment with Woolworths, it was suggested to him that the plaintiff had been "pulling the wool" over his eyes with regard to his medical fitness and entitlement to receive compensation payments. In response Dr Tablante explained that he had understood that the plaintiff was not actually at work, but was in a training position at that time. 81. Dr Tablante agreed that the plaintiff had been subject to back problems for many years and occasionally walked with a limp because of back problems. He agreed that the problem had been getting progressively worse over the years and extended to problems for the plaintiff with arthritis, difficulty with prolonged standing, lifting, repetitive bending including, on one occasion, bending down to simply pick up a cat. 82. Dr Tablante was asked questions about the plaintiff's report of having been unconscious at the scene of the incident. He stated that he recalled the plaintiff saying he had been knocked unconscious and he had assumed this had been for a matter of only a few minutes. Dr Tablante was asked whether it was unusual that the plaintiff's headaches had not responded to a whole series of medications. He responded by saying that he thought this was more unfortunate than unusual. 83. Dr Tablante was asked questions about the plaintiff's weight and related conditions. He agreed that the plaintiff was "a big fellow". He agreed that a person suffering from Type II diabetes could suffer from lethargy and tiredness. He stated that lifestyle was a contributing factor to hypertension, including a high salt intake diet and a lack of exercise. He agreed that with continued weight gain over time this could lead to a person in the plaintiff's position suffering incapacitating symptoms. Dr David Rail – consultant neurologist 84. On 5 October 2000, at the referral of Dr Tablante, the plaintiff was examined by Dr David Rail, a consultant neurologist. Dr Rail took a history of a loss of consciousness for about half an hour with recurrent headaches since that time, typically generalised throbbing and present on most days as distinct from the previous experience of migraines averaging 1 or 2 per year. Dr Rail stated: "Mr McLennan's EEG showed some bilateral slowing. He has a tension vascular picture and needs to start some neck and scalp care as indicated in the chart I have given him. I have also given him some Propranolol 40mg b.d. as a prophylactic. I will review in a couple of weeks." 85. No evidence was called on the diagnostic significance of the EEG findings or of the significance of the tension vascular picture. This is a matter on which speculation is not permitted : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. The follow-up report was not tendered by either of the parties although there is evidence in the report of Ms Barbuto that a later report from Dr Rail was in the possession of the defendant. Professor James Lance – consultant neurologist 86. Professor James Lance, a consultant neurologist, treated the plaintiff at the referral of Dr Tablante. Professor Lance has provided a series of 7 reports. These were respectively dated 13 March 2001, 25 June 2001, 13 September 2001, 4 December 2001, 8 March 2002, 2 October 2002 and 7 November 2002. These reports were essentially clinical communications with Dr Tablante with the exception of a short report dated 2 October 2002 to the plaintiff's solicitor inviting a medico-legal examination. First consultation with Professor Lance – 12 March 2001 87. At the first consultation with Professor Lance on 12 March 2001, he recorded a past history of the plaintiff having experienced headaches once or twice a year from the age of 16, associated with nausea, photophobia and pins and needles in his left arm, persisting for about 6 to 8 hours. 88. Professor Lance recorded the account related to him by the plaintiff as to the occurrence of the incident. He recorded that the plaintiff did not know whether he had been assaulted or was struck by a car, but he regained awareness after about 40 minutes, feeling confused with bruises on his left hip, knee and ankle as well as his right shoulder and hand, and a lump on the top of the head. He recorded the plaintiff as having told him that at some time he realised his car was in the car park, after which he then sat in the vehicle feeling off-balance. He described having then driven home, arriving there at about 10:00am. 89. At his first consultation with Professor Lance, the plaintiff told him that since his injury he had been subject to 2-3 headaches per week, often waking in the middle of the night or early morning. He described these headaches as being either bilateral or left-sided, associated with nausea, vomiting, sensitivity to light, sounds and smell as well as experiencing blurred vision. He also stated that these headaches were brought on by any concentration such as reading or using a computer. A variety of medications were noted as having been trialled without benefit. Professor Lance prescribed Sibelium, a new medication, and warned the plaintiff about the possibility of weight gain because it was appetite stimulant. At that consultation the plaintiff's weight was recorded as being 121kgs. He also warned the plaintiff about the possibility of the onset of depression as a side effect of this medication. 90. Professor Lance thought that the plaintiff's pre-injury experience of migraine headaches was exacerbated to a serious extent by the effects of a head injury sustained on 5 September 2000. Second consultation with Professor Lance – 21 June 2001 91. On 21 June 2001, Professor Lance examined the plaintiff for a second time. At this consultation Professor Lance was told that the plaintiff's headaches had not responded to Sibelium and the plaintiff had experienced weight gain, drowsiness and mood swings. Professor Lance suspended the use of this medication on the strength of that history. At that time he recorded the plaintiff's weight as having increased from 121kgs to 133kgs in a period of three months. The plaintiff's medication regime was then changed to Epilim and Imigram in an inhaled form. Third consultation with Professor Lance – 12 September 2001 92. On 12 September 2001, Professor Lance examined the plaintiff for a third time. He noted that the plaintiff was not responding to Epilim. Professor Lance recorded that the plaintiff's weight had reduced from 133kgs to 123kgs following a strict diet and an increase in exercise. He prescribed the alternative medication of Sandomigran and he arranged to review the plaintiff again in six weeks time Fourth consultation with Professor Lance – 29 November 2001 93. On 29 November 2001, Professor Lance examined the plaintiff for a fourth time. He noted that Sandomigran had not assisted the frequency of the plaintiff's experience of headaches which were being experienced at the rate of 1-2 per week. He noted the history that the Imigran spray helped to dull the plaintiff's experience of headaches sufficiently to help him get to sleep. On this occasion Nardil was also prescribed. Fifth consultation with Professor Lance – 5 March 2002 94. On 5 March 2002, Professor Lance examined the plaintiff for a fifth time. On this occasion he noted that in the intervening period, the plaintiff's weight had reduced from 122kgs to 114kgs, but in the interim had increased again to 120kgs. Professor Lance recorded the plaintiff's history of still having 1-2 headaches per week, but milder on the current medication. The medications were adjusted at this consultation. Sixth consultation with Professor Lance – 5 November 2002 95. On 5 November 2002, Professor Lance examined the plaintiff for a sixth time. On this occasion the plaintiff's medications were again adjusted. A history of headaches was five in the 2 week period instead of 7, persisting for about 12-14 hours. The plaintiff's headaches were described as the left-sided, associated with nausea and accompanied by vomiting if there was movement. Photosensitivity was also noted. Professor Lance described the history of the plaintiff being unable to sustain a full-time job, losing 2 days per week if he attempted to work. He recorded the plaintiff as describing himself as an unreliable worker because of his proneness to headaches. On this occasion, Professor Lance thought the plaintiff's prognosis for improvement was poor. 96. Earlier, on 2 October 2002, when writing to the plaintiff's solicitor to enclose copies of reports to the treating general practitioner, Professor Lance responded to a number of questions asked of him by the plaintiff's solicitor. He indicated that he would have to see the plaintiff again in order to assess his employment capacity and prognosis. Professor Lance indicated that he was prepared to provide a full medico-legal report to the plaintiff's solicitor and he was prepared to see the plaintiff again for this purpose. There is no evidence that this offer from Professor Lance was not taken up. A report in those terms was not tendered in evidence in the proceedings. Subsequently, Professor Lance retired from practice and he therefore no longer provided treatment to the plaintiff. Dr Ron Granot – consultant neurologist 97. On 30 April 2008, at the referral of Dr Tablante, the plaintiff was examined by Dr Ron Granot, a consultant neurologist, for management of his migraine headaches. Dr Granot elicited a history of post-traumatic amnesia of around 3 hours with an uncertain period of loss of consciousness. Dr Granot reviewed the history of the plaintiff's symptoms and attempts at treatment, noting that the plaintiff "cycles through a variety of acute migraine treatments" the current one including opioids. He noted that the plaintiff's medications are useful for several months and then lose efficacy. 98. Dr Granot noted an episode of binocular loss of vision about 2 months before his consultation. He requested a copy of the MRI and ophthalmic report that had been obtained but there is no evidence that he was supplied with that material and the carotid Doppler studies and other material he had requested. In any event, it was not tendered in evidence. 99. In his management plan, Dr Granot stated the plaintiff's headaches were likely to be migrainous in origin and were clearly exacerbated following the presumed head injury sustained in 2000. He adjusted the plaintiff's medications and arranged a follow-up consultation in 2 months. 100. On 9 July 2008 Dr Granot saw the plaintiff for a follow-up consultation. He was still awaiting the MRI report in relation to the plaintiff's episode of loss of vision. Dr Granot made further adjustments to the plaintiff's anti-migraine medications and arranged a further review after 6 weeks. No further reports were tendered in relation to that or any other review by Dr Granot. Reports of medical investigations arranged by Dr Tablante 101. The plaintiff underwent a number of medical investigations, both neurological and radiological as arranged by Dr Tablante. Not all of the results of these investigations were tendered or described in evidence. 102. On 5 February 2003, at the request of Dr Tablante, Dr Sing reported on a CT scan taken of the plaintiff's cervical spine between the levels C3 to T1 and found that no disc protrusion, or a significant central canal stenosis and no other bony abnormality was noted, although there were some degenerative changes described at various levels. 103. On 25 October 2005, at the request of Dr Tablante, Dr Cohen reported on an ultrasound examination of the plaintiff's right shoulder. No abnormalities were noted on that examination but it was noted that the plaintiff was unable to abduct or rotate the right arm to assess impingement. 104. On 2 February 2007, at the request of Dr Tablante, Dr Jones reported upon a CT brain scan, a CT of the cervical spine and an ultrasound of the right shoulder. There were no brain abnormalities noted and no cause was shown for the plaintiff's headaches. The neck imaging showed a disc osteophyte complex impinging on the thecal sac on the right of C3/4, possibly involving the existing nerve root. Otherwise, only mild degenerative features were noted at the other levels. The report noted painful right shoulder abduction, limited to 90 degrees but no other abnormalities. 105. On 3 January 2008, at the request of Dr Tablante, Dr Van der Merwe reported on CT scans of the plaintiff's brain, his lumbosacral spine and paranasal sinuses. No cranial cause was determined for the plaintiff's headaches. The abnormalities that were noted were described as disc bulging, disc narrowing and facet joint degeneration were variously noted at the levels L2 through to S1. The scan of the sinuses revealed either a maxillary antral mucous retention cyst or a maxillary antral polyp. Reports obtained by plaintiff's solicitor 106. The solicitor for the plaintiff obtained medico-legal reports from Dr Conrad, Dr Lorentz and Mr Ellis. These reports were tendered in the plaintiff's case. Dr Peter Conrad – consultant surgeon 107. On 3 March 2003, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. The report that followed this consultation was dated 6 March 2003. 108. Dr Conrad summarised the history as the plaintiff having been injured in a hit-and-run accident after hearing a car revving up behind him and then hitting him in the railway station car park at about 5:00am on the morning in question. A history of loss of consciousness and subsequent waking in the car park was also noted. 109. Dr Conrad took a history of headaches, blurred vision and dizziness. He recorded that at the time of this consultation, on careful questioning, the plaintiff denied any symptoms in any other part of his body. Dr Conrad expressed a view that the plaintiff sustained a severe concussion with ongoing severe post-concussion syndrome with symptoms and signs of a neck strain. He noted the opinions of Professor Lance and agreed with his opinion that the plaintiff's prognosis was poor. Dr Ivan Lorentz – consultant neurologist 110. On 25 January 2005, at the request of his solicitor, the plaintiff was examined by Dr Ivan Lorentz, a consultant neurologist. The report of that consultation was dated 2 February 2005. 111. Dr Lorentz obtained a history from the plaintiff of him having experienced migraine attacks about once a year since childhood, usually accompanied by tingling in the left-hand, visual disturbances, nausea and vomiting, but not requiring time off work. 112. Dr Lorentz recorded a history of the incident whereby the plaintiff was described getting out of his car, locking it, recalling a car revving up behind him, and seing some headlights but having no further recollection until he woke up sometime later to find himself lying down between two cars in the car park, in daylight and feeling confused. He recorded the plaintiff's account of having recovered his senses after a while, and then driving himself home at about 10:00am and going to bed. Dr Lorentz recorded the plaintiff as having told him he had experienced a bump on the head, injuries to the left ankle, left knee, left side, the shoulders and bruising to the right hip and having a sore neck. 113. Dr Lorentz noted the plaintiff's description of a change in his pattern or headaches since the injury in that beforehand he experienced headaches only infrequently, whereas afterwards the headaches had become frequent and severe, occurring about twice a week at the time of the examination. Two kinds of headaches were noted, one causing waking and intense photophobia with noise intolerance, accompanied by nausea and vomiting. This headache was described as being difficult to settle. The second type of headache was described as starting in the middle of the day and occurring about twice a week, aggravated by exertion. 114. Dr Lorentz noted the plaintiff's complaints of tingling in his fingers, especially in the right hand, neck pain especially on reversing the car, difficulty turning the neck, inability to do strenuous work and even minor tasks around the house. On the occasion of this examination, the plaintiff was noted to have been wearing sunglasses because of an apparent migraine. 115. Dr Lorentz noted that since the injury in September 2000, the plaintiff has been suffering from severe and incapacitating migraine attacks, and on account of this, has been unable to engage in any gainful occupation. He thought it was unlikely that there would be any significant improvement and noted his opinion that the prospect of the plaintiff returning to work was very slim. He thought it was unlikely the plaintiff would become employable in the future, and would require ongoing management and treatment. Dr Max Ellis – consultant orthopaedic surgeon 116. At the request of his solicitor, the plaintiff was examined on 4 occasions by Dr Max Ellis, a consultant orthopaedic surgeon. The relevant dates were 21 October 2005, 30 January 2007, 26 February 2008 and 13 March 2009. The reports that followed these examinations were respectively dated 26 October 2005, 5 February 2007, 29 February 2008 and 17 March 2009. 117. At his initial consultation, Dr Ellis summarised the history provided by the plaintiff having been injured at about 5:00 in the morning in question at the railway station car park after having heard a car revving up behind him, then being hit by the vehicle. Dr Ellis recorded that the plaintiff believed that he had been "hit purposefully by a local drug syndicate. He was forced by the police with a threat of arrest, to give evidence against the syndicate who had been involved in an armed assault outside of his Hungry Jack's store. He objected to giving evidence because his life had been threatened by the group but was forced to comply by the police and a week later this unexplained attack on his life was made." If correctly recorded, this could only have been speculation on the plaintiff's part. 118. In his first report, and within the confines of his specialty, after commenting upon his impression of the plaintiff having suffered a cerebral concussion with resultant severe recurrent migraine headaches, Dr Ellis reviewed the orthopaedic complaints, noting the existence of a prior back injury. He stated that the CT scan revealed the presence of degenerative changes in the cervical spine that had been aggravated. He stated there had been disc prolapse in the mid-cervical discs, bilateral spinal nerve compromise consistent with referred pain and neurological deficit in both arms. Dr Conrad expressed the view that it was unlikely that the plaintiff would return to employment in the future. 119. In his second, third and fourth reports, Dr Ellis updated the previous history and reiterated his earlier opinion that it was unlikely the plaintiff would return to employment in any capacity in the future. 120. Dr Ellis recommended that the plaintiff be assessed by an ENT surgeon. There was no evidence that an assessment of this kind has been carried out and no report was tendered by either party in that regard. All Parental Care report – Ms Laverack 121. On 14 February 2007 the plaintiff was assessed at the request of the plaintiff's solicitor by Ms Karen Laverack, a consultant occupational therapist. Her report is of relevance to the plaintiff's claim for domestic assistance. I will refer to it where relevant to the assessment of that aspect of the plaintiff's claim for damages. Reports obtained by workers' compensation insurer 122. The workers' compensation insurer for the plaintiff's pre-injury employer arranged examinations and obtained reports and opinions from Dr Parameswaran, Dr Basser, Dr V Vignaendra and Dr Davies. Dr Thambipillai Parameswaran – consultant surgeon 123. On 8 January 2001, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Thambipillai Parameswaran, a consultant orthopaedic surgeon, who issued his report on the same date. 124. Dr Parameswaran obtained from the plaintiff a history of the incident, which was essentially consistent with the earlier descriptions recorded by other practitioners. He examined the plaintiff's neck, right shoulder, left knee and lower back expressed the opinion that all of these areas were normal to his examination. Dr Parameswaran considered the history of soft tissue injuries to the left ankle, left knee, ankle and right shoulder, as being consistent with the circumstances described. Dr Parameswaran offered no comment on the plaintiff's complaints of migraine. In his opinion, the plaintiff had made a complete recovery from the physical soft tissue injuries that he sustained in the incident. Dr LS Basser – consultant neurologist 125. On 15 February 2001, at the request of the workers' compensation insurer, the plaintiff was examined by Dr LS Basser, a consultant neurologist. His report of that consultation was dated 19 February 2001. After reviewing the history and setting out his findings on examination he stated his diagnosis, which was of migraine, made much worse since the incident. Dr V Vignaendra – consultant neurologist 126. On 19 February 2002, and again on 6 August 2002, at the request of the workers' compensation insurer, the plaintiff was seen by Dr V Vignaendra, a consultant neurologist. The reports that followed these examinations were issued on the same dates as the examinations. 127. In his first report, Dr Vignaendra obtained a history from the plaintiff as to the occurrence of the incident, which was largely consistent with earlier descriptions recorded by other practitioners. He recorded a history of the plaintiff's experience of continuing to suffer from severe headaches at least 3 times per week, with a maximum headache free period of about 6 days. His summary of the plaintiff's history included a description of physical exertion, aggravating ongoing migraine type headaches thus causing the plaintiff to avoid strenuous physical activity so as not to precipitate such headaches. He also noted that computer use tended to precipitate migraine type headaches. He also noted a complaint by the plaintiff of impairment of short-term memory. He also noted that the plaintiff's severe headaches were affecting his concentration. 128. Dr Vignaendra made a diagnosis of post-traumatic headaches with features of post-traumatic migraine. He also noted a complaint of impairment of the plaintiff's short-term memory and his experience of intermittent dizziness as being part of the symptoms of a head injury. He attributed these problems to the injury in question. He suggested that any return to work on suitable restricted duties should be supervised by an occupational rehabilitation provider. He noted that the prognosis for recovery from post-traumatic headaches was variable, and could take months to years to resolve. He had the expectation of ultimate recovery. He added that the plaintiff's symptoms were real and were well-known complications of head trauma, one of the major residual symptoms being intractable headaches. 129. In his second report, Dr Vignaendra confirmed the earlier history he obtained from the plaintiff and noted that treatment was still being received from Professor Lance. In his second report Dr Vignaendra reiterated his earlier diagnosis of the plaintiff's headaches as being compatible with post-traumatic migraine type headaches. He thought it would be therapeutic for the plaintiff to return to a desk job in a managerial position within a range of nominated positions he thought would be suitable. He noted that most people manage to remain in the work force despite migraine attacks. He noted that the plaintiff may have unpredictable headaches which were noted to be severe. He also noted that post-traumatic headaches can take a long time to settle, that is, months or years. He thought that as at 6 August 2002, the plaintiff had not yet reached his point of maximal medical improvement. Dr Michael Davies – consultant neurosurgeon 130. On 30 January 2004, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Michael Davies, consultant neurosurgeon, who issued his report on the same date. 131. Dr Davies recorded a history of the incident which was essentially consistent with that recorded by other practitioners. The focus of the examination by Dr Davies was an examination of the neurological consequences of the plaintiff's head injury. 132. Dr Davies obtained a history of the plaintiff having experienced a "blinding headache" following the incident and having to lay down. He reviewed the treatment provided by Professor Lance. He recorded a history of the plaintiff's experience of headaches once or twice per week lasting anything from 2 days to 3 weeks, affecting the left side of his head and extending down the left side of his neck, with a burning sensation in the centre of the neck at the base, posteriorly. Dr Davies also recorded a history of the plaintiff being limited in his capacity to read much or to use a computer for any length of time, because these activities would precipitate a headache. He recorded 6 types of named medication currently being prescribed for the plaintiff. 133. Dr Davies stated that he thought the plaintiff appeared to have had soft tissue injuries affecting multiple parts of his body but that these problems had since resolved, leaving him with troubling ongoing left sided headaches with radiation to the neck, these being symptoms consistent with post-traumatic migraine. Dr Davies noted that the plaintiff wore dark glasses virtually all of the time because of difficulty being in bright lights. Dr Davies noted that there were "no hard neurological findings" at the time of this examination, but he acknowledged that this was not unusual in the case of someone reporting post-traumatic headaches. He noted a degree of unresolved anger about the plaintiff's presentation and recommended counselling and pain management. 134. Dr Davies also noted some worsening of the plaintiffs pre-existing back problems resulting from a reduced level of activity due to his migraines. Dr Davies thought that the diagnosis of post-traumatic headaches, probably migrainous in nature, was consistent with the history given, as it was unusual for the symptoms to continue for so long without real improvement. He suspected there may be some ongoing psychological factors such as unresolved anger contributing to the persistent symptoms. He recommended continued care by a neurologist and he also recommended a psychological assessment. Reports obtained by the Motor Accidents Authority 135. The Motor Accidents Authority arranged to have the plaintiff medically assessed by Dr Fitzsimons, Dr Ayscough and Dr McKenna. The reports that followed these assessments were tendered by the defendant. Dr Robin Fitzsimons – consultant neurologist 136. On 28 August 2003, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Robin Fitzsimons, a consultant neurologist. Her report that followed this consultation was dated 6 September 2003. Dr Fitzsimons was asked to determine the manifestations in the plaintiff of the complaint of a head injury. She obtained a history of the incident which was generally consistent with the earlier descriptions given by the plaintiff. She noted that the plaintiff had been treated for migraines by Professor Lance and Dr Zagani. There were no reports tendered in the proceedings from Dr Zagani. Dr Fitzsimons found no evidence of cognitive abnormality in the plaintiff. She expressed the opinion that the incident had activated a latent migraine diathesis (predisposition) for this in the plaintiff. She also thought that the pre-existing asymptomatic degenerative changes in the plaintiff's neck at C3/4, which were aggravated by the injury and rendered symptomatic, may also have been a contributing factor to the plaintiff's headaches, which she thought may well be referred as headache symptoms. Dr Rodney Ayscough – consultant musculo-skeletal specialist 137. On 12 September 2003, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Rodney Ayscough, a consultant musculoskeletal specialist, who issued his report on the same date. Dr Ayscough focused upon an examination of the soft tissue injuries to the plaintiff's left ankle, left knee, right hip, left hip, right shoulder and neck. His examination revealed that the plaintiff had no current complaints in the areas to be assessed as these problems had resolved completely at the time of the assessment. Dr Ayscough noted the presence of ongoing migraines but this was outside the terms of his examination. Dr Clive McKenna – consultant musculoskeletal specialist 138. On 1 November 2006, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Clive McKenna, a consultant musculoskeletal specialist. His report which followed that examination was dated 16 November 2006. Dr McKenna was asked to report upon the plaintiff's physical injuries. Dr McKenna obtained a history from the plaintiff of having current symptoms of moderate burning type pain in the neck and right shoulder, severe occipital headaches, difficulty sleeping on the right shoulder, with symptoms being aggravated by movement. His diagnosis was of soft tissue injury to the cervical spine and right shoulder and neurapraxia of the greater occipital nerve on the left side. He thought this was consistent with the presentation and noted that whilst some improvement may occur, the condition has stabilized. Reports obtained by solicitor for defendant 139. The defendant tendered reports from Dr O'Neill, Dr Maguire, Dr Delaney, Dr Cromer, Professor O'Rourke, Associate Professor Spira and Ms Barbuto. Dr John O'Neill – consultant neurologist 140. On 20 January 2003, 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 report was issued on the same day as the examination. 141. After reviewing the events of the incident, which were summarised in a similar way to other accounts in the medical evidence, Dr O'Neill quoted the plaintiff as saying "I still cannot be sure what happened; whether I was hit by a car". Dr O'Neill obtained a history from the plaintiff of persisting headaches since the incident, against a background of proneness to migraine before the incident. In this regard he recorded the plaintiff as having stated that "I'd (sic) lucky I got one a year". After his review of the history Dr O'Neill concluded his report as follows: " CONCLUSIONS: It is unclear as to what took place in the incident in the car park on 5.9.2000. Mr. McLennan may have been hit by a vehicle or he may have fallen. In any case it would seem he sustained a mild closed head injury which, in my view, would not be expected to result in any subsequent medical problem. Prior to the incident of 5.9.2000 he was prone to rare episodic headaches which would fit with a diagnosis of migraine. These would settle quickly with analgesic medication. Since the incident of 5.9.2000 he has been prone to frequent episodic headache of varying quality and I would be loath to attribute these simply to migraine. There is a tension-type quality to some of the headaches. Mr. McLennan certainly has moderately severe untreated hypertension. It is possible he is prone to obstructive sleep apnoea. Even if one were to accept that current headaches might be classified as migraine, I would not attribute any aggravation of the minor closed head injury of 5.9.2000 but rather to the untreated hypertension and possibility of concomitant obstructive sleep apnoea. If fact, following my consultation today I told Mr. McLennan to go straight to Dr. Tablante with a note to state that he should undergo urgent investigation and treatment for hypertension. To more specifically answer some of your queries: 1) It is unclear whether or not there was a motor vehicle accident on 5.9.2000. 2) Any injuries which arose at the time of the incident of 5.9.2000 have stabilised and I am not convinced any permanent impairment arose from the incident. 3) Mr. McLennan certainly needs investigation and treatment for hypertension which might be aggravating pre-existing migraine and he should undergo investigation to exclude the possibility that he might have obstructive sleep apnoea which may be aggravating pre-existing migraine. 4) Because of the medical condition of episodic headache, it would seem he is currently unfit to return to reliable employment. I believe this will be a temporary situation." 142. Dr O'Neill reviewed the plaintiff again on 5 July 2005, along with some correspondence that had been sent to him by the solicitor for the defendant. He noted the history of the plaintiff having ceased taking all specific anti-migraine preparations as they had not proven to be of any benefit to him. Dr O'Neill made an observation of hypertension and gave the plaintiff a note to take to his general practitioner. At this review Dr O'Neill stated that he had no cause to change what he set out in his original report dated 21 January 2003. Dr James Maguire – consultant psychiatrist 143. On 20 July 2005, at the request of the solicitor for the defendant, the plaintiff was examined by Dr James Maguire, a consultant psychiatrist. Dr Maguire's report was issued on the same day as his examination of the plaintiff. The report of Dr Maguire acknowledged receipt of material which was not otherwise tendered in evidence and which was not attached to his report. The material in question was a document dated 12 April 2002 from Work Directions, a document dated 19 February 2001 from Dr L Basser and two documents from Dr L Rail respectively dated 5 February 2001 and 26 February 2001. 144. After reviewing the plaintiff's history, and after reviewing the material that had been provided to him, Dr Maguire expressed the opinion that there was nothing to suggest that the plaintiff had developed any recognized psychiatric disorder or any theoretical "psychological shock". Dr Maguire gave consideration to the plaintiff's history of poor memory and difficulty with concentration, and concluded that the overall history did not suggest that the plaintiff had developed any cognitive deficits as a result of the blow he had received to his head. He qualified that statement by suggesting that any possible genuine organically based cognitive deficits should be addressed by arranging psychometric assessment with an experienced neuropsychologist and possibly, a subsequent MRI scan. 145. Dr Maguire gave consideration to the plaintiff's behavioural history of being snappy and moody due to intense frustration at being unable to work or being unable to carry out any sustained activity without suffering severe migraine headaches, leading to him punching holes in doors at home. He noted that if this type of behaviour continued on a regular basis, it would justify the diagnosis of adjustment disorder in that his symptoms were the result of him having difficulties in adjusting to his neurological disorder comprising migraine headaches. 146. Dr Maguire concluded that on the basis of the overall history of migraine headache it was the headaches rather than the emotional reaction to them which prevented the plaintiff from resuming any meaningful employment. Dr Maguire suggested the plaintiff would benefit from 10 sessions with a psychologist to teach him some relaxation techniques and stress management strategies as a way of helping him to accept or deal with his medical condition. Dr Michael Delaney – consultant ophthalmic surgeon 147. On 29 June 2006, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Michael Delaney, a consultant ophthalmologist. Dr Delaney's report of that consultation was dated 21 July 2006. 148. Dr Delaney took a history of the plaintiff having developed severe and recurrent headaches associated with severe nausea and glare intolerance. He noted that the plaintiff had become extremely glare intolerant, needing sunglasses most of the time. He detected no abnormal findings on his examination apart from a constriction visual defect in the right eye which he thought required further testing in order to determine whether or not the defect was permanent. This is because as a result of his examination, Dr Delaney noted that the plaintiff was still suffering from a residual headache which had commenced 24 hours previously. He thought that the visual symptoms of glare intolerance and some constriction of the visual field were genuine and had been documented but was uncertain as to whether this was a transient effect of the headaches. If that evaluation was the subject of a follow-up examination it was not the subject of a report tendered in evidence. Dr Thomas Cromer – consultant endocrinologist 149. On 27 September 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Thomas Cromer, a consultant endocrinologist. Dr Cromer's report was dated 26 November 2007. 150. After reviewing the history Dr Cromer stated his belief that the plaintiff had developed diabetes because he had a predisposition to develop Type II diabetes and this was exacerbated by the fact that he was obese and did only minimal exercise. Dr Cromer recorded a history that the plaintiff weighed 103kgs before his injury and used to walk for exercise. He also recorded that the plaintiff no longer walked because it precipitated his migraines. 151. Dr Cromer thought that the plaintiff would have certainly developed diabetes even if he had not been injured, but he acknowledged the possibility that the diabetes has occurred a few years earlier because of the worsening of his diabetes and his inability to exercise. He did not fully explain the basis of that opinion. He noted that the plaintiff will eventually need insulin treatment and is at the risk of developing diabetic complications, including cardiovascular disease, peripheral vascular disease, neuropathy, retinopathy and nephropathy. He stated the plaintiff's life expectancy would be reduced from normal by about 10 per cent. Dr Cromer thought that on account of the diabetes alone, the plaintiff would be fit to engage in his pre-injury employment as a fast food store manager. Professor Michael O'Rourke – consultant in cardiovascular medicine and hypertension 152. On 16 October 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Professor Michael O'Rourke, a consultant cardiovascular and hypertension specialist. Professor O'Rourke's report was dated 23 October 2007. 153. After reviewing the plaintiff's history Professor O'Rourke stated he did not press the plaintiff with questions regarding the details of the incident because of the plaintiff's acknowledged memory lapses. Professor O'Rourke elicited from the plaintiff a history of the onset of diabetes and hypertension in 2002. After reviewing an extensive file of medical reports, clinical notes and Department of Defence records, he then addressed specific questions which were asked of him by the solicitor for the defendant. 154. He was of the view that the type of hypertension suffered by the plaintiff was of the essential variety, indicating it was idiopathic or of no known cause. In this regard he noted what he understood was the plaintiff's progressive weight increase from 69kgs to 94kgs whilst in the army, and then increasing to 116kgs in 1999. He was of the view that the plaintiff's hypertension preceded the injury in question, referring to diastolic blood pressure readings of 95Hg/mm in February and May of 1982 and another blood pressure reading of 170/100 on 13 October 1999. 155. Professor O'Rourke expressed the view that the combination of the development in the plaintiff of diabetes mellitus and hypertension indicated a prognosis for a reduction of 10 years in the plaintiff's life expectancy. Professor O'Rourke expressed the opinion that the plaintiff was in need of treatment for hypertension and for diabetes for so long as he remained obese. He was of the view that there was no relationship between the plaintiff's alleged injury and his hypertension as the hypertension was present before the injury and did not appear to have been worsened by this either in a direct way or indirectly, through the use of medication. 156. In expressing his opinion in this regard, Professor O'Rourke made no mention of the matter raised by Dr Cromer, namely, a relationship between the plaintiff's post-injury reduced capacity for exercise, his excessive weight and, from the viewpoint of Professor O'Rourke's speciality, the maintenance of his hypertension. This could be a matter of some significance but was not resolved in the expert evidence. It is therefore not open to me to speculate upon this aspect of the evidence, this being a matter on which the plaintiff bears the onus of proof. Associate Professor Paul Spira – consultant neurologist 157. On 16 May 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Associate Professor Spira, a consultant neurologist, who furnished his report on the same date. 158. Associate Professor Spira recorded that the plaintiff had told him he had been injured at the Holsworthy railway station car park on the date in question. His summary of what the plaintiff had told him was that whilst walking behind other cars he heard a vehicle from behind travelling in his direction, and thinking that there was plenty of room for the vehicle to pass, he did not look in the direction of the vehicle but continued to walk and was struck by the vehicle. 159. Associate Professor Spira summarised the subsequent history of the plaintiff having being knocked unconscious and being unable to provide any details regarding the nature of the vehicle or subsequent events until about 9.00am when he regained consciousness, limped towards his vehicle and sat in it for about an hour until he had gathered his confused thoughts and then drove home. 160. Associate Professor Spira summarised the plaintiff's complaints at the time as having sustained a blow to the occipital region of the head from where he was bleeding, having lacerations and bruises to the left hip, left knee and ankle, as well as bruising over the right shoulder. 161. After reviewing results of investigations against the history, including the history of medical consultations and treatment and the trials of various medications for migraine, Associate Professor Spira noted that none of the medications assisted in alleviating the plaintiff's migraines or the headache pattern. 162. Associate Professor Spira undertook a careful evaluation of the plaintiff's complaints, and listed 8 relevant points of analysis on page 2 of his first report. Those points dealt with the headache and the physical components of the plaintiffs post injury complaints. 163. Associate Professor Spira took a most detailed and careful history of the plaintiff's complaints of headaches following his injury. That history is replicated below: "1. Mr McLennan regards his headaches as being the main consequence of the accident and he informed that he has some degree of head (sic) throughout his waking hours. He is aware of a bifrontal and bioccipital pressure sensation which is with him at all times but some 2-3 times per week he will develop an accentuated left hemicranial headache. About 2/3 of the accentuated headaches tend to commence during sleep with Mr McLennan waking in the early hours of the morning with severe left hemicranial pain associated with a burning localised over the left suprascapular region. The accentuated headache is associated with marked photophobia nausea and vomiting and Mr McLennant informs that the may vomit repeatedly with the more severe attacks. The accentuated headache tends to last from 1-2 days during which time he is bed bound. (sic) McLennan is unaware of any triggering factors to the headaches. He treats the attacks with Tramal 200mg and Nurofen Migraine, both of which appear to reduce the intensity but do not abort the headache. He is no longer using any form of migraine prophylaxis. 2. Mr McLennan informed that with the exception of photophobia he has no significant visual complaint although he has been informed that he has some restriction of his peripheral visual field following an assessment by an ophthalmologist. He is not aware of any such field loss in his day-to-day activities and informs that with his spectacles he is able to read newsprint with each eye alone without difficulty." 164. Associate Professor Spira summarised the physical complaints by stating that the plaintiff was troubled with neck pain in this lower cervical area, which included a burning sensation at the base of his neck, with associated limitation of lateral rotation of the neck. There was a complaint of accentuation of the pre-existing back disorder so that the plaintiff then experienced a broad region of pain in the lumbosacral area, usually after making specific movements, noting the plaintiff's self-reported impression of having torn a muscle, also noting that this problem was more likely to occur after spending time in bed resting because of his headaches. Associate Professor Spira also recorded complaints of the plaintiff having right shoulder pain extending to the anterior chest. 165. Significantly, Associate Professor Spira noted that the plaintiff complained of a deterioration in his level of organisation and memory since sustaining his injury, with the result that he had problems with multi-tasking and remembering his children's birth dates. 166. Associate Professor Spira had the impression that the plaintiff's condition had plateaued, and that before the injury he had enjoyed good health, apart from a pre-existing back problem that related to his time in the Army. He noted that the plaintiff's pre-incident headache history as being during his school years experiencing one migraine a year which would cause him to be bed bound for a day, a situation which persisted up until the time of the incident. 167. Associate Professor Spira undertook a physical examination of the plaintiff and noted that he weighed 115kgs and wore dark glasses on entry to the consulting room but he had removed these during the consultation, appearing to tolerate the lights above whilst laying supine on the examination bunk. This was necessarily a subjective observation as to what was involved for the plaintiff with regard to such tolerance. Associate Professor Spira reviewed the CT scans of the skull, brain and neck and noted the presence of multi-level disk space narrowing and osteophytic lipping at the levels C3/4 and C6/7. 168. In setting out his opinion, Associate Professor Spira noted that the soft tissue components of the plaintiff's injury complaints had settled. 169. Associate Professor Spira discounted the plaintiff's complaints of memory impairment as not suggesting significant cognitive sequelae from the injury. He assumed that the reported deterioration of the plaintiff's level of organisation related to the fact that the plaintiff was distracted as a result of chronic headache. 170. Associate Professor Spira was of the opinion that the plaintiff had a migraine tendency before his injury, with infrequent attacks of the condition. He stated that it was not unusual for a head trauma to accentuate headache, and that in the majority of cases, over a matter of 3 to 4 years following injury, the attacks tended to wane and return to the pre-injury pattern of occurrence. He stated that since the plaintiff's current pattern of headache had been maintained since the injury, spontaneous resolution was therefore unlikely. He suggested further trials of anti-headache medications as being warranted in order to try and identify an effective prophylactic treatment. He identified the fact that the process was one of sequential trials of different medications for this purpose. 171. Associate Professor Spira addressed 4 specific questions that were raised by the solicitor for the defendant. The answers to those questions may be distilled as follows. 172. In the opinion of Associate Professor Spira, the plaintiff had post-traumatic tension-type migrainous headaches, which, on an acceptance of the history provided by the plaintiff, were materially contributed to and aggravated by the injury in question, increasing the frequency of the headaches from 1-2 times per year to 2-3 times per week. Associate Professor Spira stated that the prognosis for these headaches was determined by the response to therapy. 173. In the opinion of Associate Professor Spira, the plaintiff's complaint of photophobia is a typical feature of migrainous headaches. In his opinion, when the plaintiff experienced headaches he would be prevented from performing some home handyman activities but should be able to attend to his self care needs. 174. Associate Professor Spira commented that there was an association between the plaintiff's weight gain, hypertension and diabetes and the taking of the prescribed medication Nardil because of certain food interactions. Associate Professor Spira raised the suggestion that the plaintiff's account of not being warned about eating cheese and other foods whilst taking Nardil was hard for him to accept because Professor Lance had instituted the therapy. By implication, he doubted that Professor Lance would not have given the required dietary advice in this regard. In my view there is a procedural and fairness issue that precludes the drawing of such an inference in the circumstances : Mason v Demasi [2009] NSWCA 227 and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320. 175. The second and supplementary report of Associate Professor Spira was an investigatively inspired commentary dated 24 July 2007. It was prepared in response to questions asked of Associate Professor Spira by the solicitor for the defendant in a letter dated 19 July 2007 requesting his views on the likelihood of the plaintiff having suffered amnesia in its various forms and the relationship of this to the plaintiff's history of altered consciousness. In his supplementary report, Associate Professor Spira drew attention to the lack of eyewitness accounts of the plaintiff's unconsciousness, the lack of retrograde amnesia on the plaintiff's part, evidenced by the recollection of hearing a vehicle approaching from behind before his memory ceases, the possibility that the plaintiff may have reconstructed events to explain the mechanism of the incident, the absence of post-traumatic amnesia or a particularly brief period thereof. 176. Associate Professor Spira argued that given there was a period of 4 hours of loss of consciousness, he would have expected at least a few minutes of retrograde amnesia and at least an hour of post-traumatic amnesia, none of which featured in the plaintiff's history. He summed up his point of view in this regard by stating : "All in all the history is nebulous but I can see no way of clarifying the matter given that we are dependent on the information provided by Mr McLennan in the absence of an eyewitness. It is of course possible that Mr McLennan lost consciousness by another mechanism than being struck by a car and that his history is a reconstruction on his part of the probable mechanism of his situation. For example he may have suffered an epileptic seizure and in the process had some head trauma to explain the long period of unconsciousness. It is important to have a clear indication of what external evidence of injury was present when he was assessed by his general practitioner and in particular what signs (sic) bruising and/or abrasions were present over his head. Unfortunately this was clarified in the general practitioner's records. There may be a case for approaching the doctor to find out if he can recall what evidence of trauma was present at the time Mr McLennan was first seen on the day of the accident. As I outlined I did not believe that Mr McLennan had significant cognitive sequelae to the accident and his main complaint related to post-traumatic headache. Overall the difficulty in the analysis of Mr McLennan's situation is that we do not have a clear history of the central event in this case and Mr McLennan's reconstruction of hearing a car behind him and assuming that he was struck by the vehicle ideally requires some corroboration to the effect that he had injuries appropriate to such trauma. I trust the above satisfies your requirements but should any aspect need clarification please contact me" 177. Professor Spira gave oral evidence after observing the plaintiff and Dr Tablante give their evidence. The defendant sought to obtain a comment from Professor Spira concerning whether or not he had seen any indication given by the plaintiff that he was suffering from headache on the days he was observed giving evidence. This required that a preliminary question be asked and the question and answer proceeded as follows: "Q. What is the method of diagnosing migraine or headache? A. There are no objective features of migraine, or headache for that matter, there are some associated observations that one can make but in terms of observing a patient you cannot tell whether they have or do not have a migraine. If we're talking about a severe headache or severe migraine the associated features are usually pallor. People with migraine are often, well we describe them as pale as a sheet, particularly if they've got significant nausea associated with the headache, but beyond that there is nothing that I could indicate by just looking at Mr McLennan as to whether he's suffering headache at that point in time." 178. The defendant sought to develop questions aimed at establishing whether Professor Spira was able to gauge the intensity or level at which the plaintiff was suffering from a headache during his observations. Questions along those lines were objected to and rejected because there had been no prior expert opinion in a report served in compliance with the rules: UCPR r 31.23. 179. The matter of weight gain in the case of migraine sufferers taking medication was explored in the evidence of Professor Spira. He explained that most anti-migraine drugs are very powerful appetite stimulants. 180. Professor Spira commented that he had not seen the plaintiff's pattern of headaches before, the headaches having continued for 9 years in such a pattern. He described the plaintiff's presentation as the absolute extreme of the severity spectrum in 30 years of experience in dealing with the condition. He stated: "Q. And what is unusual about it? A. The fact that it - his headaches have been absolutely resistant to all medications tried. There was one brief period of response to Desyrel, apparently, and that's the only response that he's demonstrated in terms of either acute phase agents or prophylaxis. I think that that's a most unusual pattern. I - I can think of a few cases where I have seen over 30 years individuals who have not responded to many, many drugs. I don't think I've seen anyone who's been as - as resistant as this but it's more along the severity spectrum that I regard this to be right over on the extreme because this high frequency of nausea and vomiting is most unlike migraine." 181. In giving that evidence Professor Spira was not suggesting that the plaintiff did not have migraine. He agreed that in coming to a diagnostic conclusion the clinician was totally dependent upon the history given by the patient. In this regard he agreed that the plaintiff's prior history of having an annual attack of migraine was an example of such an assumption. 182. Some time was spent on what was meant by the neurological concept of loss of consciousness as this had some bearing on the assessment of the plaintiff's evidence. In this regard Professor Spira gave the following evidence: "Q. From a hypothetical point of view, what is loss of consciousness? How would you define it? A. Loss of consciousness in terms of an objective observation by someone else is usually to see someone who is in a coma state, lying on the ground incapable of moving and totally unaware of their surroundings and often unrousable. Q. So if Mr McLennan was to say that when he became aware of his surroundings he was lying on the ground and that he became slightly - he was slightly confused as to where he was or confused as to where he was, the description of coming to or the waking up, is that an adequate a definition of unconsciousness that we can get to? A. It is certainly consistent with his having been unconscious for a period of time, yes. Q. And if say he was unconscious for a period of half an hour does that relate in some way to whether or not there would have been retrograde amnesia? A. I would expect retrograde amnesia with unconsciousness of half an hour, certainly. Q. And have got you got any examples of head injuries leading to unconsciousness where the period of retrograde amnesia might be of one period or another? A. Well it's dependent on the severity of the head trauma obviously and the longer the duration of unconsciousness, the longer the period of retrograde amnesia one normally sees. But even short periods of five minutes of unconsciousness can be associated with significant retrograde amnesia. For example, on a football field on any given Sunday you may have five minutes of unconsciousness on the field and the player may not be able to remember half of that half. So certainly consciousness of minutes with minutes of - sorry, unconsciousness of minutes can see minutes of retrograde amnesia. Q. Well in this case we've had various descriptions, I think you've heard some of them expressed by the evidence of the plaintiff, that he got out of his motor car, he did something, he then walked to the back of the car and across a parking bay and was behind the next car along and somewhere in that period of time apparently he heard the noise of a motor vehicle and experienced some lights. If you were to assume that the movement from the back of his car to a spot indicated by him took about six or eight seconds, do you believe that - what do you say about the likelihood of him being able to recall events that occurred in that time? A. If he was unconscious anywhere between half an hour and four hours I would expect him to have a retrograde of the order of minutes." 183. Professor Spira was asked to comment upon the evidence given by Dr Tablante concerning the theory of the plaintiff having been struck from behind by a motor vehicle. In this regard his evidence was: "Q. And you've also had a description by Dr Tablante of the places where he saw bruising on the plaintiff's body. Now that you're aware of those things are you able to speak of mechanisms of the injury that this man sustained having regard to what he's told you? A. Everything's purely hypothetical, I mean no-one knows how these injuries occurred, but if it's so that he had bruising just at or above his knees, then one assumes that there was some impact with the back of his knees. As to whether that was the initial impact or later we don't know. The expectation is that if what actually happened was that he was struck by a motor vehicle from behind, with the point of impact being the back of his knees and that both knees were injured, then the forces would've been directly from behind Mr McLennan, the expectation is that after that initial impact with the back of the knees, presumably the bonnet may well have struck higher and pushed Mr McLennan forward, in which case he would've expected to have landed face first. I would've expected to have seen facial injuries, facial abrasions, possibly abrasions over the hands if he would've protected himself or had the time to protect himself. LIDDEN: I object to this as well, your Honour; not in the report, no evidence of it. HIS HONOUR: Well it's given on a hypothetical basis, Mr Lidden. LIDDEN: I understand, your Honour. POULOS: And, your Honour, because there was no medical material available to him at the time that could be reasonably obtained by us except the - your Honour has seen the notes, we gave the doctor the notes and they have been read with the greatest deal of difficulty and they had to be transcribed by Dr Tablante. So we've come here doing the best we can and my learned friend has raised the question of what his notes mean and has raised the question of whether "consistent with" means "caused by" or whether it's an assault or whether it's a motor car accident. We've come to this court not knowing what Dr Tablante's evidence really would be and we're in a position now to have to deal with that. HIS HONOUR: Yes, I'll allow the question but, Mr Poulos, don't assume that I've seen Dr Tablante's notes. What I have seen is the extract from his notes which formed part of exhibit A and that commence from 5 November 2003 up to 2 June 2005. What you did was have Dr Tablante read his earlier notes onto the record. I haven't-- … Q. Now, doctor, if the bruising was not at the knee level or thereabouts but was higher, around the buttock region of the plaintiff, what does that imply? A. It would imply that the forces would have again been transmitted in such a way as he would have been pushed forward, perhaps even more so than with an injury around the knee. Q. Why so? A. By the fact that there's less give in the buttock region and that he would have been pushed forward and would have expected to have sustained, assuming that both buttocks are involved so that it's not a blow directed from the side but rather a blow directed from directly behind the, the patient. He would have been pushed forward and would have expected to land on his face and hands. HIS HONOUR Q. When you say excluding a blow from the side, if there had been an angled blow would you have expected nevertheless that there be injuries to the face or would another possibility arise? A. Well, no, other possibilities arise. If it's symmetrical posterior above knee or bilateral posterior below buttock then clearly the force was directly from behind. If it's on one side then he could have landed on the side and we could have seen injuries over the parietal region or even over the occipital region, just depending on which way the forces were, were directed. Q. You may recall the plaintiff describing how he came to lying between two parked cars. I suppose one of the possibilities is that if he was struck from an angle that that could explain how he was thrown into that position? A. That, that is possible that there may have been more force on one side than the other, but if the evidence is that there is bruising on both sides equally. Q. If that assumption was made, that would explain the absence of facial injuries? A. If it was angled. Q. Angled low. A. If it was angled then I would expect injuries over the side of the head rather than over the back of the head. I mean the, the difficulty is explaining the occipital injury in this case because whether it's from the side or whether it's from the back, one would not expect an injury over the back of the head. Q. Well I don't know if there is a science of reconstruction of this type of injury, but from my own part I'm imagining a fall and a roll, wouldn't that explain it? A. Not, not for an occipital. I mean it sounds like there was bruising over the back of the head and in fact Mr McLennan said to me that he was bleeding from a wound at the back of the head, so I think that requires a direct blow rather than an abrasion or glancing blow. Hair would protect you against something like that. In order to get bleeding you would need to have a direct blow and splitting of the skin." 184. Professor Spira discussed the mechanism of the plaintiff's bruising. He argued that for the plaintiff to have had bruising on his neck he would have to have been struck on the neck by something. 185. Professor Spira stated that the longer the period of a person's unconsciousness, the longer would be the expected period of retrograde amnesia. He accepted that a blow to the head, if considerable, could be sufficient to cause disorientation to the point that the plaintiff could have sat for a prolonged period in his motor vehicle after the incident. Professor Spira accepted that although he obtained the history of this being for one hour, he accepted that in the plaintiff's case it could have been for a longer period: "So we're talking about a period of several hours as distinct from four hours, five hours, but several hours. Does that make any difference to the opinions that you've expressed? A. You mean with respect to retrograde amnesia? Q. Yes. A. The longer the period of unconsciousness, the longer the retrograde amnesia expected. Q. You heard Dr Tablante give evidence about what he observed about bruising. How long does bruising take to develop after a trauma? A. Depends on the severity of the trauma, but usually a matter of hours you can start to see bruise develop and it tends to develop for the next day or two. Q. Right. And what colours does it develop to? A. Well, at it's peak it's blue and then in regression it can go green/yellow and finally disappear. Q. If you add to the period of unconsciousness a statement by way of hypothesis that he sat in his car for two to three hours afterwards, what does that say to you about the effect of the blow on the head? A. Well it was a considerable blow. We would have to say that that was a considerable blow to disorientate him to the point where he had to sit for a prolonged period in his motor vehicle. I, I obtained a history of one hour but I accept it could have been longer. Q. And of course, I want to make it clear, it's not the same period of unconsciousness, it's a separate period of sitting in your car? A. He was quite clear about that, yes. Q. And after he went home would you have expected him to recover his senses to the point where he could give a graphic description of what occurred to him, if all those things had happened? A. Only as much as he remembered, yes. I mean as, as to when he gave that description, you mean the description he gave to his wife? Q. Yes. A. Well, as I said, it's dependant on how much he's expected to remember in light of the fact that he was unconscious for hours on end. HIS HONOUR Q. What is your clinical view of the period of confusion receding and memory reintegrating? A. I mean this, this does happen but we're talking specifically about retrograde amnesia here. Retrograde amnesia tends to be pretty fixed. What can come back is the post-accident period, that period that's often referred to as post-traumatic amnesia, even though when it's officially measured it might be measured at a fixed level. Individuals can regain some of their memory of their hospitalisation, for example, which they will not have the time." 186. Professor Spira stated that the vast majority of people who suffer from migraines are capable of working full-time. 187. In cross-examination Professor Spira agreed that the fact that both of the plaintiff's knees were bruised in the incident suggests that the primary force was from behind. He also agreed that because there was bruising to the plaintiff's right side and around the buttock region, that there was some indication of the force being applied from one side. He also agreed that on being struck by a vehicle, a person could, in some circumstances, go forward in some sort of a rolling manoeuvre. The significance of this evidence was that it served to demonstrate the difficulty of seeking to precisely analyse the mechanisms and mechanics of the occurrence of an injury in the absence of eyewitness accounts. 188. Professor Spira conceded that some allowance must be made for the confusion the plaintiff would have experienced at the time of injury when assessing his estimate of the time interval between his last memory and his next memory of finding himself on the ground. Professor Spira had been working on the assumption that the period of unconsciousness was as little as half an hour and from this I considered this evidence to be of some significance in achieving an understanding of what occurred to the plaintiff in the period immediately following the incident he described, he expected at least a few minutes of retrograde amnesia. 189. Professor Spira stated that if the gap in memory was something that amounted to a matter of seconds, this would never be defined in medical terms as retrograde amnesia. He explained an alternative basis of a gap in memory as being the adrenaline effect namely, the shock of the incident leads to a lack of recall of every second in the period whilst a person has been thrown around. He stated that such a gap was not properly described or assumed to be retrograde amnesia. Ms Sue Barbuto – consultant occupational therapist 190. On 27 June 2007, at the request of the solicitor for the defendant, the plaintiff underwent an occupational therapy assessment at his home, at which time he was interviewed for 2 hours by Ms Sue Barbuto, an occupational therapist. The report which followed that assessment comprised some 27 pages and included a detailed calculation spreadsheet that was dated the same day as the consultation. 191. Ms Barbuto noted that in her assessment the plaintiff was having difficulty finding appropriate words when conversing, he complained of short-term memory problems and was unable to recall the birthdates of his children and was frustrated at his forgetfulness. 192. Ms Barbuto reviewed the plaintiff's domestic activities and expressed her view that he was independent with self-care activities such as showering, drying, dressing, grooming and toileting except when he was suffering from migraine. 193. Ms Barbuto noted that before his injury the plaintiff assisted with domestic tasks but since his injury, he has not done so. Those tasks encompassed activities such as vacuuming, mopping, washing and drying dishes, assisting with loading the washing machine, occasional ironing, cooking of meals, assisting with the shopping, taking out the garbage and cleaning outside the house. She noted the plaintiff's complaint that he no longer assisted with these activities. She said the plaintiff told her that he now mows the lawn but much more slowly, and it takes him longer to do so when he is not assisted by his son. 194. In setting out her assessment, Ms Barbuto expressed the opinion that some of the plaintiff's reported pain levels were exaggerated and suggestive of illness behaviour. She stated that when she saw the plaintiff sitting and talking, he appeared not to be showing signs of pain or stiffening of his head and neck. In my view such comments are of limited probative value and could be seen to be unfair without involving the plaintiff in a discussion on those matters to give him an opportunity to offer his own view upon such subjective comments. 195. On taking an overall view of the report of Ms Barbuto, I consider that she sought to unfairly criticise the plaintiff for his motives, behaviour and the extent of his disabilities. For example, she implied a lack of genuineness in the plaintiff's neurological complaints on the basis that it apparently took the plaintiff 6 months to see Professor Lance after ceasing to see Dr Rail. She appears to have made that criticism apparently without fully exploring the reasons for that delay. There were other difficulties which caused me to doubt the utility of her report, including her critical commentary on the plaintiff's walking, sitting and standing tolerances, matters which, on the face of her report, as a matter of fairness, were not balanced with any summarised comments from the plaintiff on those matters of her personal and subjective assessment of the plaintiff's inabilities and abilities. As a result, I prefer the medical assessments to Ms Barbuto's occupational therapy assessments. 196. I formed the view that the probative value of the report of Ms Barbuto was limited to her contribution to the analysis for the estimation of the number of hours per week the plaintiff required for domestic assistance. She identified those hours as 1.25 hours per week for past domestic assistance between the time of the injury and the time of her assessment. I propose to take those views into account when assessing damages for the value of domestic assistance. E. FINDINGS – CREDIT AND LIABILITY ISSUES 197. The defendant has submitted, correctly, that the resolution of the issue of the credit of the plaintiff is central to the issues of liability and damages. In the paragraphs that follow I set out my findings on the credit and liability issues calling for determination in the proceedings. Issue 1 - The credibility of the plaintiff's testimony 198. The defendant challenged the credibility of much of the evidence given by the plaintiff and ultimately submitted that the plaintiff's account of events should not be accepted in the absence of corroboration, or unless competing versions are glaringly improbable. The attack upon the plaintiff's credit, and the attack upon the reliability of his testimony encompassed many areas within the evidence. The defendant's credit attack on the plaintiff impacted on liability and damages issues. The defendant also attacked the credibility of aspects of the evidence given by the plaintiff's wife and the evidence given by the plaintiff's treating general practitioner, Dr Tablante. Attack on the credit of Dr Tablante 199. Dr Tablante gave his evidence under circumstances that were personally difficult for him as he was unwell at the time. This was not a matter that detracted from his credit. The nature of the attack on Dr Tablante's evidence included the credibility of his view that the plaintiff had been hit by a motor vehicle. 200. The defendant pointed to a 6 September 2000 handwritten entry in Dr Tablante's clinical notes, Exhibit "AA". Those notes were written at the plaintiff's first post-injury consultation with Dr Tablante, who acknowledged that his notes were sparse. At the outset, it has to be recognised that these notes were not intended to be a transcript of the conversation between Dr Tablante and the plaintiff at the consultation in question. The notes were merely an aid to memory for Dr Tablante and have to be read and understood in that light. The notes are difficult to read but Dr Tablante explained the notes in his oral evidence. The focus of the notes was the fact that the plaintiff had been hit from behind and injured at Holsworthy station and that the plaintiff had no recollection of the incident. The remainder of the notes related to the record of the findings on examination. In my view these notes, findings and Dr Tablante's aided recollection of his consultations with the plaintiff meant that Dr Tablante was reasonably placed to offer a relevant opinion on the mechanism by which the plaintiff had sustained his injuries. 201. The defendant pointed to Exhibit "17", which was Dr Tablante's referral letter to Dr Rail, which was dated 28 September 2000, in which Dr Tablante wrote "… post MVA - hit by ? car – no recollection of being hit'." 202. The defendant then pointed to Exhibit "31", which was Dr Tablante's referral letter to Professor Lance, which was dated 11 March 2001, in which Dr Tablante wrote ".. pt on way home from work was ? assaulted at train station. pt has no recollection of incident …". 203. Also relevant, but not referred to in the argument, was Exhibit "W", which was Dr Tablante's workers' compensation medical certificate, which was dated 12 September 2000, in which Dr Tablante wrote "? hit by vehicle at railway carpark (Holsworthy)." 204. The defendant submitted that the differing descriptions written by Dr Tablante were curious, and argued that Dr Tablante's explanation that the reference to an assault in the referral letter to Professor Lance could include being struck by a car, was unconvincing. 205. In my view, those submissions proceed upon the flawed premise that the various notes and correspondence prepared by Dr Tablante should be regarded as forming part of some liability investigation where it was important to investigate and record matters of detail concerning the precipitating event. Instead, it is clear that Dr Tablante was merely recording the historical fact that the plaintiff had been injured and he was properly noting that the plaintiff could not explain precisely how he was injured. In the context of the referral letters, that latter record was of obvious relevance to the clinical communication of the fact that there had been a head injury, a matter to which I shall return on the separate question of the credibility of the testimony of the plaintiff. 206. It was clearly not the role of Dr Tablante to investigate the liability question in the same detail, and for the same purpose as would be the case with a solicitor taking instructions, or the preparation of evidence on the liability issue in a formal interview to obtain liability evidence. In my view, in the circumstances of the injury, as understood by Dr Tablante, he was fully entitled to entertain a degree of speculation as to how the injury to the plaintiff could possibly have occurred. However I consider that the defendant's attempt to use that speculation against the plaintiff in these proceedings by seeking to discredit the explanations of his treating doctor amounts to a misuse of the material having regard to the original purpose of that material : Mason v Demasi [2009] NSWCA 227 per Basten JA at [8] ; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [2]. 207. A further challenge to Dr Tablante's evidence was his account of the plaintiff having told him that he had seen the headlights and heard the vehicle approaching whereas there was no mention of that history in his progress clinical notes Exhibit "AA". In my view that submission overlooks the fact that those notes were not intended to be a transcript. The fact that Dr Tablante's account of the plaintiff's version did not accord with the detail of what was included in the referral letter to Professor Lance overlooks the fact that Dr Tablante was referring the plaintiff for treatment and not for evaluation of the liability events in question. The referral letter was in only very brief terms and would not ordinarily be expected to fulfill the purpose the defendant now suggests. 208. I reject the submissions made by the defendant concerning the credibility of the testimony of Dr Tablante. Attack on the credit of Mrs McLennan 209. Mrs McLennan gave the distinct impression that she regarded the need for her to give evidence in the proceedings as somewhat of an imposition. She had other pre-occupations and she was stressed about having to be at court when she needed to be at a function at work. Her conversation with the cross-examiner was not a friendly one, and was in parts combative, with mostly short clipped answers. She was clearly a witness who had an allegiance to the plaintiff and his case. This was not surprising in the circumstances, but this view does have implications as to how her evidence should be weighed on critical matters. 210. The defendant's attack upon Mrs McLennan's credit as a witness raised many matters, including the probity of her communications with her lessor, the Department of Housing, which raised questions, but essentially related to the following significant topics. 211. The first topic comprised the similarity of her account of what the plaintiff had told her of the events of his injury and the plaintiff's evidence in the proceedings. In my view that was not at all surprising since the subject would have undoubtedly been discussed at length between them in the family setting over the years that had passed since the year 2000. Notwithstanding that view, given the nature of the process of human recollection, the significance of such similarity compels me to view her evidence with caution. 212. The second topic comprised the credibility of her evidence to the effect that she was uncertain as to whether, in her discussions with the plaintiff over the years, she had been told about his version of the events concerning his awareness of the lights of the vehicle in question and the sound of the engine of the vehicle revving. An argued implication of this evidence was that she was not being completely forthcoming on the issue, out of a perceived concern for the effect her answer might have on the outcome of the plaintiff's case. This is another basis upon which her evidence should be viewed with caution. 213. The third topic comprised her assertion that the plaintiff had not received workers' compensation insurance monies until after he had started work at Woolworths, having earlier resigned his employment with Hungry Jacks by arrangement to ensure the more efficient handling of his workers' compensation claim. I do not regard that challenge to Mrs McLennan's credit to be totally fair because, although she was the person in the family responsible for financial matters, including the banking, her answer has to be viewed in the context that her banking records were not before her at the time she was being questioned about events that had occurred over 8 years beforehand. If her answer was inaccurate, I consider this to be a matter of limited probative value. 214. The fourth topic comprised her evidence that the plaintiff would not go outside without wearing his sunglasses, a matter that was shown to be at variance with what was shown on the DVD which was Exhibit "14". I do not regard that challenge to Mrs McLennan's evidence to have persuasive force for several reasons. The questions in cross-examination were framed generally and were not anchored to a specific occasion, the answers were qualified by the statement that the plaintiff had left the house on occasions without wearing his sunglasses, Mrs McLennan could not possibly give an all encompassing answer to these questions and she could not speak for the plaintiff as to what, in her perception of his perception, amounted to bright lighting, a necessarily subjective judgment. I consider this challenge to Mrs McLennan's evidence to have limited probative value. 215. The fifth topic was the credibility of her evidence that her husband was not working at Woolworths in November 2000 when she knew the Woolworths employment documents had been tendered. The challenge appears to be to the veracity of her testimony that she had not read those documents. I do not consider her evidence was significantly shown to be wanting in this regard. It emerged in cross-examination, in the context of this issue, that she had never, in the 9 years since the events in question, ever made a written statement about the facts of the matter and her evidence was based on unaided memory. In these circumstances it is not surprising that her memory was found to be wanting on such details on formal questioning, nearly a decade later. 216. The sixth topic was her evidence concerning the level of domestic care and assistance she had provided to the plaintiff over the years since his injury. The defendant pointed out that when her estimate of the combined hours of work and care for the plaintiff's claimed injury related care needs were totalled, this amounted to an average of 85 hours per week, 55 hours of which were alleged to be for the plaintiff's care needs. The defendant submitted this was both fanciful and unrealistic having regard to the tasks required. I accept the general tenor of that submission and I have set out my reasons for that view in my reasons for assessment of the plaintiff's claim for damages for domestic assistance. Given that her evidence was given in respect of events that spanned nearly a decade, without the aid of a statement, diary note or a schedule of events and tasks to refresh her memory, it is not surprising that this evidence was revealed to be unrealistic and inaccurate. However, that matter, being an aspect of preparation of a case for litigation, is not a matter that necessarily reflects adversely on her credit. 217. The seventh topic involved what I consider to have been minor discrepancies of description as to the precise location of the bruising visible to the back of the plaintiff's legs shortly after his injury, comparing Mrs McLennan's descriptions of the location of the bruising to those of Dr Tablante. I do not consider such matters to be of critical determinative importance. This is because the descriptions have to be viewed in a broad context, namely the events under discussion had occurred nearly a decade before the evidence was given, the evidence was given by Mrs McLennan from unaided memory, and it was not so out of general kilter with what was described by the plaintiff and by Dr Tablante. Accordingly, I do not consider the evidence describing the location of the plaintiff's bruising should be regarded as having been discredited on this point. A further consideration arises in this regard. 218. The debate about whether the plaintiff had bruising to the buttocks and upper thigh region, as described by Mrs McLennan, or to the calves and lower legs at the back of the knees, as observed by Dr Tablante, may possibly be explicable by reference to the evidence of Associate Professor Spira who acknowledged the effect of the forces of gravity in connection with the evolution of bruising in muscle tissue. In this regard, it must be recognised that Mrs McLennan saw her husband's bruising on 5 September 2000. Dr Tablante saw it on the following day. Having regard to the evidence of Associate Professor Spira as to how bruising develops over time, and how gravity affects the appearance of bruising, this is a matter that cannot be dismissed with the stridency that was submitted. That said, as Associate Professor Spira was not specifically questioned on the bruising to the legs. Other than identifying this area of doubt, I will not proceed to make a finding on this issue : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. On the state of the evidence, the issue remains an unresolved curiosity. 219. Having reviewed the challenges made to the credibility of the evidence of Mrs McLennan, although I accept she had an interest in the litigation, and was at times antagonistic to the cross-examiner, I do not regard her to be a discredited witness. That said, I do not regard her evidence as being reliable on the issue of the extent to which she provided the plaintiff with domestic assistance following his injury. That said, because of her allegiances in the litigation, I propose to view her evidence with caution on critical matters before accepting her testimony. Attack on credit of the plaintiff 220. The attack on the credit of the plaintiff was extensive and centred around some 19 topics of evidence with some sub-topics, some of which overlapped. The defendant submitted the plaintiff's credit as a witness has been substantially and tellingly damaged as a result of matters that arose in cross-examination. Those topics of challenge are listed as follows in sub-paragraphs (a) to (s): (a) The plaintiff's account of his pre-injury employment history; (b) The plaintiff's account of his pre-injury health and compensation history; (c) The plaintiff's recollection of a potentially relevant pre-injury shooting incident that he had witnessed to have occurred outside his work; (d) The plaintiff's account of the events before and immediately after the injury; (e) Variations in the versions of the events attributed to the plaintiff as contained in medical records and reports; (f) The credibility of the evidence of the plaintiff concerning his attempts at due inquiry and search; (g) The probity of the plaintiff concerning his non-disclosure of a period of post-accident employment with Woolworths whilst he was at the same time receiving workers' compensation benefits in respect of the incident in question; (h) The dealings of the plaintiff and his family with the Department of Housing; (i) The probity of the plaintiff's income tax returns; (j) Matters arising from the plaintiff's relationship with Centrelink; (k) The evidence of the plaintiff concerning his involvement in golfing activities; (l) Issues concerning the evidence of the plaintiff regarding fluctuations in his weight; (m) The evidence of the plaintiff concerning his level of involvement in housework before and after his injury; (n) The nature and extent of the plaintiff's claimed disabilities; (o) The post-injury attempts by the plaintiff to obtain employment; (p) The plaintiff's use of sunglasses in court; (q) The DVD evidence of some of the plaintiff's activities; (r) The significance of the plaintiff's computer based leisure activities; (s) The issue of the plaintiff's residual work capacity. 221. Following my consideration of those submissions in the context of the evidence as a whole, and having taken into account the contrary submissions made on behalf of the plaintiff, I have concluded that some of the defendant's credit challenges have been sustained and others have been overstated. In the result, the defendant has succeeded in also identifying important matters that adversely impact upon both the reliability of the plaintiff's evidence, the preparedness of the plaintiff to provide misleading information, and the truthfulness of the plaintiff's evidence on certain issues. 222. In the paragraphs that follow I will analyse the matters relied upon by the defendant to support the challenges that it has made against the plaintiff's credit as a witness. As to (a) and (b) – pre-injury employment and compensation history 223. The defendant claimed that the plaintiff had not been completely candid with regard to his evidence of his employment history and concerning his completion, on 12 October 2000, of an application form seeking employment with Woolworths. It seems to me that there were four aspects to that submission. 224. The first aspect concerned the plaintiff's non-disclosure of the period of his employment with Waugh & Josephson. In cross-examination the plaintiff was asked to consider the content of his application form. He acknowledged that the form did not contain any reference to his 2 to 3 year period of employment with Waugh & Josephson between the years 1991 to 1992. When the plaintiff was asked about this issue he shrugged it off by saying "it was just a rough fill in of jobs", thus implying that the omission was not important. When the plaintiff was asked a further question as to whether he had given Woolworths an inaccurate history of his earlier employment, he addressed the question by stating that he had given Woolworths "a cut down history of my employment." 225. The second aspect of this attack concerned the accuracy of the disclosed period of employment with KFC. The Woolworths application form shows that period of employment to be between the years 1990 and 2000. The plaintiff conceded that period, as stated, was incorrectly described in the application form. There is a further aspect of this item. Exhibit "27" shows that when the plaintiff applied for his position with KFC on 18 July 1990 he omitted to disclose to KFC that he had been employed by Waugh & Josephson after leaving the army. The compelling inference from this is that he did so to conceal the severity of his back injury in 1977. In that form he represented that the last occurrence of his back disorder was in 1977 when that was patently untrue. The defendant also points to the fact that when on 12 October 200 the plaintiff filled out the application form for employment with Woolworths he not only misrepresented the duration of his employment with KFC (1990 – 2000), but he again omitted any reference to his employment with Waugh & Josephson : Exhibit "E". The defendant submits this is evidence of a longstanding preparedness on the part of the plaintiff to engage in deception in order to obtain an advantage for himself. 226. The third aspect was the plaintiff's non-disclosure of his employment with the Hungry Jacks organisation. It was submitted that the significance of this was that if it had been disclosed, this may have adversely affected the plaintiff's prospects of being engaged by Woolworths and it may have also had an impact on his workers' compensation claim and entitlement to further payments. 227. The fourth aspect was that the omission of the disclosure of past employment with Waugh & Josephson had the effect of concealing the plaintiff's prior compensation history, which, if known by the worker's compensation insurer of Hungry Jacks, may have had a detrimental effect on the plaintiff's employment prospects with Woolworths. 228. The defendant submitted that these omissions and the inaccuracies should be taken into account in relation to credit and that it should be construed as a matter detrimental to the plaintiff's credit. 229. In cross-examination the plaintiff was reminded that whilst he was in the employ of Waugh & Josephson, he had a period during which he was receiving workers' compensation payments for some months. He stated that these payments were in respect of an aggravation to a pre-existing injury that occurred in circumstances where he had been involved in lifting a piece of earthmoving equipment with the assistance of another person when the other person dropped his part of the load and caused the plaintiff to "pop a disc or slip a disc" which resulted in "severe swelling in the back." The plaintiff stated that following this event, he was taken to Singleton Hospital, following which he saw a doctor in the hospital, and was then referred for physiotherapy. 230. The plaintiff was asked why, in the year 2000, he would have forgotten to disclose that matter. In answer he stated :"It just totally slipped my mind." He added that he always disclosed his back problem. In fairness to the plaintiff, it has to be recognised that a question seeking an explanation of reasons, as to why a detail now seen as relevant, was left out of a job application form filled out some 9 years earlier, is necessarily a difficult one to answer on the spot and without notice. The problem is accentuated in the case of someone claiming to have memory and concentration problems. On the other hand, confrontation by forensic ambush is the manner in which credit challenges have traditionally proceeded in cases such as this. The plaintiff's evidence has to be assessed in the light of these considerations. 231. The plaintiff submitted the matters raised by the defendant were irrelevant and drew attention to the fact that when the plaintiff completed the forms he did not have access to his personal details and might have given more accurate answers if he had consulted his records for the purposes of ensuring accuracy. 232. The effect of the plaintiff's answer to the suggestion that he knew that sometimes people tried to hide their injury history because they might be desperate to secure work was that he had disclosed his back injury. My impression of the plaintiff's non-verbal reply to that question, when it was repeated, was that the plaintiff had assented to the proposition. However, the questioning did not proceed to the next step of positively asserting that this phenomenon applied to him, and that he had engaged in that activity. Nevertheless, an inference to that effect is open to be drawn on that evidence. 233. In this context, I find myself unable to ignore the reality that there is a perception amongst some job seekers that to identify a history of having received compensation when applying for employment may, in some circumstances, stigmatise or thwart an application for employment. The perception is that some employers do discriminate against people with injuries in this regard. This is a factor that courts take into account in appropriate cases when assessing damages for future impairment of earning capacity. Absent the case of an understanding employer, it is recognised that in some circumstances, the able-bodied competitor for employment stands a better chance of securing a position when compared with the situation of someone who carries an impairment due to injury and disability. 234. I consider that the omissions by the plaintiff relied upon by the defendant go beyond mere forgetfulness that may be put down to memory impairment due to a head injury or impairment of memory due to concentration difficulties because of headaches. I take that view because of the circumstances in which the omissions arose, the inter-relationship of the omissions which do not connote coincidence in my view, and because the plaintiff stood to gain from the omissions in question. 235. The effect of the defendant's focus on these matters, taken together with the non-disclosure of the Waugh & Josephson employment to Woolworths, gives rise to an inference that the plaintiff was withholding relevant information about his work history, prior health and compensation history from a prospective employer because he wanted to obtain work. I consider that in the circumstances, that inference is fairly drawn against the plaintiff in this case. That is so particularly because the plaintiff's employment with Hungry Jacks was also not disclosed to Woolworths, even though the claimed journey injury, which is the subject of these proceedings and which arose whilst in that employment, was disclosed. I consider that these matters would have been fresh in the plaintiff's mind at the time he applied for work with Woolworths. The significance of the inferences that arise needs to be determined. 236. On the one hand, it is to the plaintiff's credit that he sought employment to meet his family and financial responsibilities. On the other hand, it could be seen to be adverse to his credit that he saw fit to achieve this by selectively limiting the disclosures that were being sought from him in the Woolworths employment application form. Against that view is the disclosure of the incident in question, by which the plaintiff disclosed the fact of the incident which is the subject of these proceedings, together with the fact that he had claimed compensation. 237. I have found this issue somewhat difficult to weigh because there is absent from the analysis any evidence in the form of file notes or other evidence from the interviewer at Woolworths that could throw light upon whether these issues were canvassed at the interview or whether, they were considered to be of any relevance to the position being applied for. 238. I have nevertheless concluded that although, perhaps understandably, the plaintiff withheld relevant information about his previous employment, health and compensation history when he applied for the position with Woolworths, this is a matter that should be viewed as adverse to his credit. This is because, by omitting reference to his employment with Hungry Jacks, he effectively prevented the prospective employer from making any enquiries of the previous employer about the incident in question. 239. The significance of the point was that at the time of the job application to Woolworths, the plaintiff was claiming, and receiving, albeit with delays, payments of workers' compensation. I consider that he must have known that the disclosure of that fact would have created potential obstacles to his employment prospects with Woolworths. I therefore find that the plaintiff consciously withheld relevant information from Woolworths when he applied to that company for employment. 240. I consider that these non-disclosures adversely reflect on the plaintiff's credit in that they demonstrate that the plaintiff has in the past been prepared to conceal relevant information in order to try and secure an advantage for himself. The relevant advantage was employment in the face of his non-disclosed impairments due to injury. I find that this is a relevant and significant matter to be taken into account when assessing the credibility of the plaintiff's testimony as a whole in this case. 241. The question of whether the fact of the plaintiff's application for employment with Woolworths was truly indicative of a fitness for employment at that time will be analysed separately in connection with the claim for damages for past loss of earning capacity. As to (c) – plaintiff's recollection of a pre-injury shooting incident he witnessed 242. In challenging the reliability of the plaintiff's testimony, the defendant drew attention to some marked discrepancies between the plaintiff's account of a shooting incident that had occurred on 19 May 1999 outside the Punchbowl premises of KFC. The defendant also pointed to some later but related events that were said to have occurred at Liverpool Court House in relation to criminal proceedings arising from those events, and the plaintiff's evidence of those events when compared to some objective records produced on subpoena by the Police Service concerning those events. 243. The defendant submitted that on ordinary analysis, at the very least, these matters constituted a basis upon which the plaintiff's recollection, if not his testimony, has been shown to be significantly unreliable, if not false. In this regard, the defendant pointed to a number of salient and apparently irreconcilable matters that appeared in the evidence, and which I have summarised as follows. 244. First, the plaintiff stated in his evidence in chief, that he had witnessed a known person attempting to shoot another man in the KFC car park at Punchbowl on 10 May 1999. In contrast, in cross-examination, the plaintiff stated he was not able to identify the person who had actually fired the weapon and did not know any of the people who were involved. 245. Secondly, the plaintiff stated that he had been required to attend court at Liverpool for 5 days in order to give evidence concerning those events. The subpoena, Exhibit "B", shows his attendance was required on 21 August 2000. In his evidence in these proceedings he stated that whilst at Liverpool Court House, in the presence of a police officer, he had been threatened by someone who was connected to the accused person. He stated that the effect of the threat was that he should not give evidence in the matter. In his evidence in these proceedings he also stated that the 2 main witnesses who were to give evidence against the accused person had disappeared. In casting doubt upon the veracity of the plaintiff's account of those events, the defendant pointed to the transcript of the proceedings at Liverpool Court, Exhibit "32", which showed that the trial to which the plaintiff had referred proceeded over 3 days and not 5 days as recollected by the plaintiff. The defendant also pointed to the fact that the 2 witnesses whom the plaintiff had said had disappeared, had in fact given evidence at the trial contrary to what the plaintiff had stated. 246. Thirdly, the plaintiff recalled the shooting event as having occurred early in the morning. The defendant tendered a COPS report as Exhibit "19" which recorded the incident as having occurred at about 11:00pm at night. In evidence in these proceedings, the plaintiff said he did not tell the police he had witnessed the shooting because no-one was hurt. This was in contrast to the plaintiff having stated that he saw the perpetrator standing in front of a car and shooting at someone. 247. Fourthly, in seeking to cast doubt upon the reliability of the plaintiff's testimony, the defendant also pointed to a history that was recorded as having been taken from the plaintiff and set out in the report of Ms Barbuto dated 27 June 2007, in which it was stated that the plaintiff had witnessed the incident and had seen the man in question fire a gun, approximately 10 times, and that he knew the perpetrator and the perpetrator knew where the plaintiff lived. 248. Fifthly, the defendant pointed to a history recorded as having been taken from the plaintiff and set out in the report of Dr Ellis dated 26 November 2005, in which it was stated that the plaintiff was "hit" purposefully by a local drug syndicate and was forced by the police to give evidence under threat of being arrested, and was thus forced to comply with a demand that he give evidence. Exhibit "32" reveals that the plaintiff did not give evidence. 249. Sixthly, the defendant pointed to some conflicting evidence from the plaintiff and his wife. On the one hand the plaintiff said it was not until years after the incident in question which gave rise to these proceedings that he made a connection between the shooting matter at Punchbowl KFC, his attendance at Liverpool Court, and the incident on 5 September 2000. In contrast, Mrs McLennan agreed that within a week of the 5 September 2000 incident having occurred, she and the plaintiff had discussed the possibility of the involvement of the person in the shooting incident also being involved in the car park incident. 250. In relation to the fourth and fifth points outlined above, I am mindful of the need to observe caution concerning the making of adverse credit findings against a party based on conflicts arising from medical histories contained in medical reports where the subject matter basing the credit challenge has not been explored in sufficient detail with the party concerned and where explanatory evidence has not been called from the person recording the history being relied upon to impugn credit : Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. 251. However, taking an overall view of this component of the credit challenges, quite apart from the accounts of history in the medical reports cited, I consider that the other matters of conflicting versions identified by the defendant are irreconcilable, and therefore this tends to undermine the reliability of the plaintiff's testimony. I have come to the view that these conflicts are as a result of confusion rather than deliberate deception. Otherwise, the deception would not have been so easily identified. I put this confusion down to the passing of time and fading memory for these events. Having regard to the plaintiff's statement given to the police on 5 April 2000 in connection with the shooting incident, Exhibit "12", in which he recounted a number of shooting and gang-related criminal activities occurring outside the KFC Punchbowl store between 1997 and 1999, it is possible that the plaintiff's memory of these events, and his ability to distinguish between them, a decade later, may have become confused. Nevertheless, the plaintiff's memory has been shown to be unreliable in this regard. As to (d) – plaintiff's account of the events before and immediately after the injury 252. The defendant submitted that the plaintiff's claim of having had a significant period of unconsciousness as a result of the incident was not credible when regard was had to the medical evidence on this issue. Alternatively, the defendant submitted that the plaintiff's evidence asserting a recollection of the illumination of the approaching headlights of the vehicle from behind and the sound of the engine revving, should not be accepted. 253. The submission was based upon the expert neurological evidence of Associate Professor Spira who cast doubt upon the plaintiff's claimed recollection of events due to the claimed period of unconsciousness. His evidence was that retrograde amnesia would have precluded such a recollection. 254. On considering the arguments on this issue I decline to make an adverse credit finding against the plaintiff on this point along the lines sought by the defendant. I have taken this view because I consider that the assumptions upon which the argument has been put are incorrect. I have set out my reasons for that view at paragraph [332], of my reasons for the consideration of Issue 2 and paragraphs [376] to [389] in connection with my findings as to the injuries sustained by the plaintiff. As to (e) – versions of the incident attributed to plaintiff in medical records and reports 255. The defendant made credit based criticisms of the plaintiff concerning matters of differing historical accounts of the incident as summarised in various medical reports which revealed some historical inconsistencies. It was argued that these matters had an adverse impact on the plaintiff's credibility. The defendant drew upon such observations to mount an argument to the effect that the plaintiff had offered differing accounts of the critical events, with the result that his reliability as a historian should be called into question and disregarded. 256. In the circumstances of this case, where the plaintiff has claimed he has a disability involving his memory and an impairment of his organisational abilities, I consider that such a submission should not be entertained on the state of the evidence. The approach suggested by the defendant is fraught with obvious problems that were stated and summarised in authorities already cited : Mason v Demasi ; Container Terminals Australia Ltd v Huseyin. For those reasons, and in the absence of specific evidence permitting the conclusion that the summaries were accurately recorded based on specific questioning that can be examined to evaluate the submission, I consider that procedural fairness requires that I should not draw the suggested adverse credit inferences against the plaintiff. The submission relied upon by the defendant was based only on the varying summarised histories that were attributed to the plaintiff by the authors of the medical reports where the authors were not called to give evidence and the matters relied upon could not be fairly explored, clarified or explained. 257. There are circumstances where it is permissible to make adverse credit findings against a party based on the contents of matters of history recorded in medical and other reports, but only in specifically defined circumstances. In my view, having regard to the considerations explained in Mason v Demasi and Container Terminals Australia Ltd v Huseyin, this is not such a case. As to (f) – plaintiff's attempts at due inquiry and search 258. The defendant raised arguments asserting that the plaintiff's evidence of his efforts at due inquiry and search for the unidentified motor vehicle were not credible. Having considered that submission, I have declined to make that finding. I have set out my reasons for that view between paragraphs [354] to [371] of my reasons which deal with my consideration of Issue 5. As to (g) – non-disclosure to Dr Tablante of Woolworths employment / workers' compensation benefits 259. The defendant pointed to the plaintiff's non-disclosure to Dr Tablante, and to other examiners, the fact and extent of his mitigatory employment with Woolworths whilst he was still receiving workers' compensation benefits. I have found that the conduct of the plaintiff, at the time it was perpetrated, namely, between November 2000 and April 2001, to be discreditable. I have set out my reasons for that view between paragraphs [223] to [241] of my reasons. 260. The question arises as to whether a preparedness on the part of the plaintiff between November 2000 and April 2001, to practise a deception for the purpose of financial gain, even if carried out for the reasons given by the plaintiff, as confirmed by Mrs McLennan, and which must reflect poorly and adversely upon his credit at that time, should be held against him when weighing the credibility of the plaintiff's testimony generally, a decade later. The defendant has pointed to Exhibit "20" which comprises a statutory declaration sworn by the plaintiff on 11 February 2005 and submits that to the plaintiff's discredit, this form shows that there, the plaintiff falsely declared that since he had been receiving workers' compensation benefits he had not done any work for wages or salary. Clearly, that declaration was untrue at the time it was sworn because the plaintiff has conceded that he has earned $7,497.79 in mitigatory earnings between November 2000 and April 2001 in the employ of Woolworths. 261. Although the identified past conduct was discreditable, I have decided to proceed cautiously on an issue by issue analysis of the matters in dispute, rather than to apply a blanket credit finding against the plaintiff. I have taken this approach because fairness requires consideration of whether the matters related in evidence by the plaintiff on particular issues, either wholly or in part, are themselves credible, notwithstanding the damaged credibility of the plaintiff generally. As to (h) – dealings of plaintiff and his family with the Department of Housing 262. The defendant has submitted that the dealings of Mrs McLennan with the Department of Housing reflect poorly on the plaintiff's credit. That submission must be viewed in the context that it was Mrs McLennan rather than the plaintiff who had the formal tenancy agreement with the department. In this regard, it was said that Mrs McLennan handled the relevant financial matters and communications with the department. Notwithstanding that fact, there was still an obligation on the plaintiff to provide information to the department through his wife, as to his income, in order to justify the amount of rent assessed to be paid for public housing. 263. The defendant submitted that the plaintiff had no personal explanation for his wife's failure to declare earnings and workers' compensation payments received by him in 2001. The defendant further submitted that the Department of Housing was not informed of the plaintiff's receipt of $30,000 in compensation payments in 2002. The defendant made the overall submission that Exhibit "18" demonstrates that the plaintiff's receipt of workers' compensation payments in the period 2000-2006 were not disclosed to the Department of Housing. 264. In response to these matters, the plaintiff explained that his wife handled all the accounts and such dealings. 265. Having regard to Exhibits "MM" and "NN", I consider the plaintiff's explanation on this account to be glib because these documents show the plaintiff's written communications with the workers' compensation insurer on issues to do with disclosures he knew were required to be made to the Department of Housing concerning his receipt of compensation payments. In my view, these documents show active involvement by the plaintiff in matters of communication and dealings with the Department of Housing on the issue of his income. 266. In my view the non-disclosures to the Department of Housing as pointed to by the defendant reflect poorly on the credit of the plaintiff. As to (i) – probity of plaintiff's income tax returns 267. The defendant submitted that the failure of the plaintiff to disclose workers' compensation payments totalling $16,911.69 in his 2001 income tax return, together with his failure to disclose such payments in the amount of $29,240.56 in his 2002 tax return, reflected poorly on his credit. These matters are demonstrated in Exhibits "L" and "CC". 268. When confronted with this issue the plaintiff sought to blame his tax agent. 269. In my view, the plaintiff's response does not satisfactorily or persuasively deal with the criticism made by the defendant. I accept the defendant's submission that there was a lack of probity in the disclosures made by the plaintiff in the identified income tax returns and this is a matter which reflects poorly on the plaintiff's credit. As to (j) – matters arising from plaintiff's relationship with Centrelink 270. The defendant further submitted that it was discreditable of the plaintiff not to tell the workers' compensation insurer that he was in receipt of a loan from Centrelink. The defendant also queried this arrangement because of the absence of documents. 271. The defendant submitted that the plaintiff's explanation to the effect that he did not know it was not possible to obtain a Newstart allowance from Centrelink whilst at the same time receiving payments of workers compensation was not credible. 272. On the state of the evidence, particularly the absence of documentation, I find the issue of the plaintiff's relationship with Centrelink to be an equivocal matter. As to (k) – plaintiff's involvement with golfing activities 273. The defendant pointed to evidence given by the plaintiff to the effect that he has not played golf or squash since the injury, comparing this to the concession made in cross-examination to the effect that he may have played golf once or twice, or that he may have played golf once a year if he was "lucky". In this regard the defendant submitted that the plaintiff's evidence was shown not to be credible when challenged. 274. The defendant pointed to a photograph included in a document downloaded from the internet on 31 March 2009 from the Spiral Arm Home Page clearly showing the plaintiff, seated on what appears to be a golf course green, amongst a group of 12 people including himself. That photograph was apparently taken in Sydney on 2 January 2005, on the occasion of the Spiral Arm Golf Day. The downloaded document states the results of a golf match in which the plaintiff, who is recognizable from the photograph, achieved a result of equal third in the match, with a score of 82 where the par for the course was 54. This constitutes evidence that the plaintiff played a game of golf on that day. 275. There was no evidence as to the meaning or significance of the plaintiff's score, nor was there any evidence of the degree of physical effort required to achieve that score on this particular course. The time taken to complete the game was not explored in the evidence. 276. When the plaintiff was confronted by the cross-examiner about his golfing activities I consider that the plaintiff sought to downplay his involvement by vagueness. He said he thought he might have "tried once or twice" since his injury. He said he was unsure of the date, and at one point suggested this might have been in 2002. When confronted with the photograph he said he didn't think he played golf on that day but when confronted with his score he denied playing golf regularly, saying he played about "once a year, if I am lucky". In my view that evidence was not reliable. 277. Having considered the submissions on this point in the light of the evidence, it is clear that the plaintiff's initial sweeping statement to the effect that he had not played golf since his injury was incorrect. The significance of that finding is that it does have some adverse bearing on the credit of the plaintiff and it is a matter that needs to be weighed when considering the evidence of the plaintiff's claimed inability to work. As to (l) – plaintiff's evidence concerning fluctuations in his weight 278. The defendant submitted that the plaintiff gave unreliable evidence concerning his pre-injury weight. 279. In this regard the defendant pointed to the plaintiff's evidence that his weight was approximately 100kgs before his injury. By way of comparison, the defendant drew attention to the 1999 Liverpool Hospital clinical notes showing the plaintiff had a recorded weight of 114kgs. The defendant also pointed to the subsequent weight recorded on 8 January 2002 at 115kgs. 280. In my view, the matter of the plaintiff's pre and post injury weight was the subject of some confusion and misleading analysis. I have set out my reasons for that view between paragraphs [416] to [425], of my reasons which deal with the plaintiff's ongoing disabilities. 281. However, it is clear that the plaintiff's pre-injury weight has been recorded to be greater than that which the plaintiff believed or asserted was the case. The issue of concern over the plaintiff's weight was a long-standing one. In an army medical board examination record dated 14 September 1982, which forms part of Exhibit "25", it was recorded that the plaintiff had "obesity due to back problem, unable to exercise fully". When that exhibit is viewed overall, and taken together with the limited post-army and pre-injury recordings of the plaintiff's weight, it is clear that the plaintiff has understated his pre-injury weight. 282. It is clear from the overall evidence of the plaintiff's weight, that it was generally increasing over the years before his injury and fluctuated after his injury. Understandably, given the nature of the records, there was no indication that these weights were recorded in standardised circumstances and therefore capable of being reliably compared. In view of this, notwithstanding the submissions of the defendant, as a matter of fairness, I consider that the question of the plaintiff's pre-injury weight is of neutral significance to the issue of the plaintiff's credit but it has some relevance to his hypertension and his development of Type II diabetes which was diagnosed in 2002. As to (m) – plaintiff's evidence of his level of involvement with housework 283. The defendant submitted that the plaintiff should not be accepted concerning his evidence that before his injury he was active in carrying out household tasks on a 50/50 shared basis with his wife. The submission was that the plaintiff gave exaggerated evidence in this regard for the purpose of bolstering his claim for damages concerning the value of domestic assistance. 284. I have analysed and made findings in respect of the plaintiff's claim for past and future domestic assistance in paragraphs [484] to [521] and paragraphs [522] to [537] of my reasons. 285. Whilst it was clear from the plaintiff's evidence, and that of his wife, as to the accuracy of the descriptions of his level of pre-injury involvement in household activities and a comparison of that level with his post-accident needs for assistance, I do not consider the discrepancy to be necessarily due a lack of credit on his part. I gained the impression that the evidence on this particular topic was generally vague and inaccurate, and therefore unreliable without reference to other evidence, namely expert evidence. I did not gain the impression that such unreliability was due to an intention on the part of the plaintiff to deceive. Rather, I thought the unreliability of this evidence was a function of the effluxion of time and the relative lack of elicited detail in the description of the tasks under consideration. As to (n) - nature and extent of the plaintiff's claimed disabilities 286. The defendant submitted that the plaintiff's evidence concerning his claimed residual disability should be discounted because of credit issues, arguing that the plaintiff has been substantively and substantially discredited on many aspects of his evidence. 287. Whilst there is some considerable force in the submission, for reasons that I have already stated, I consider it is inappropriate to apply a blanket finding of discredit against the plaintiff in order to reject the claims of the plaintiff without weighing his evidence and considering other evidence supportive of his claims. Accordingly, I propose to give consideration to the plaintiff's disabilities on an issue by issue basis. In this regard I have set out my evaluation of the plaintiff's claimed disabilities between paragraphs [396] to [425] of my reasons. As to (o) – attempts at seeking post-injury employment 288. The defendant challenged the plaintiff's claim for loss of earning capacity, including the plaintiff's attempts at obtaining post-injury employment. The plaintiff claimed that since he ceased working at Hungry Jack's, notwithstanding his employment stint with Woolworths between November 2000 and April 2001, he has remained unfit for work. I have analysed this issue between paragraphs [392] to [395], [432] to [460] and [467] to [480] of my reasons with regard to the effects of the plaintiff's injuries on his employment, his attempts at mitigation and in connection with his claims for past and future loss of earning capacity. As to (p) – plaintiff's use of sunglasses in court 289. The defendant made submissions critical of the fact that the plaintiff wore dark sunglasses whilst giving his evidence in the proceedings. The plaintiff wore non-optical or non-prescription sunglasses for the entire time he gave his evidence in court. 290. When the plaintiff was questioned during his evidence in chief about this matter, he stated that whilst he required glasses for reading, he wore non-prescription sunglasses because of the propensity of the light to cause him migraines. When questioned as to what type of light he was referring to, he stated :"Anything bright at all and some fluorescent lights I react badly to those." When cross-examined, he stated that he had worn sunglasses in fluorescent lit classrooms whilst training at Woolworths. 291. The defendant sought to rely upon the observation by Associate Professor Spira that the plaintiff apparently tolerated an overhead bright light when he lay on the examination bunk. In my view this is an insufficient basis for discrediting the plaintiff on this issue without further descriptive evidence as to the intensity or brightness of the light, the duration of the exposure of the plaintiff to such light and some indication of whether that conclusion by Associate Professor Spira was as a result of specific questioning of the plaintiff as there are subjective factors involved in the statement relied upon by the defendant. 292. During cross-examination the plaintiff was shown a segment of DVD sequences from Exhibit "14". These showed him to be outdoors at his home in daylight and not wearing sunglasses. Two snapshots taken from those DVD sequences exposed at 11:11am and 11:14am on 31 January 2009 appears in Exhibit "13". 293. I decline to draw an inference against the plaintiff concerning these events for a number of reasons. 294. First, corroborative of the plaintiff's evidence, the outdoor photograph of the plaintiff at the Spiral Arm Golf Day on 2 January 2005 shows the plaintiff to have been wearing sunglasses whilst outdoors in apparent sunlight. Significantly, in the context of the plaintiff's claim that he suffers intolerance of glare, the photograph shows the plaintiff to be the only person amongst the group of 12 people in the photograph to be wearing sunglasses in the conditions shown in that photograph. 295. Secondly, the observation that whether or not light is perceived as being bright or excessively bright, including for someone who suffers migraine headaches, may be open to subjective interpretation. For example, as was raised with counsel during addresses, it appeared to me that the plaintiff was looking about in sunlight that was dappled with shade from the leaves of trees. It did not appear from the DVD that the light was particularly bright, and the plaintiff did not appear to be looking toward bright light. 296. I hasten to add that these observations could not ever be a conclusive view where evidence was not called to explain what was seen on the DVD in relation to possible variations in camera settings and calibrations for differing lighting conditions. In the absence of evidence of a descriptive similarity between the light conditions that prevailed when the DVD images were recorded, and what was evident on viewing the images, I see no relevant distinction between the in-court interpretation of photographic images and DVD images on matters of fact : Angel v Hawkesbury City Council [2008] NSWCA 130. 297. In my view, caution requires that I draw no adverse inferences against the plaintiff on the account of him being seen outside, in daylight, and not wearing dark glasses. This is so particularly since it was not put to him that he could not do so, or that he never did so, or that he did so on this occasion without headaches as a consequence. 298. I consider the matter of the plaintiff not wearing sunglasses when seen on the DVD sequences to be of neutral significance. It has not been shown that exposure to bright light or to certain fluorescent lights does not cause migraines and the plaintiff's account of his experience and association between such exposure and migraines is not inherently improbable, nor has it been authoritatively contradicted. 299. The defendant's suspicion that the plaintiff wore sunglasses in order to avoid eye contact with the cross-examiner may, from the defendant's perspective, be understandable, and from an overall perspective this may be seen to be unusual for such circumstances, but on the evidence adduced, it can be no more than a suspicion. 300. Accordingly, I draw no adverse credit inferences against the plaintiff because he wore dark glasses in court. As to (q) – DVD evidence showing some of plaintiff's activities 301. The defendant showed and tendered a DVD showing sequences of very brief activity involving the plaintiff emerging from his residence and conversing with his daughters on 31 January 2009. The DVD in question played for a duration of 8 minutes : Exhibit "14". 302. This evidence was in the context of surveillance investigations commissioned by the defendant during which investigators retained on behalf of the defendant expended some 98 hours of invoiced time invested by a total of 3 different investigators between 26 January and 1 February 2009 in seeking to obtain and record observed activity by the plaintiff : Exhibit "15". This exhibit shows that the investigators spent long 14 hour days between about 6:45am and 9:00pm over 6 days and 8 hours on the seventh day, these being consecutive days. 303. Shortly after 11:05am on 31 January 2009, the plaintiff was seen to emerge from his home without wearing sunglasses, apparently carrying a small container of oil, and was seen to engage in conversation with his daughter and his wife, walk, short distances, including with a pronounced limp at one stage, move around a parked motor vehicle, look down and at something around the vehicle, and then shortly afterwards, returned inside the house. 304. The DVD showed the plaintiff standing mainly in the shade, in dappled sunlight and often with his back to the brightness of the sunlight. In my view, no significant activity was shown to have been undertaken by the plaintiff in the DVD. 305. This was the totality of the DVD material. 306. In the context of the evidence taken as a whole I do not consider the relatively short period of time, showing the plaintiff to be outdoors without sunglasses, to be of any real significance to the credit or other substantive issues in the case. As to (r) – plaintiff's computer based leisure activities 307. The defendant pointed to the plaintiff's involvement in computer and internet activity involving complex games described as Spiral Arm and Mercury. The defendant pointed to this as an activity the plaintiff has pursued ever since his injury. 308. The defendant also pointed to the fact that the plaintiff acknowledged that he had some 20-25 computers at the plaintiff's home, some of them being in working order. The defendant also pointed to the plaintiff's involvement in building his own computers and undertaking repairs and selling repaired computers, as well as his eBay activities and time spent on the computer. This was characterised by the defendant as evidence of significant leisure time being used by the plaintiff for such activities, which also indicated a residual earning capacity. 309. In my view, for the reasons I have outlined in my evaluation of the plaintiff's disabilities, between paragraphs [396] to [425] of my reasons, when the plaintiff's injury related disabilities were taken into account, the plaintiff's computer activities did not have adverse credit implications on his case, as was contended by the defendant. As to (s) – plaintiff's residual work capacity 310. The defendant submitted that the plaintiff had a significant residual earning capacity and it was a matter of discredit to him that he was not exercising this argued residual capacity. The defendant submitted that with the combined financial effect of the veteran's disability pension, workers' compensation payments, money from his hobbies dealing with computers, and subsidised public housing, the plaintiff had an agreeable lifestyle and no real motivation to work. The defendant submitted this reflected poorly on the plaintiff's credit. In my view this submission is overstated by the defendant in view of the medical evidence which I have accepted concerning the plaintiff's ongoing inability to work due to his headache related problems. I have set out my evaluation of the issue of any residual earning capacity in the plaintiff, including from computer activities, between paragraphs [450] to [452] of my reasons. Conclusions concerning attack on plaintiff's credit 311. I have concluded that although to a significant degree, the credit of the plaintiff has been successfully impugned by the defendant's attack upon it. That damage relates to the plaintiff's non-disclosure of his work and his compensation history when he applied for a job with Woolworths, the concealment from his treating doctors and the workers' compensation insurer of the fact that he was working when claiming unfitness to work, his dealings with the Department of Housing and the probity of his income tax returns. In addition, there were other matters casting doubt on the reliability of the plaintiff's testimony, which I have noted to require caution in weighing the testimony of the plaintiff. However, the extent of the damage to the plaintiff's credit does not necessarily mean that I should arrive at a blanket rejection of the evidence of the plaintiff such that his evidence on liability should be rejected and his claim dismissed. Instead, I have evaluated the matters calling for decision on an issue-by-issue basis, taking any relevant credit issues into account when weighing the evidence as a whole. Issue 2 – Was the plaintiff struck by an unidentified motor vehicle 312. The Nominal Defendant did not concede that the plaintiff had been struck by an unknown vehicle. 313. First, it was suggested that the plaintiff was not struck by a motor vehicle. Secondly, it was submitted that a more likely explanation for the plaintiff's claimed injuries was an assault inflicted upon him from behind. Thirdly, it was submitted that on an evaluation of the plaintiff's credit, he should not be believed as to the version of events in which he suggested that his injuries were occasioned as the result of the involvement of an unidentified motor vehicle. 314. In view of my credit findings concerning the reliability of the evidence of the plaintiff, I have given careful consideration to the question of whether or not the plaintiff's evidence should be accepted as to his evidence of the circumstances that surrounded the incident and whether or not it should be inferred that he was struck by an unidentified motor vehicle in the manner claimed. 315. As there were no witnesses who have come forward to describe the incident in a way that could corroborate the claim of the plaintiff, although the plaintiff's evidence as to the circumstances in which he claimed to have been injured was plausible, and could on its own be open to be accepted, in the circumstances I consider it necessary to look to the other evidence to see whether there are aspects of the plaintiff's claim that are supported by other relevant evidence. 316. In adopting that course I have concluded that I should accept the plaintiff's version of events as being true and factually correct. I have taken this view for three reasons. 317. First, notwithstanding the challenges made by the defendant to the evidence of Dr Tablante, I consider that Dr Tablante's evidence and his contemporaneous records served to corroborate the plaintiff's version of events. On the day following the incident Dr Tablante saw the plaintiff and provided him with a certificate stating that the plaintiff was unfit for work for the period of one week between 5 September 2000 and 11 September 2000 due to "multiple bruising / concussion post collision" : Exhibit "LL". I consider this to be a relevant contemporaneous record made by a trained observer tending to corroborate the fact that there had been a collision as reported by the plaintiff. It also suggests the plaintiff was significantly injured. 318. Whilst this still leaves open the question of whether the plaintiff had provided Dr Tablante with an accurate statement of the surrounding events, I consider that the professional observations made by Dr Tablante on his clinical examination of the plaintiff on the day after the incident, support the contention that a collision had occurred between the plaintiff and a motor vehicle. Those clinical observations were that the plaintiff had sustained bruising to both of his lower legs behind the knees, a graze to his left knee, bruising and grazes to his right shoulder, bruising to the neck and to the front of his chest and bruising and swelling to the back of the head. 319. Dr Tablante was of the opinion the plaintiff's lower leg injuries behind the knees were consistent with the plaintiff having been struck from behind by a motor vehicle, possibly at the level of the bumper bar. I consider that Dr Tablante convincingly and persuasively rejected the proposition that the plaintiff's injuries, as observed by him, were also consistent with him having been struck during the course of an assault. I accept his explanation, based on his experience in hospitals treating assault victims, that he would have expected an assault to have been to the upper part of the body and not at the level of the lower legs. Also, the fact that there was bruising observed to the back of both legs at the calf level below the knees supports the view that the bruising was caused by the bumper of a vehicle rather than in an assault. 320. In my view the injuries to the plaintiff that were observed and described by Dr Tablante are consistent with the theory advanced on behalf of the plaintiff, namely that the plaintiff was struck on the legs from behind, at about the level of the calves and knees by the bumper bar of a vehicle, following which he fell forward to graze his left knee and right shoulder whilst taking the fall, and then striking his chest and head as he fell, also somehow injuring his neck in the process. I consider this to be a highly plausible scenario that was not on its face glaringly or inherently improbable. 321. Secondly, I consider that Mrs McLennan's evidence served to also partly corroborate aspects of the plaintiff's version of events insofar as her observations of his state on arrival at home were concerned. Notwithstanding the challenges made to the credit of Mrs McLennan, and notwithstanding the at times combative attitude she displayed when cross-examined by Mr Poulos QC, I considered that her evidence was truthful concerning her observations of the state in which she observed the plaintiff on his return home on the morning of the incident. 322. The effect of the evidence of Mrs McLennan was that she observed the plaintiff to have had a torn left trouser leg and had a graze with bruising to the left knee as well as bruising to the upper parts of the back of his legs. She described this bruising to be at the upper level behind both thighs and in the lower buttock regions. She also noted a lump on the back of the plaintiff's head. 323. I consider these observations by Mrs McLennan to be broadly corroborative of the plaintiff's early account of his injuries, which serves to provide a consistency with the observations of Dr Tablante. I do not regard a minor discrepancy in the described observations of Dr Tablante and Mrs McLennan as to the location of the bruising to be of significance. Minor discrepancies are to be expected with the effluxion of so long an interval of time after the events. I do not consider the differing descriptions of the levels of bruising of the back of the plaintiff's legs by Mrs McLennan to compel a rejection of her evidence. 324. Thirdly, There are three relevant documents that provide an early consistency of the account given by the plaintiff of his belief that he was struck by a motor vehicle and I consider that evidence to be credible and supportive of the inference that he was struck by a vehicle. 325. The first document is the "Employee's Report of Injury on the Journey Claim" form dated 17 September 2000 : Exhibit "4". In filling out the detail of that form where it required the plaintiff to describe what had happened, he stated : "I was walking through the car park on the way to the Railway Station. I heard a car coming up behind me and that's the last thing that I remember. (Hit by a car)." 326. The second such document was the detail filled out by the plaintiff in the answers within the "Employee's Compensation Claim" form prepared for the employer : Exhibit "5". In that form the plaintiff stated : "I drove from my house to this railway station car part at Holsworthy train station to catch the train to work. I parked my car and was walking through the car park on the way to the train platform when I heard a car coming up behind me. I paid it no attention as I was walking close to the backs of the other parked cars and that's all I remember. I woke up on the ground in the car park." 327. It is also of significance that the plaintiff promptly reported the fact of his injury to his work supervisor, Mr Singh : Exhibit "23". 328. The third such document was the "Motor Accident Personal Injury Claim Form" dated 5 June 2001 : Exhibit "6". In that form the plaintiff provided a diagrammatic representation of the car park layout, showing his actual and intended path of walking to the train station and the course of the car that he assumed had hit him. His brief description of the incident stated: "I arrived at the station parked my car, locked it and started walking towards the station. I heard a car behind me and moved closer to the backs of the cars as I walked along. I remember hearing the car was close and that's the last thing I remember. I woke up between two parked cars and I was grogy (sic) and it took me some time to realize where I was. No body paid any attention to me and I realised where my car was I went to it and sat in it for a long time and got back home around 10 am." 329. It was these factors, taken both individually and in combination, which have persuaded me that the plaintiff's version of the events leading up to the incident, such version not being, absurd, glaringly improbable or otherwise incredible, should be accepted. 330. I do not accept the defendant's submission that the plaintiff has created evidence by reconstruction of events. In my view he has been careful to confine and limit the extent of his evidence to matters within his direct knowledge and perceptions. In my view that is a matter that should be weighed in his favour when considering the acceptability of his evidence. 331. I do not accept the defendant's submission that the plaintiff's evidence should be discounted because of the varying histories he has given of the events when he was medically examined on numerous occasions, including the bizarre version recorded by Dr Ellis in which it is recorded that he claimed to have been deliberately assaulted. The course suggested by the defendant is fraught with difficulty and problematic for the reasons discussed in Mason v Demasi [2009] NSWCA 227 PER Basten JA at [2]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. 332. I do not accept the argument of the defendant that the uncontradicted evidence of Associate Professor Spira indicates that it was unlikely that the plaintiff could have recalled the events he described. I consider that the evidence of Associate Professor Spira has been invoked on an erroneous basis by the defendant in making that argument. My reasons for that view are set out between paragraphs [375] to [389] with regard to my findings on the nature of the injuries sustained by the plaintiff in the incident. In essence, Associate Professor Spira's views are based on an assumption that there was a prolonged period of unconsciousness which mediated his view that the plaintiff's account was not credible as this would have been accompanied by a significant period of retrograde amnesia, which he discounted. I have preferred Dr Tablante's more contemporaneous view that there was probably only a very brief period of unconsciousness. 333. In my view, the argument by which the defendant seeks a rejection of the evidence of the plaintiff is on the state of the evidence, an unfair one based on varying records of medical history, and caution dictates that it is not a proper basis for discrediting the plaintiff : Mason at [2]; Container Terminals Australia Ltd at [8]. 334. In the light of the foregoing analysis, notwithstanding the reservations I have already recorded concerning the reliability and credibility of the testimony of the plaintiff, I accept the plaintiff's evidence as to his recollection of events and infer from his evidence, and from the other evidence I have analysed, that the plaintiff was struck by an unidentified motor vehicle, as has been claimed on his behalf. 335. I therefore find that about some shortly after 5:00am on Tuesday 5 September 2000, whilst the plaintiff was walking in conditions of poor lighting within the car park towards Holsworthy railway station, and whilst he was still in the railway station car park, he was struck on the legs from behind and knocked to the ground by an unidentified motor vehicle. 336. I find that this incident occurred shortly after the plaintiff had parked his car in the car park at the station and whilst he was walking closely behind a row of parked cars. I find that at that time, he heard the revving sounds of a vehicle engine approaching from behind. I find that at that time he also saw an increasing degree of illumination around and ahead of him emanating from behind due to the approach of that motor vehicle as he continued to walk to the station. 337. I find that at this time he was walking about 6 inches from the rear of a nearby row of parked cars. At this time he did not turn around to look behind him in response to these sounds and signs, but instead, continued to walk toward the railway station in the reasonable expectation that the driver of the vehicle approaching from behind would keep and maintain a proper lookout and would be able to see his walking figure whilst illuminated by the vehicle's headlights. 338. In my view, at that time, the plaintiff was sufficiently close to the rear of the parked cars to entitle him to expect the driver of the vehicle approaching from behind would be keeping a proper lookout and would steer an appropriate course that would avoid a collision between that vehicle and the plaintiff. Issue 3 – Was the driver of the alleged unidentified vehicle negligent 339. Consequent upon my finding that the plaintiff was injured when he was struck by an unidentified motor vehicle, I also find that the plaintiff was injured as a result of the negligence of the driver of that vehicle. I have reached this conclusion for the reasons that follow. 340. First, the plaintiff was walking lawfully within the railway station car park. The area was one where drivers of motor vehicles would ordinarily expect to encounter pedestrians walking either to or from motor vehicles parked in the car park. Accordingly, the driver of a vehicle being driven within the car park would have been expected to be keeping a proper lookout for the presence of pedestrians moving near, about or around vehicles within the car park, including pedestrians who were walking towards the railway station. 341. Secondly, having accepted that the vehicle in question was being driven in the car park before daylight hours with its headlights illuminated, whilst it was at the same time approaching the plaintiff from behind, I consider that if the driver of the approaching vehicle had been keeping a proper lookout to the roadway ahead, he ought to have seen the plaintiff's moving figure within the illuminated field of the headlights whilst the plaintiff was walking ahead of the vehicle. 342. In those circumstances, I consider that reasonable and appropriate measures should have been taken by the driver to avoid a collision between the pedestrian and the vehicle. Such measures ought to have included, in combination, applying the brakes to either slow down or stop, steering a course away from a likely collision, and sounding a warning to the plaintiff that the vehicle was approaching from behind if the plaintiff was not looking at the approaching vehicle as these measures would have been appropriate and reasonable responses to a risk of collision with the plaintiff pedestrian. 343. There is no evidence that the driver of the vehicle did any of those things that I consider that a prudent driver would have done in the circumstances that then prevailed. The plaintiff was unable to give any evidence of any attempt on the part of the driver to sound the horn and there was no evidence of the sound of the vehicle braking before the plaintiff was struck. 344. Thirdly, I infer from the plaintiff's evidence concerning his perception of the sound of the revving of the engine and his perception of the degree of acceleration of an approaching vehicle, that the vehicle behind him was in fact being driven at an excessive speed of acceleration for the environs of a car park. This is so especially where pedestrians such as the plaintiff were reasonable expected to be walking near, around or between vehicles. Whilst the driver of the vehicle may have had some good reason for fast acceleration in order to exit the car park, such as in the case of an emergency for example, there is no evidence that this was so. Even if that were so, that did not absolve the driver of the duty to take reasonable care to avoid colliding with pedestrians. 345. Fourthly, I consider that the juxtaposed sequence of events, namely the plaintiff walking within the car park, hearing the revving and acceleration of a vehicle, and seeing the illumination ahead projected by headlights from behind, whilst he was walking near the rear of a line of parked cars, and then next being aware of laying on the ground between two such parked cars, is too much of a co-incidence not to draw an inference of a presumption of continuance, namely that the vehicle described by the plaintiff continued on its course to the point where it collided with the plaintiff. I consider that the inference that arises, namely, that the vehicle described by the plaintiff in fact continued on and struck him, is reasonably drawn in this case : Donoghue v St Luke's Hospital Ltd [1969] 2 NSWR 647 per Walsh JA. 346. Fifthly, I consider that if the driver of the vehicle had been keeping a proper lookout, he or she would have not only have seen the plaintiff, but would also have recognised that the vehicle had struck the plaintiff. In those circumstances the obligation on a driver was to stop, render assistance or at least determine whether assistance was required, and to provide particular of identification. This was the standard of prudence required of a driver in such circumstances. 347. I infer from the fact that the driver in question did not remain at the scene in order to assist the plaintiff or to provide particulars and to call for assistance, either from the ambulance or police services, or both, is evidence from which I can infer that the driver left the scene either as a result of inattention resulting in the non-observance of the collision, or that the driver deliberately left the scene to escape the inevitable burdens of detection and the subsequent dealings with authority that these circumstances would have inevitably required. In either event, in my view, the conduct of the driver in striking the plaintiff with the vehicle and then leaving the scene reasonably enables an inference of negligence to be comfortably drawn from the circumstances of the events as I have found them to have occurred in this instance. 348. In my view, had the driver of the vehicle steered a prudent course away from the plaintiff, which would have been a reasonable thing to do given the close proximity of the plaintiff to the rear of parked cars, a collision would most probable have been avoided. In that sense, I consider the plaintiff has discharged the onus of establishing that his injuries were caused by the negligence of the driver of the unidentified vehicle : Flounders v Millar [2007] NSWCA 238. 349. Accordingly, in these circumstances, I find that the driver of the unidentified vehicle was negligent and it was that negligence which caused the plaintiff's injuries. Issue 4 – Alleged contributory negligence 350. Contrary to the submission made by the defendant, I find that in the events leading up to the plaintiff's injury there was no contributory negligence on his part. The evidence provided by the sketch in Exhibit "6" discloses that the plaintiff was walking according to a reasonable and safe route on his way to the station. Whilst that sketch of the car park is obviously not drawn to scale, I accept it to be sufficiently accurate for the purpose of assessing the issue of contributory negligence in that it represents that the distance between the two rows of parked cars left ample room for pedestrian traffic to walk to the station whilst still leaving sufficient room for ordinary vehicles to drive through the car park without colliding with pedestrians, if those pedestrians happened to be walking in close proximity to the rear of a line of parked cars. 351. I accept the plaintiff's evidence that he was walking very close or about 6 inches to the right of the line of parked cars on his left in the car park. There is no evidence that would suggest that the plaintiff knew that if he continued on his chosen path without diverting, that he would be likely to be struck by a vehicle passing him from behind. Given the close proximity to the parked cars at that time, to the point where the plaintiff's recollection ceases, there was nothing in these events which in my view required the plaintiff to turn or to take evasive action. At that time he was reasonably entitled to expect that the vehicle in question would drive past and around him without striking him. 352. The defendant bears the onus of establishing that there was contributory negligence on the part of the plaintiff. The defendant called no evidence on the issue and secured no relevant concessions. In my view there is no evidence that there was any departure on the part of the plaintiff concerning his obligation to take care for his own safety. 353. In view of these findings I reject the defendant's argument that there was contributory negligence on the part of the plaintiff. Issue 5 – Due inquiry and search for the identified motor vehicle 354. In order to succeed in his claim against the Nominal Defendant the Plaintiff carries the burden of showing that the identity of the vehicle, and by implication, its owner and driver, cannot be established after due inquiry and search : s 34(1) Motor Accidents Compensation Act, 1999. 355. In my view the evidence discloses that at the scene of the collision, the plaintiff was left with no information or clues which might have had a tendency to identify the vehicle, its owner or its driver. The plaintiff had no idea of the details of the vehicle, its make, model, colour, its registration details either in whole or in part. All he was aware of was the revving sound of the vehicle engine and the fact that it had projected illumination from one or more of its headlights. No one came forward to assist the plaintiff at the scene before he left the scene to travel to his home. 356. In these circumstances it is difficult to imagine a trail more cold for inquiry than the one that emerged from these circumstances on the day of the collision, and on the days and weeks thereafter. 357. In the circumstances, I consider that the plaintiff did the only reasonable thing open to him after taking stock of his injuries and having his injuries seen to the next day, and that was to ring the police station at Liverpool to advise of the incident and to leave his name. It is not unexpected from the limited facts known to him and that he was able to relate at the time, that nothing flowed from that report to the police. I consider that on the meagre amount of information the plaintiff was able to relate, it would have been most unlikely that the police would have been able to find any details of the vehicle, its owner or driver sufficient for identification purposes. 358. On the day of the collision, the plaintiff promptly reported the matter to his employer and became entitled to workers' compensation benefits as a result. The employer wrote to him on 11 September 2000 to advise the workers' compensation insurer had been notified of the plaintiff's injury and a claim form duly sent to the plaintiff for completion. He signed the workers' compensation journey injury claim form on 17 September 2000 : Exhibit "4". A further form was filled in for the insurer on 27 September 2000: Exhibit "5'.The workers' compensation insurer became liable to pay the plaintiff his statutory entitlements and at the same time it had an interest in ascertaining the details of the vehicle and driver involved in the incident as it would have been able to seek monetary re-imbursement in relation to its liability to make payments to the plaintiff. 359. There is no evidence that the insurer was able to do any better than the plaintiff in seeking to achieve the identity of the vehicle, its owner or driver. In these circumstances it is difficult to envisage what else the plaintiff could reasonable have done in the days following the incident. 360. The plaintiff stated that he put up flyers at the Holsworthy railway station about a week after the incident seeking information that might be of assistance. He stated that he received no useful information in response: Exhibit "7". The defendant criticised the plaintiff for not putting up an advertising flyer earlier than he said he did. Given that the plaintiff received what Dr Tablante diagnosed as a concussive bump to the head in the collision with accompanying severe headache, I consider that the criticism of the plaintiff for not placing flyers about the scene shortly after the incident is not reasonably maintained in the circumstances of this case. 361. The defendant submitted that because there was evidence that within a week or two of the incident having occurred, in a discussion with his wife, the plaintiff had given some thought to the possibility that he could have been deliberately assaulted in the car park by someone connected to the criminal proceedings where he was to be a witness. The defendant submitted that this was a relevant matter that could have reasonably followed up as part of a course of due search an inquiry. The defendant submitted that this was a matter that the police would have had an interest in following up in order to determine whether the plaintiff had been assaulted by either the accused person who had been discharged, or by a cohort of that person who was prepared to seek some sort of revenge on the plaintiff by assaulting him. 362. In my view that submission is flawed because it is entirely speculative. Without evidence, it assumes that the police would have followed the matter up in the manner suggested when all they would have been able to ascertain from the plaintiff would have been a suspicion, unsupported by fact. If the matter had been investigated, the police would no doubt have interviewed Dr Tablante in order to obtain some evidence of the nature of the plaintiff's injury. On such an inquiry it is very likely that they would have been made privy to Dr Tablante's opinion that the plaintiff had been struck from behind by a motor vehicle. This would not have advanced the inquiry towards identifying the vehicle that had been used to strike the plaintiff. 363. The defendant submitted that in these events the police may have interviewed the discharged accused person and his family members or his connections and could have possibly identified a vehicle with damage consistent with the vehicle having struck the plaintiff. In my view that submission involves entirely speculative considerations. Even if it is assumed that the police would have pursued such inquires to that degree with so few facts to go on, given that the accused faced his trial to the point of discharge of the jury with an acquittal by direction, it seems to me very unlikely that the police would have been so fortunate as to have been able to secure an admission against interest from that person or an associate concerning a serious assault of the kind suggested. 364. On 20 August 2003, without success, the solicitor for the plaintiff published an advertisement in the local paper, the Liverpool Champion seeking the assistance of witnesses. 365. In my view the totality of this material leads me to the conclusion that at any of the times when the plaintiff realised he ought to have pursued inquiries to try and ascertain he identity of the vehicle, its owner or driver, the trail for pursuing such inquiries was well and truly cold so that any inquiry made was pre-destined to have a futile outcome because of the circumstances of the incident. In my view such circumstances were beyond the control of the plaintiff, or anyone who was acting reasonably on his behalf. 366. Such circumstances are not unique. The requirement of due inquiry and search was authoritatively considered in connection with a prior version of the legislation dealing with due inquiry and search, namely s 30(2)(c) of the Motor Vehicles (Third Party Insurance) Act 1942 : Harrison v Nominal Defendant (1975) ALR 680. In that case, Barwick CJ stated at [332]: "The question is not simply whether due inquiries and search had been made. The terms of the subsection ought to be borne in mind. ... The stipulation that the identity of the vehicle is incapable of being established is made for the protection of the Nominal Defendant. It imposes no obligation, as such, upon the plaintiff; though the plaintiff to succeed must establish that the identity is incapable of being established as in the terms of the section. The word "after" in the subsection does not, in my opinion, require that some inquiry and search must necessarily in fact always precede some other event or the drawing of a conclusion. If, in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due search and inquiry the stipulation, in my opinion, may be held to be established, although no search or inquiry destined to be futile has been made. The section does not, in my opinion, require that in every case, irrespective of its circumstances, some inquiry and search should have been made. Whether or not the identity of the vehicle might have been established after search and inquiry appropriate to the circumstances of the case had been made is a question of fact. That, in my opinion, is the relevant issue in a case brought under s 30 (2) (a) of the Act. It is not whether some search and inquiry has been made. The presence of the word "due" in the subsection emphasizes that the question is whether the identity of the vehicle cannot be established though such search and inquiry as might appropriately be made in the circumstances of the case had taken place." 367. The requirement of due inquiry and search does not mean that there must be some inquiry undertaken where such a search would be futile. 368. This decision has been considered and applied on numerous occasions including Nominal Defendant v Swift [2007] NSWCA 56 which dealt with a similar provision for due inquiry and search in s 28(1) of the Motor Accidents Act 1988. In my view the approach taken to due inquiry and search in those cases applies to a consideration of whether there has been due inquiry and search within the meaning of s 34(1) of the Motor Accidents Compensation Act 1999, which is a requirement the plaintiff must fulfil in this case. 369. Although the defendant acknowledges the force of the authority of Harrison v Nominal Defendant, it submitted that the plaintiff "was required to do more" than he in fact did: Nominal Defendant v Smith (1998) 28 MVR 165 at page 174. In this regard it was submitted at the very least, the plaintiff ought to have informed the police of his suspicions. I reject that submission because even if he had done so, I consider that the likely end result of such a course would, for the reasons I have outlined, have been entirely speculative. As Sheller AJA stated in Nominal Defendant v Smith at page 174: "…Harrison's case and other later cases remind us that we have to be realistic about the requirement…" 370. I am mindful of the fact that the requirement of establishing due inquiry and search is there to protect the interests of the Nominal Defendant: Oztan v Nominal Defendant (1995) 23 MVR 259 per Kirby P at 265. In allowing full force to such statutory protection, in this case I am unable to see any relevant or timely avenue of potential inquiry that the plaintiff could have reasonably made, either early on in his concussed state or afterwards, which could be reasonably said to have been likely to have borne fruit if such a line of inquiry had been pursued. 371. I am satisfied that in the circumstances of this case, realistically, due inquiry and search would not have established the identity of the vehicle that was involved in the incident. F. FINDINGS - DAMAGES ISSUES 372. I now turn to a consideration of the damages issues raised in the proceedings in order to record my findings on the plaintiff's injuries, his treatment, rehabilitation, the remaining disabilities, as well as the plaintiff's probable remaining life span before proceeding to assess damages. Findings as to injuries 373. On the balance of probabilities, I find that in sequence, the plaintiff suffered injuries when the unidentified vehicle struck him from behind and he then sustained further injuries when he fell and onto the pavement surface of the car park. 374. I find that the initial injury occurred to the plaintiff when the unidentified vehicle struck him from behind, probably at an angle as suggested by Dr Tablante, at which time he suffered bruising injuries to the back of both legs around the calf area behind the knees. I accept Dr Tablante's evidence in this regard. 375. I find that after the vehicle had struck the plaintiff from behind, the plaintiff most probably fell forward onto his left knee, causing a graze to that knee, following which he most probably fell onto his right shoulder, which also sustained a graze. In the course of these events, the plaintiff most probably received multiple soft tissue bruising from the fall, as would be expected in the case of a man weighing around 100kgs or more, falling onto a hard pavement surface. In the course of these events, I accept that the plaintiff probably suffered bruising to his neck, his hips and his left ankle, which resulted in the ankle becoming swollen. 376. I find that in the course of these events, the plaintiff also sustained a blow to the back of his head which caused a lump with the development of consequent swelling to the back of the head in the occipital region. I accept the contemporaneous diagnosis of Dr Tablante as to that injury, when he saw the plaintiff on the following day. 377. There was a controversy arising from the evidence as to whether the plaintiff in fact suffered a loss of consciousness after he had been struck by the vehicle. 378. A commonsense understanding permits a conclusion that it is possible that a blow to the head can result in a loss of consciousness. From a lay perspective the evidence of the plaintiff's incomplete recollection of the events after hearing the approach of the vehicle from behind and then next recalling laying on the ground is certainly suggestive of a loss of consciousness. This is especially so in circumstances where there is a diagnosis of a concussion. 379. Without other evidence, the plaintiff's own evidence of his interrupted recollection of events certainly permits an inference to be drawn that he lost consciousness, but such inferences should not be drawn in substitution for medical opinion on the issue on questions of medical diagnosis where there is controversy on the issue : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. 380. In the circumstances where there is uncertainty over the reliability of the plaintiff's evidence as to his recollection at trial, of earlier events that have long passed, I consider that it is not appropriate to conclude from the plaintiff's evidence alone that he in fact suffered a loss of consciousness in the incident. That said, I consider that Dr Tablante's clinical early diagnosis that the plaintiff suffered a concussion following an injury to his head is informative on the issue. The defendant has submitted that this diagnosis was based on a history provided by the plaintiff and should therefore be discounted due to the potential for Dr Tablante to have been deceived by an incorrect history obtained from the plaintiff. 381. I do not accept that submission because I consider that the submission ignores the diagnostic component of Dr Tablante's examination of the plaintiff in which he established a diagnosis that the plaintiff had suffered a concussive head injury. The concession the defendant obtained during the cross-examination of Dr Tablante to the effect that it was possible that the plaintiff had "pulled the wool" over his eyes in providing an incorrect history related to the specific issue of the legitimacy of the claim for unfitness for work. It was that history, together with the fact that the plaintiff withheld from Dr Tablante the fact that he had been working at Woolworths at the time, which resulted in the issue by Dr Tablante of certificates of unfitness for the purposes of obtaining Workcover certificates and workers' compensation benefits, this does not negate the clinical diagnosis of Dr Tablante that the plaintiff had a head injury. 382. In the circumstances referred to by the defendant I do not regard the cross-examination of the plaintiff, and that of Dr Tablante, to have reasonably created a proper basis for submitting that Dr Tablante's diagnosis of concussion should be ignored because it was based upon an incorrect history provided by the plaintiff. Dr Tablante was not taken through the elements of his reasoning which resulted in the diagnosis of concussion in order to provide a basis for discounting his diagnosis. In those circumstances I consider it to be unreasonable to assume, as the submission by the defendant's submission assumes, that the diagnosis of concussion was based only upon a history provided by the plaintiff without Dr Tablante having also conducted a physical examination in which he used professional skill and judgment to reach a diagnostic conclusion. 383. There is evidence that Dr Tablante had in fact conducted a physical examination. I therefore infer from this evidence that he based his diagnosis of concussion not only upon what the plaintiff had told him, but also upon his findings on examination of the plaintiff. Dr Tablante's brief notes in Exhibit "AA" clearly indicate that he conducted a clinical examination of the plaintiff. I therefore do not accept the defendant's submission that Dr Tablante's opinion to the effect that the plaintiff suffered a concussion be given little, if any weight. 384. Having accepted that the plaintiff has suffered a concussive head injury, the question arises as to whether he truly suffered a loss of consciousness that has caused a degree of amnesia, or whether he merely suffered some kind of physical shock or adrenaline effect, as was explained by Associate Professor Spira, which could explain the plaintiff's post injury impaired state of alertness or altered consciousness and his recollection of events. 385. Associate Professor Spira conceded that the sequence of events in which the plaintiff became aware of his surroundings whilst laying on the ground, being slightly confused as to where he was, is consistent with him having been unconscious for a period of time. He explained that unconsciousness for about half an hour would give rise to some expectation of the presence of retrograde amnesia, the period of such amnesia being dependent upon the severity of the head trauma. He stated that minutes of unconsciousness could see minutes of retrograde amnesia. 386. In this regard, I observe that it is not possible on the evidence to measure the precise duration of the gap in the plaintiff's memory or any period of retrograde amnesia. It would appear from the fact that there was a gap in the plaintiff's memory that there could be a degree of retrograde amnesia. The alternative explanation was the operation of the adrenalin effect described by Associate Professor Spira in his evidence, or a combination of both of these factors. 387. On the basis of the evidence of Associate Professor Spira, I find that in the events of the incident, the combination of the shock from the plaintiff's physical injuries and the associated concussion from the blow to the head, the plaintiff suffered an altered state of consciousness or alertness. Until the advent of the explanation by Associate Professor Spira, the mechanism for this was considered only from the perspective of unconsciousness, but it appears there is a dual explanation for the memory gap. This memory gap has been misinterpreted by the plaintiff, and perhaps others, to mean that he had suffered a loss of consciousness. It is not possible to conclusively determine the duration of the period of the memory gap or altered consciousness. However, I consider that Dr Tablante, being the first doctor to see the plaintiff after his injury, was in a particularly advantageous position to go over the history when it was fresh in order to make the clinical judgment that if the plaintiff had suffered a period of unconsciousness, then it was likely to have been very brief, namely a matter of minutes. 388. Based on the evidence of Dr Tablante, I find that the plaintiff probably suffered a very brief loss of consciousness, which in combination with the adrenalin effect, explains why the plaintiff has a gap in his memory. I find that these events were likely to have led the plaintiff to have described a loss of consciousness, which description became magnified as to its duration when reviewed over time by the various medical examiners who questioned the plaintiff about this. 389. I find, on acceptance of the evidence of the plaintiff, corroborated by objective evidence of the fact that he had injured his head and had a concussion, that he also suffered a significantly disabling headache as a result of the incident. I find that as a consequence, as was explained by Dr Fitzsimmons and Associate Professor Spira, this head trauma has activated a latent predisposition to migraines. This accentuated condition has not resolved after 9 years, which indicates that the condition is at the severe or extreme end of the spectrum, as suggested by the evidence of Associate Professor Spira. Findings as to treatment and rehabilitation 390. The plaintiff's initial treatment consisted of dressings being applied to his superficial skin grazes followed by rest. He has continued to see his general practitioner Dr Tablante who, apart from arranging radiological imaging tests to the plaintiff's head, neck and back, has from time to time referred him to specialist neurologists for assessment, management and treatment of his ongoing problems with headaches. The only treatment that has been given to the plaintiff for the treatment of his headaches has been to trial various types of anti-migraine medications and to adjust them due to their side effects. These adjustments and medication changes appear to have occurred in cycles as the therapeutic effect of the drugs in ameliorating the headaches changes. 391. The plaintiff has been on workers' compensation benefits since the collision. The medical evidence does not suggest that the plaintiff would benefit from any further rehabilitative measures as his headaches are chronic and very disabling. Mitigation 392. The plaintiff had a duty to take reasonable steps to mitigate his situation both with regard to seeking treatment for his disabilities and with regard to his loss of earning capacity in connection with his claim for damages : s 136 of the MAC Act. 393. In the initial months that followed his injury the plaintiff sought mitigatory employment with Woolworths and underwent training for that work. His recollection as to the duration of this training position varied between 1 month and 3 months but he said he left that position because with the effects of his headaches he could not finish the training. I accept his evidence in this regard. 394. In my view the plaintiff has satisfied the requirements of the section by fulfilling his duty to mitigate. He has sought out and pursed treatment that has been recommended to him by his general practitioner and by the various specialists whom he has consulted. He has also complied with the requests of the workers' compensation insurer to attend medical examinations to assess his condition. I infer from the fact of ongoing payments of compensation to him and from the fact that the insurer, at all times, had an interest in rehabilitating the plaintiff in order to reduce the burden of having to continue to make payments to him or on his behalf, that if there was a further rehabilitation option the insurer would have pursued this. In my view the evidence does not identify any practical rehabilitation plan that would be likely to further rehabilitate the plaintiff. 395. On reviewing the evidence concerning these matters, I find that the plaintiff has taken reasonable steps to mitigate his loss and there should be no reduction in his damages on account of any alleged failure to mitigate. Findings as to disabilities 396. Any findings as to the nature, extent and effect of the plaintiff's remaining disabilities necessarily require a consideration of the findings I have made as to the credibility of his testimony. 397. The defendant has demonstrated that the plaintiff's memory for dates and events has been shown to be unreliable in particular respects. The defendant has also demonstrated that the plaintiff has been shown to have acted in a discreditable manner in that he refrained from telling Dr Tablante that he was working at Woolworths at a time he was claiming to be unfit for work, and was consulting Dr Tablante seeking certificates of unfitness for work, to ensure the continuation of his entitlement to further workers' compensation payments. 398. These findings raise for consideration the question of whether, in the circumstances, the plaintiff's evidence of his complaints of disability should be rejected or discounted on account of such findings. 399. In considering this question, I have weighed all of the matters raised by the defendant against the plaintiff's claims. Having taken all of my credit findings into account I have concluded that despite the adverse credit findings I have made, and despite the findings as to the unreliability of aspects of the evidence of the plaintiff, I should nevertheless accept the plaintiff's evidence as to his ongoing disabilities. I have come to this conclusion for the reasons that follow. 400. First, I consider that the issue of the reliability of the plaintiff's memory of the detail and juxtaposition of past events has to be fairly considered in the light of the fact that he has had a concussive head injury and has subsequently complained of memory problems and difficulty with organising himself. In my view any adverse consideration concerning the reliability of the plaintiff's memory has to tempered with an acknowledgment of, and allowance for this factor, particularly as Associate Professor Spira as acknowledged that whilst these problems are probably not due to cognitive defects, they could be due to the plaintiff being distracted by chronic headache. More importantly since the fact of the plaintiff's head injury has been corroborated by Dr Tablante, the consequence of this finding is that it provides a proper basis for confirming the relationship between the plaintiff's head injury and his headaches, as stated by Dr Fitzsimmons and Associate Professor Spira. 401. Secondly, when assessing the reliability of the plaintiff's memory for detail and juxtaposition of historical events, I consider that due allowance has to be made for the fact that the questioning of the plaintiff on the detail of these matters for the purpose of impugning his testimony has taken place more than 8 years after the events in question. I consider that allowance must be made for the ordinary fallibility of memory for detail over such a period, either with or without the super-imposition of a head injury, as the chronic headaches also had the potential to interfere with the plaintiff's memory. 402. Thirdly, on the issue of the credibility of the plaintiff's testimony, the substantive matter of the circumstances of the plaintiff obtaining certificates of unfitness for work, whilst embarrassingly telling against the plaintiff's probity, those events occurred within a relatively short time frame between November 2000 and April 2001, which was when the plaintiff worked for Woolworths. His explanation for misleading Dr Tablante, namely his need for money to support his family, was not excusable, however without condoning the turpitude, it was to a degree understandable. The only favourable, though not greatly favourable things that can be said about this episode are that this discreditable conduct continued for a relatively short period (when the plaintiff was desperate for funds, and the duplicity ceased when the plaintiff found he was unable to cope with the work) and the plaintiff eventually acknowledged the conduct when confronted with it. 403. In reviewing these so-called favourable considerations, due acknowledgment has to be given to the defendant's point that if this conduct of the plaintiff is indicative of the lengths of deception to which the plaintiff was prepared to go in order to achieve a financial advantage, the entirety of his evidence needs to be viewed with the utmost caution. The defendant's consequential submission was that there was no way of objectively determining the veracity of the plaintiff's complaints, and in view of this, caution requires that his uncorroborated evidence on critical matters should be rejected. I consider that submission to be overly simplistic in view of the point that follows. 404. Fourthly, I have carefully assessed the plaintiff's background and present circumstances and have concluded that because of his impressive work history, including working with a chronic back condition, the plaintiff was unlikely to have been motivated to perpetrate and perpetuate such an elaborate and sustained deception over so many years, and in the process, successfully duping so many experienced clinicians into an acceptance of his complaints. In my view, this would have required a significant amount of planning, special knowledge and strategic thought in order to come up with a set of symptoms that he could adopt in order to be in a position to successfully dupe the experienced medical practitioners to whom he has been referred and who have treated him. My impression of the plaintiff was that he was unlikely to have gone to these lengths to pursue a false claim when to do so would be fraught with difficulty. 405. Fifthly, evidence of this latter point is the question of the plaintiff's weight gain whilst under the treatment of Professor Lance. Putting aside for the moment the whole history of the plaintiff's period weight gain over time, a matter to which I will return shortly, the fact is that the plaintiff not only complained of severe migraine headaches to Professor Lance but in fact took the medications that were prescribed for these headaches, as is evidenced by his recorded weight gain of 12kgs from 121kgs to 133kgs in just under 6 weeks whilst taking the medication. In my view, the taking of such medication, for headaches that either did not exist, or were not as severe as was claimed, with the resultant deleterious gain in weight, is not the conduct of an artful dupester, which was the characterisation the defendant sought to impute to the plaintiff. In my view this factor, taken together with the confirmation of the concussive head injury and the opinions of Dr Fitzsimmons and Associate Professor Spira provide independent support for the plaintiff's claims concerning the nature of his headaches being an activation or an accentuation of an underlying tendency to migraines. 406. Sixthly, recognising the difficulty of objectively determining the existence of a subjective complaint of a headache, as acknowledged by Associate Professor Spira, I consider it to be of some significance that on the occasion of the medico-legal ophthalmic examination of the plaintiff by Dr Delaney on 29 June 2006, a genuine constriction defect in the visual field possibly associated with the transient effect of a recovering headache was noted. This was not a matter that was traversed or contradicted by other evidence, and in fact formed part of the evidence that the defendant relied upon to make its case on damages. 407. Seventhly, the plaintiff's complaints of headaches have been accepted by experienced clinicians as being of a migrainous character. I doubt the plaintiff would have been able to "pull the wool" over the eyes of such experienced clinicians. It is noteworthy that Associate Professor Spira stated that the plaintiff's migraine headaches were at the extreme end of the spectrum in his long experience. That evidence is very different from a statement to the effect that he doubts the headaches exist. I also take into account the possibility identified by Dr Lorentz, namely, that there was evidence of two types of headaches, both of a migrainous nature and headaches due to exertion. 408. Having determined in the foregoing analysis that there are limits to the extent to which the plaintiff's evidence should be discounted for considerations of reliability and credit, I now set out my findings concerning the plaintiff's disabilities. 409. The first matter to be noted is a range of the soft tissue injuries resolved after a time and are no longer adversely affect the plaintiff, notably the knee and ankle injury. 410. In the paragraphs that follow I set out my findings on the disabilities that continue to adversely affect the plaintiff. 411. I accept, as was noted by Associate Professor Spira, that there has been a material aggravation in the plaintiff's prior experience of migraine headaches from 1 – 2 per annum to 2 – 3 per week. 412. I accept that the plaintiff experiences ongoing, severe, long lasting and debilitating migraine type headaches. I find that these headaches are of a far greater character of intensity and frequency when compared to the relatively infrequent pattern of migraines that the plaintiff experienced in his pre-injury years. I find that in addition to the plaintiff requiring intermittent medical consultation for these problems, including on an unpredictable basis, he frequently finds the need to secrete himself in a quiet and darkened room to assist him to cope with these headaches when they are acute. In this regard I accept Associate Professor Spira's opinion that photophobia is a typical symptom of migraine headaches. 413. I find that the plaintiff's headaches are at times associated with nausea, vomiting, photophobia and photosensitivity or glare intolerance, and are aggravated or brought on by movement with the result that the plaintiff has assumed a far more sedentary existence than was previously the case. This reduced level of activity and capacity for exercise has led to the plaintiff experiencing a reduced ability to control his weight which has influenced the course of his hypertension and Type II diabetes. There is no evidence that the plaintiff had Type II diabetes before his injuries. 414. I accept that following the injuries sustained to the plaintiff's head and neck he experiences a burning sensation at the base of he neck and on the left side of the head. 415. I accept that the plaintiff still experiences problems with his right shoulder consisting of pain, discomfort and restriction of movement, due to the presence of a traumatic capsulitis, as was diagnosed by Dr Ellis in his report dated 5 February 2007. 416. A significant effect of the ongoing disabilities on the plaintiff has been that he has become less active, and as a result this has had an impact on his ability to exercise and move about. This in turn has impacted upon his pre-existing back condition so as to accentuate this problem. In this sense the effects of the injuries in question have materially contributed to the plaintiff's pre-existing back condition and influenced his reduced level of activity thus contributing to his further weight gain. I accept the evidence of Dr Tablante that the inactivity and weight gain has been a factor that contributed to the plaintiff's increased hypertension and contributed to the early onset of his diabetes. I consider that as the treating general practitioner, Dr Tablante is in a better position than Dr Cromer and Professor O'Rourke to form this conclusion as he has seen the plaintiff over time. 417. I accept that the effect of the plaintiff's headaches has been to reduce his ability to concentrate and participate in his pre-injury leisure pursuits to the same degree, now requiring only short periods of activity, including computer activity. 418. I accept the opinion of Dr Ellis, Dr Conrad and Dr Lorentz that the plaintiff is unlikely to be employable in the future. I prefer these opinions to the contrary opinions because I also accept the opinion of the treating neurologist, Professor Lance, that the prognosis for the plaintiff's headaches was poor. In my view the opinion of the treating doctors has a high value because of the particular clinical advantage held by the treating doctor. In this case, the opinions of Dr Ellis, Dr Conrad and Dr Lorentz have a consistency with the view of Professor Lance and I therefore prefer their opinions. 419. I also accept Dr Tablante's diagnosis of depression in the plaintiff. Whilst Dr Tablante's diagnosis is not supported by Dr Maguire, I prefer the opinion of Dr Tablante because he has had the advantage of seeing the plaintiff over the course of time rather than on just one medico-legal assessment and as such, is in a better position to assess his patient. 420. It is necessary to revisit the question of the plaintiff claims that he has gained a significant amount of weight since this injury. This was a matter in contention by which the defendant sought to discredit the plaintiff. 421. Table I summarises the recorded references in the medical reports tendered on the issue of fluctuations in the weight of the plaintiff over the years both before and after his injury, namely between 1977 and 2007. TABLE I – Weight fluctuations No. Date Recorded Weight Source of recorded weights 1. 08.02.1977 92.2kgs Defence records 2. 24.10.1979 80kgs Defence records 3. 18.08.1981 92.2kgs Defence records 4. 04.02.1982 94kgs Defence records 5. 14.09.1982 94kgs Defence records 6. 07.09.1999 114-116kgs Liverpool Hospital notes 7. 08.01.2001 115kgs Dr Parameswaran 8. 12.03.2001 121kgs Professor Lance 9. 21.06.2001 133kgs Professor Lance 10. 12.09.2001 123kgs Professor Lance 11. 19.02.2002 114kgs Dr Vignaendra 12. Post-19.02.2002 114kgs History to Professor Lance Pre-05.03.2002 13. 05.03.2002 120kgs Professor Lance 14. 06.08.2002 110kgs Dr Vignaendra 15. 25.01.2005 120kgs Dr Lorentz 16. 16.05.2007 115kgs Associate Professor Spira 17. 27.09.2007 115.9kgs Dr Cromer 18. 16.10.2007 115kgs Professor O'Rourke 422. The true significance of this summary is that whilst it appears from the report of Professor O'Rourke that he had made an assumption to the effect that the plaintiff's weight whilst in the army had increased from 69kgs to 94kgs, there is no evidence with the Department of Defence health records that were tendered, that supports that conclusion. It appears Professor O'Rourke has either made an erroneous assumption or he has assumed something not proven in evidence, as there is no reference in those records that the plaintiff ever weighed 69kgs whilst in the army. 423. The only references in the Department of Defence records as to the plaintiff being overweight was a reference to him being 10kgs overweight at 94kgs which means that his ideal weight was about 84kgs. If the plaintiff truly weighed 69kgs whilst in the army this would have been about 16kgs under the ideal weight, which I consider would have been remarkable and would probably have been the subject of comment of a different character. 424. This summary table necessarily has its limitations without there being evidence of whether the plaintiff was dressed, shod, or not on each occasion, and because of the random nature of the weight samplings, the tabulation has no statistical significance. It cannot be said to be a complete record because of its random nature. It also pays no regard to the plaintiff's evidence that his weight fluctuates between 105kgs and 120kgs, depending on the medication he takes. The weights recorded in the table do not compel a finding that it was improbable that the plaintiff's evidence of his weight was a little over 100kgs before his injury, as he has claimed. 425. I therefore conclude that the defendant's effort to discredit the plaintiff on account of his evidence as to his weight involved error, and therefore was unfair. Findings as to plaintiff's probable lifespan 426. It is necessary to identify the plaintiff's probable remaining life span for the purpose of assessing the claim for future domestic assistance and future out-of-pocket expenses. 427. At trial the plaintiff was aged almost 55 years. On the prospective life tables, a 55 year-old male has an average statistical survival estimate at 30.28 years. 428. In this case the medical evidence discloses that the plaintiff suffers from hypertension, diabetes and is significantly overweight. The medical evidence describes these matters as being additional risk factors for cardiovascular disease and for early mortality. 429. The evidence of Professor O'Rourke and Dr Cromer variously estimates that the plaintiff is likely to encounter earlier than normal mortality on account of these factors. Professor O'Rourke has put forward an estimated reduction of 10 years. Dr Cromer believes the plaintiff's life expectancy is reduced by about 10 per cent. I accept as reasonable the basis of their opinions. In the circumstances I propose to take a broad average figure rounded down to 6 years to represent the appropriate discount on account of probable earlier than average mortality. 430. That approach reveals a probable life span of 24 remaining years for the purpose of projecting the cost of future domestic assistance and future out-of–pocket expenses. On the 5 per cent tables the multiplier for 24 years is 737.8 G. ASSESSMENT OF DAMAGES 431. I now turn to an assessment of the individual heads of damage claimed by the plaintiff. Past loss of earnings 432. The plaintiff makes a claim for past loss of earnings in the amount of $325,136 net. In contrast, the defendant submits that the plaintiff's claim for past loss of earnings should be assessed in the amount of approximately $2500 net. The disparity between these two positions is largely dependant upon the manner in which the credibility of the testimony of the plaintiff is assessed. 433. In approaching the assessment of the claim for past loss of earnings I find the plaintiff's pre-injury work history to be a significant and useful baseline from which to assess the claim for past loss of earnings. The plaintiff's pre-injury work history over many years has been impressive. Since leaving school, until the time of the injury, apart from a period of months of absence from the workforce during which he cared for his father who was ill, the plaintiff appears to have maintained almost steady employment. 434. Following his injury, the plaintiff became entitled to receive weekly payments of workers' compensation. His evidence was that there were periods during which weekly entitlements to payments of workers' compensation were not received regularly. I am inclined to accept the plaintiff's evidence in this regard. It accords with what is occasionally known at times to occur for a variety of reasons in some cases of work-related injuries. It also serves to provide a measure of explanation as to why the plaintiff was compelled to seek work with Woolworths whilst prima facie entitled to workers' compensation benefits by way of weekly payments. Without explanatory evidence, I do not regard the content of the workers' compensation insurer's payments schedule, which shows that from an historical accounting point of view, the plaintiff received his regular entitlements without interruption, as necessarily contradicting the evidence given by the plaintiff on this issue, as was submitted by the defendant. 435. The plaintiff's written submissions have identified a tabulation of extrapolated and projected potential earnings which sets out probable net earnings the plaintiff would have derived between the financial years ended 30 June 2001 and 30 June 2009. That tabulation is in the net amount of $332,634. The plaintiff claims that this amount represents a reasonable basis upon which to quantify his claim for past loss of net earnings from the time of his injury until the hearing of his claim. 436. In identifying this sum, the plaintiff has conceded that an offset should be applied in the amount of $7497.79 net in order to account for the earnings that he derived whilst in the employ of Woolworths, as those earnings must be brought to account in mitigation of his loss. The plaintiff claims that the difference between these two amounts, subject to the need to make any adjustments. 437. The foregoing mathematical approach submitted by the plaintiff seems to me to provide a reasonable basis upon which to identify the probable earnings the plaintiff would have derived had he not been injured and had he remained in the fast food industry between September 2000 and the time of the trial in 2009. I shall return to this suggested quantification method after reviewing the economic loss submissions made by the defendant. 438. The defendant submitted that the probable earnings as identified by the plaintiff are an irrelevant reference point in these proceedings because, when the plaintiff obtained work with Woolworths in late 2000, and whilst he continued with that work for a time, on his own assessment, and as a matter of fact, he must be taken to have been fit for work on and from that time. The defendant submits that otherwise, the plaintiff would not have applied for the Woolworths job at that time. The defendant submits that the plaintiff has remained fit for work from that time onwards with the result there is no basis for claiming a loss of earnings in that period. The defendant points to the opinion of Dr O'Neil in support of that view. As a consequence the defendant relies on a much shorter period of comparable earnings over which to calculate the claim for past loss of earnings. 439. After applying an offset for the mitigatory earnings from Woolworths, the defendant submitted the plaintiff's past net calculated loss of earnings to be approximately $2500. 440. I am not persuaded by the defendant's submissions for a number of reasons. 441. First, despite the reservations I have identified as to the credit of the plaintiff and the reliability of his evidence, I am persuaded that the plaintiff has truthfully described his motive in applying for the Woolworths position. In this regard, I accept that the plaintiff was in a difficult financial position because of an interruption to his income flow whilst he found himself on workers' compensation benefits that were not being regularly received as actual payments. I accept his evidence that there was delay in the flow of payment of those benefits, notwithstanding that the historical accounting schedule of workers' compensation payments does not reveal any interruptions. In this regard, I do not consider the plaintiff's explanation to be glaringly improbable or unbelievable. After giving due consideration to the adverse credit findings in connection with the plaintiff's Woolworths employment, I nevertheless accept that the plaintiff applied for this work as he was desperate for income to support his family. Wrong though that conduct was, the plaintiff's entitlement to civil damages should not be discounted on a punitive basis for such conduct. 442. Secondly, having regard to the fact that the plaintiff's position at Woolworths as being a training position, I do not regard the plaintiff's application for the job and his perseverance at the job for what appears to be about 12 weeks, to necessarily indicate that he was fit to continue in that position irrespective of his experience of ongoing problems with headaches and the related debilitating consequences of those headaches. The plaintiff's obligation to mitigate his loss did not include the requirement that work should continue in pain and at all costs. 443. Thirdly, I consider it unwarrantedly artificial to assume, that because the plaintiff persevered with the Woolworths position for several months in late 2000 and early 2001, that it necessarily follows he was fit for similar work thereafter, without interruption, thus cancelling out any claim for past loss of earnings. I consider the defendant's submissions in this regard to be over-simplistic, and put forward without due regard to the plaintiff's experience of debilitating headaches and without due regard to the medical evidence supportive of the plaintiff's claims. 444. Fourthly, I consider that the opinion of Dr O'Neill that is drawn upon by the defendant, does not reasonably support the submission made. In this regard, Dr O'Neill did not see the plaintiff until January 2003, which was well past the period when the plaintiff's employment with Woolworths had ceased. It is significant that at the conclusion of his report dated 20 January 2003, Dr O'Neill stated the plaintiff was at that time currently unfit to return to reliable employment. Although Dr O'Neill remained unconvinced that the plaintiff had any permanent impairment from the incident, the fact remains that whilst he was "loath" to attribute the plaintiff's episodic headaches to migrainous headaches, he appears to have accepted that there "is a tension-type quality to some of the headaches." That evidence does not support the defendant's contention. 445. Fifthly, I consider that the defendant's submission ignores the force of medical opinions of the plaintiff's treating doctors. In this regard I find the diagnostic opinions of the plaintiff's treating doctors, namely Dr Tablante, Professor Lance and Dr Granot, to be more persuasive than the medico-legal opinions relied upon by the defendant on the issue of the plaintiff's unfitness for work. 446. In this regard, it is important to consider that whereas the treating doctors saw and assessed the plaintiff from time to time in the clinical setting for assessment of the need for treatment and further management, this was in contra-distinction to the retrospective analysis undertaken by Dr O'Neill which was relied upon by the defendant. Although Dr Tablante fairly acknowledged that it was possible that the plaintiff had deceived him when providing his account of his problems for the purpose of obtaining certificates of unfitness for work, in my view that concession was not explored to the point where it could reasonably be used as a basis for ignoring the clinical acumen and findings of Dr Tablante and the other treating doctors. 447. I reject the proposition that the treating doctors were without their own clinical acumen in this regard. In this regard it is of importance to note that when Dr Delaney examined the plaintiff he found objective evidence of a transient constriction visual field defect in conjunction with an ophthalmic examination arranged at the request of the defendant, which happened to coincide with a period when the plaintiff was recovering from a migraine. 448. I therefore reject the defendant's primary submissions concerning the plaintiff's claim for past loss of earning capacity. 449. The defendant made alternative submissions on the manner in which the plaintiff's claim for past loss of earnings should be assessed in the event that the defendant's primary submissions were not accepted. 450. In this regard, it was alternatively submitted that the plaintiff had a significant residual earning capacity which has not been explored to any meaningful extent. In support of that proposition the defendant pointed to the plaintiff's activities in repairing or rebuilding computers from spare parts. The defendant submitted that as the plaintiff was fit for a range of activities, including for example, telemarketing, which he has not taken up, therefore, there should be no loss. 451. I reject that submission because in my view that submission fails to pay any due regard to the unpredictable pattern of occurrence and long lasting and debilitating effects of the plaintiff's migraine headaches, and the impact of these problems on his concentration. In my view, these matters, when given proper consideration, would make the plaintiff an unreliable employee, and therefore an unlikely candidate for employment in the asserted categories of residual earning capacity. 452. The defendant made a further alternative submission concerning the method of quantification for past loss of earnings which was set out in a tabulation of probable gross incomes for the years 2001-2009 which identified a total net amount of net probable earnings for the period in the sum of $212,240.40. The defendant submitted that this tabulation was a more appropriate alternative method by which to assess the plaintiff's claim for past loss of earning capacity when compared to the formulation put forward in the tabulation prepared on behalf o the plaintiff. 453. I do not accept that submission because an examination of the defendant's tabulation at once reveals that the calculations put forward by the defendant in order to arrive at the argued alternative method of assessment of past loss of earnings in the amount of $212,240 net is flawed. This is because it inappropriately incorporates a provision for an annual $10,000 deduction from gross income. In my view that approach is wrong in principle as it is entirely a matter for the plaintiff as to whether or not he has, or would continue to incur expenses which he could legitimately deduct from his liability for income tax. It is impermissible for the defendant to seek the benefit of such discretionary expenditure by a salary earner when seeking to assess past net loss of earnings. Furthermore, I consider that there was no proper basis within the evidence from which to assume that such discretionary expenditure would necessarily continue over so many years, irrespective of whether the defendant was entitled to invoke the benefit of such deductions for the purposes of assessment of damages for past loss of earning capacity. 454. Accordingly I do not accept either of the defendant's submissions, as to the manner in which the plaintiff's claim for past loss of earnings should be assessed. This then requires a consideration of the appropriate method by which the claim for past loss of earning capacity should be assessed. 455. I have concluded that broadly, subject to a required adjustment, the approach that has been submitted by the plaintiff is the preferred approach most likely to provide the most appropriate insight into the plaintiff's earning capacity in the financial years 2001-2009, but for his injury. 456. However, I consider that an adjustment is required to the figures as submitted by the plaintiff to reflect the possibility that the plaintiff's suggested 2001-2009 net earnings tabulation contains a measure of overstatement of the loss on account of a number of imponderable factors such as possible lack of continuity of employment due to job changes, or prevailing economic conditions, and the possibility of the plaintiff exacerbating his back condition in the course of employment so as to debilitate him from exercising an earning capacity, either in part or whole. I take this view for a number of reasons. 457. First, I consider that at age 45, when the plaintiff was injured, there must have been some uncertainty as to whether the plaintiff would have been appointed to the managerial position he asserted would have been the case. I find myself unable to accept in entirety the plaintiff's evidence on this issue because of my earlier findings concerning the reliability of his testimony. I therefore consider that the comparable net tabulation put forward on behalf of the plaintiff and totalling $332,634, requires some adjustment to reflect the prospect that the plaintiff not only may not have achieved that level of earnings, but he may not have sustained or maintained an earning capacity without restriction over the years between 2001-2009. 458. I consider that the need for such an adjustment would have necessarily arisen on account of restrictions imposed upon the plaintiff due to his pre-existing back injury which was vulnerable to flare up with significant or repeated physical activity, and which was likely to cause him disability with regard to employment activities. It is of significance that the plaintiff's back condition was getting progressively worse over the years resulting in difficulty with prolonged standing, lifting and repeated bending. The proposition is also demonstrated by the plaintiff's own awareness of the potential for his back problems to interfere with his earning capacity. Were the position to be otherwise, I consider that he would not have deliberately withheld from Woolworths the details of his compensation history in respect of his pre-existing back condition. 459. Difficult though the exercise is, I consider that when weighing this issue, an appropriate means by which to make proper allowances and adjustments for these matters is to apply a reduction of 20 per cent to the suggested comparable earnings. In my view this adequately reflects the potential for such factors to diminish the plaintiff's level of earnings over that period of 10 years, assuming the injury had not occurred. I include in that adjustment an allowance to reflect the uncertainties associated with the notion that the progressions and increments contended for by the plaintiff may not have occurred, or may not have occurred to the extent that was submitted as being likely. 460. On this approach, the adjusted projection of past probable net earnings amount of $325,136 is reduced by 20 per cent to $266,107. After offsetting the net earnings of $7497.79 from the employment with Woolworths, the net loss is revealed to be $258,609.21, which I round down to $258,000 net. The defendant submitted that a discount of the first 5 days of the economic loss calculation should be deducted on account of s 125 (sic for s 124) of the MAC Act. I reject that submission as s 124 was repealed on 1 October 2008 by the operation of the Motor Accidents Compensation (Claims and Dispute Resolution) Act 2007 No 95, Sch 1 cl 79. I therefore assess the plaintiff's claim for damages for past loss of earnings in the net sum of $258,000. Fox v Wood 461. The plaintiff makes a claim for Fox v Wood damages in the amount of $61,276.54. This represents the amount of tax he has paid on his weekly payments of workers' compensation over the years between 30 June 2001 and 30 June 2009. This sum have been identified in a schedule that was incorporated into the submissions made on behalf of the plaintiff, interpreting Exhibits "L", "CC" and "30". 462. Consistent with my findings concerning the assessment of the plaintiff's entitlement to damages for past loss of earning capacity, I reject the defendant's primary submission that Fox v Wood damages do not arise. On the defendant's alternative submission concerning this head of damage, it is claimed that the plaintiff's submissions have overstated this aspect of the claim, and the defendant has identified a lesser sum of $56,849.18. 463. As I have allowed the plaintiff damages for past loss of earnings, consistent with that award, and consistent with receipt by the plaintiff of workers' compensation payments. I consider that the plaintiff must also recover the actual amount of tax he has paid on his weekly compensation benefits. 464. With regard to the two competing submissions as to the proper amount that should be assessed for this head of damage, I prefer the calculations prepared on behalf of the plaintiff because they harness the data representing the actual deductions made for tax, as appears in the exhibits, rather the more theoretical interpretative reconstruction put forward by the defendant which is stated to incorporate average tax rates. I accept the plaintiff's submission that the tax paid on workers' compensation payments amounts to $61,276.54. I therefore assess the plaintiff's claim for Fox v Wood damages in the sum of $61,276. Future loss of earning capacity 465. The plaintiff makes a claim for future loss of earning capacity in the amount of $312,660. This sum derives from the projection of $840 per week net at 5 per cent over a remaining 12 years of working life to age 67 years (x 473.9) less 15 per cent for vicissitudes. 466. The basis of the plaintiff's claim is that the plaintiff claims he is unable pursue gainful employment on a consistent or predictable basis with the result that he should be regarded as having no residual capacity for employment. On that basis, the plaintiff claims the projection the weekly sum of $840 net over the remainder of the working life he would have enjoyed had he remained uninjured. 467. In contrast, the defendant submitted that the plaintiff has not demonstrated an entitlement to damages for future loss of earning capacity. The basis of the defendant's submission is that it is claimed the plaintiff is fit for employment and has no assessable loss. In the alternative, the defendant submitted that the plaintiff has a significant residual earning capacity that he has chosen not to exploit. 468. I do not accept the submission made on behalf of the defendant. I have found that the plaintiff suffers from significant ongoing disabilities. Those findings are summarised at paragraphs [396] to [425] of my reasons. 469. I accept that the plaintiff continues to suffer from headaches that significantly and adversely interfere with his memory, his feeling of wellbeing, his ability to concentrate and his ability to use his organisational skills. I also accept that the plaintiff experiences problems when exposed to bright light and some types of fluorescent lighting. I accept that these matters adversely impact on the plaintiff's ability to obtain and sustain remunerative employment, even what might be considered to be light work or clerical work. I also accept that the plaintiff has problems carrying out computer activities for sustained periods because of headaches and the problems he described as being associated with headaches. In addition, his back problems impose lifting, bending and carrying restrictions on any work tasks. 470. In those circumstances I consider that the plaintiff has no realistically exercisable residual earning capacity. In my view his claim should be assessed on the basis of a complete loss of his earning capacity. In the light of the disabilities I have found to affect the plaintiff, I do not consider that any income he occasionally derives from his hobbies is of a character or extent that could be fairly or predictably taken to be indicative of a residual earning capacity. He could have had the benefit of those activities had he remained uninjured. I do not accept the proposition that he could harness his hobby activity to create an expanded residual earning capacity by reason of the plaintiff's ongoing disabilities and the matters referred to in the preceding paragraph. 471. Accordingly, in my view the plaintiff is entitled to damages for future loss of earning capacity. However, I do not consider that his claim should be assessed over a period of a further 12 years to age 67 years as he has claimed. I consider that the plaintiff's prior back condition and the potential debilitating effects of that condition would most probably have significantly interfered with the plaintiff's future working life even if he had not been injured in the subject incident. 472. For the purposes of assessing the plaintiff's entitlement to damages for future loss of earning capacity I am required to assess the plaintiff's most likely future circumstances but for the injury : s 126(1) of the MAC Act. I am also required to identify the assumptions upon which I base any award of damages to the plaintiff on account of future loss of earning capacity : s 126(3) of the MAC Act. 473. In view of the plaintiff's work history, and in view of his training and experience in the fast food industry, I consider that it was more likely than not that he would have continued in that industry, and would have obtained work at the managerial level for which he had been trained and in which he had previously successfully worked. I consider that this would most probably have been the case whether he had continued in the employ of Hungry Jacks or in some similar employment. In this regard, I accept the plaintiff's submission that at the time of the trial, the plaintiff's probable earnings would have been $840 per week net, which I note to be significantly less than net average weekly earnings for full time adult male earnings. 474. I consider it to be of some significance that in his 30 January 2004 report, Dr Davies was of the opinion that the plaintiff's lower back problems, which were not due to the incident in question, required the imposition of significant work restrictions. Those restrictions indicated an unfitness for heavy lifting or repeated bending and twisting movements at the waist, as such movements were likely to aggravate the pre-existing condition Dr Davies placed a lifting restriction of 10kg on the plaintiff. 475. I consider the opinion of Dr Davies reasonably permits the inference that as the plaintiff grew older, he would have encountered a substantial impairment to his earning capacity by reason of his back problems which were increasing over the years. I consider the plaintiff's pre-existing back condition would have rendered it unlikely that the plaintiff would have worked until the normal retirement age. I consider the back condition as assessed by Dr Davies, whose opinion in this regard I accept, would have caused the plaintiff substantial problems with regard to seeking out, gaining and sustaining a wide variety of employment on the open labour market. 476. On the evidence it is difficult to determine precisely when these problems would have affected the plaintiff to the degree that would have adversely impacted on his ability to continue in employment. The plaintiff's back problems are significant and permanent. He not only had radiological evidence of back pathology but he also experienced symptoms which required the imposition of workplace restrictions on movement and activity. These back problems were becoming increasingly more problematic for the plaintiff since his days in the army (Exhibit "26" p 6) and in the employ of Waugh & Josephson, and in the observation of Dr Tablante. In my view these factors militate towards a much earlier retirement from the workforce than would otherwise have been the case. Imperfect though the process is, it is necessary to estimate or predict the timing of this event for the purpose of assessing damages. 477. On the basis of the opinion of Dr Davies I find that it was most likely that the pre-existing condition of the plaintiff's back would have prevented him from working in any event such that he would most probably have had to cease work by the age 60 years. 478. On the basis of the opinion of Dr Cromer, I find that it was most likely that the plaintiff would have developed hypertension and Type II diabetes because of a predisposition he had for developing such problems. However, it is noteworthy that Dr Cromer's opinion does not suggest that on account of the diabetes alone, the plaintiff would have been unable to continue to work as a fast food store manager. However, in association with the presence of hypertension, as stated by Professor O'Rourke, whose opinion I accept, the prognosis for the plaintiff was "grim". I consider that the plaintiff's hypertension and diabetes were also factors that would most probably have influenced the plaintiff to cease work by age 60 years in conjunction with his back injury. 479. The presence of hypertension was evident before the plaintiff's injury but it has been materially contributed to by the plaintiff's increased inactivity due to his headaches. The predisposition to diabetes has also been accelerated by inactivity and weight gain. The presence of both of these factors requires that I adjust any award for future loss of earning capacity to reflect the possibility that even on the assumptions that I have stated, the plaintiff would have in any event encountered substantial impairment in his earning capacity because of the "grim" prognosis that he would have faced in any event due to the combination of hypertension and Type II diabetes. I consider these circumstances call for an adjustment by way of discount of 25 per cent on account of future potential adverse vicissitudes. 480. In these circumstances, difficult thought it is to make an estimation, I consider that the evidence justifies the conclusion that it would have been unlikely for the plaintiff to have worked beyond age 60 years even if he had not been injured. I therefore consider that the plaintiff's claim for future loss of earning capacity should be restricted to a further 5 years to age 60 years. 481. The projection of future loss of earning capacity of $840 per week net at 5 per cent over 5 years (x 231.5) less 25 per cent for vicissitudes yields $145,845. I therefore assess the plaintiff's claim for future loss of earning capacity in the sum of $145,845. Past loss of superannuation benefits 482. The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $258,000 is $28,380. I therefore assess the value of the plaintiff's past employer funded superannuation losses to be in the sum $28,380. Future loss of superannuation benefits 483. Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $145,845 yields an amount of $16,042. This sum has already been discounted for vicissitudes. I therefore assess the value of the plaintiff's future employer funded superannuation losses to be in the sum of $16,042. Past domestic care 484. The plaintiff makes a claim for the value of past domestic assistance in respect of the personal domestic care and assistance he claims to have required and which he claims to have received from members of his family, from the time of his injury on 5 September 2000 until the time of the trial, a period of 456 weeks. The amount claimed is formulated as being 15 hours per week at an average rate of $20 per hour over 456 weeks from the time of injury until the commencement of the trial. This formulation reveals the calculation of a claim for $136,800. 485. The defendant submitted that the plaintiff should not be awarded any damages for past domestic assistance. That submission was advanced on a number of bases. 486. First, the defendant submitted that the occupational therapy report of Ms Barbuto, dated 27 June 2007, should be accepted. Her opinion was that the plaintiff did not need any assistance beyond her estimate of 1.25 hours per week. The defendant submitted that on an acceptance of that view, the plaintiff has not met the requirements of the 6 hours per week statutory threshold for the award of such damages : s 128(3)(a) of the MAC Act. 487. Secondly, the defendant submitted that during the periods when the plaintiff was suffering from the acute effects of his migraine, or when he was refraining from carrying out much movement in order to avoid bringing on the acute effects of his migraines, there was no reason to believe that the plaintiff needed any specific care whilst laying down in a darkened room. 488. Thirdly, the defendant submitted that the court could not be satisfied as to the true position with regard to any care requirements of the plaintiff because of the manner in which the case proceeded, and which, it was argued, precluded the proper testing of the evidence of the plaintiff and his wife on historical matters concerning the domestic arrangements of the plaintiff and his wife, and the impact of such matters on the plaintiff's claim for domestic assistance. 489. It is therefore necessary to examine these submissions and the basis of the plaintiff's claim by reference to the evidence. The relevant inquiry is whether the evidence credibly sustains a submission that the plaintiff has in the past received an average of 15 hours per week of domestic assistance from the time of his injury until the present time. 490. The starting point for the analysis is the evidence of the plaintiff and his wife. The plaintiff said he estimated that he required care on an average of between 10 and 15 hours per week. His wife estimated that the plaintiff needed up to 20 hours per week of assistance on average, and up to 35 hours per week in a bad week. The defendant challenged the credibility of that claim by pointing to the parts of her evidence, which, when totalled as was submitted, revealed a claim by Mrs McLennan that she spent up to 55 hours per week providing assistance to the plaintiff in addition to working 30 hours per week. The defendant described this evidence as fanciful and not truly reflective of any injury related need in the plaintiff. I accept that submission. 491. The evidence of the plaintiff's wife was that at times when the plaintiff was affected by disabling headaches and when he went to lay down, she would make sure the blinds in the room were shut to make the room as dark as possible. She said she would make sure "the kids were at the back of the house or tell them to go out". She said she was on call to be telephoned at work if the plaintiff needed her to come home. She said she gave the plaintiff drinks to make sure he was hydrated. She said she gave him his medication and she put on the air-conditioning to make sure the room was a constant temperature for him. My interpretation of the evidence did not reveal the plaintiff to be totally helpless or disabled from carrying out these tasks himself although I accept that at times of acute migraine his ability and concentration would be impaired to a degree. 492. In the absence of an attempt in the evidence to try and quantify these tasks by reference to the times actually involved in those activities, other than by reference to amorphous and vague estimates given by the plaintiff and his wife, it is difficult to reach a conclusion as to precisely what was the extent of the plaintiff's injury related need for care, measured in terms of the time that was actually required to be spent on the nominated activities. This is a matter upon which the plaintiff bears the evidentiary onus of proof. That onus requires the statutory threshold of 6 hours per week of care be satisfied by specific evidence, or inferences reasonably drawn from the evidence. 493. In this regard there was no attempt in the evidence to try and identify the times involved in the claimed activities. Instead, the approach taken was to seek inferences from the occupational therapy evidence. In this case, where the reliability of the plaintiff's evidence was in serious challenge, I consider that approach to represent an unsatisfactory form of proof, based as it was on the information provided by the plaintiff which was itself under challenge. 494. The defendant complains that the manner in which the trial was conducted by the plaintiff has precluded a proper examination and testing of the evidence on the issue of the plaintiff's reasonable needs for domestic assistance. Clearly, this arose as a result of a forensic decision made by the plaintiff's legal representatives. 495. A bundle of previously served medical reports relied upon by the plaintiff was tendered at the outset of the trial as Exhibit "A". That bundle did not include the 17 April 2007 occupational therapy report of Ms Laverack from All Parental Care ["APC"] which was only tendered after the cross-examination of the plaintiff had concluded. That report, which was stated to have been served on the defendant during the course of the previous year, on 2 April 2008, was later tendered as Exhibit "DD". Contrary to that submission, in fact the APC report must have been served earlier, because the 16 May 2007 report of Associate Professor Spira makes reference to the content of the APC report. I will not speculate on whether or not the timing of the tender of the APC report was because a decision had been made by the plaintiff's legal representatives to first evaluate how the plaintiff's evidence proceeded before deciding to rely upon this report. 496. The significance of the report was that it contained a pre-injury history of the plaintiff's wife having the domestic responsibility for all the inside home duties and the grocery shopping which was at odds with the evidence of the plaintiff and his wife to the effect that the plaintiff did the indoor tasks and she did the outdoor tasks before he was injured. This type of credit evaluation has its difficulties and requires caution in drawing adverse inferences and findings where the author of the report was not called and where the detail of the questions that were asked and the detail of the answers given could not be fairly explored : Mason v Demasi [2009] NSWCA 227 and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320. That said, Ms Laverack was not required by the defendant for cross-examination. 497. I do not accept the defendant's submission that the order in which the plaintiff chose to call and tender evidence has precluded a proper testing of this evidence. The defendant obviously had the APC report in its possession for well over a year before the trial. As a result, I do not accept that the circumstances caused any relevant forensic difficulty to the defendant. In my view, nothing prevented a full cross-examination on issues arsing from the APC report irrespective of the timing of the tender of the report. 498. Returning to the matter of quantifying the plaintiff's claim concerning his need for care, I accept the defendant's submission as to the fanciful nature of Mrs McLennan's account of the hours required to be spent tending to the plaintiff's injury related care needs. Having full regard to the tasks required by the plaintiff during periods of acute symptoms, and also allowing for a level of inactivity in the plaintiff in order to avoid movement induced headaches, vomiting and related symptoms, I do not see any descriptive justification for the number of hours of care provided to the plaintiff as was described by Mrs McLennan. 499. Furthermore, having regard to the relatively straightforward nature of the tasks described, I consider the omission of evidence identifying the detail of the cumulative components of time involved in the tasks in question to be a matter that undermines the acceptability of the evidence of the plaintiff on this issue. This is so particularly in view of my credit findings relating to the reliability of the evidence of the plaintiff. 500. Having determined that because of the unreliability of the plaintiff's evidence on matters of detail, and having determined that the evidence of Mrs McLennan does not provide a reliable guide to the evaluation of the actual hours spent tending to be plaintiff's injury related needs, it becomes necessary to look to the expert evidence to determine whether that evidence provides a useful guide. 501. The relevant portions of the expert evidence are found in the opinions of Associate Professor Spira, Dr Ellis, Ms Laverack and Ms Barbuto. Within the parameters of this evidence there is scope for a wide range of opinion. 502. In his medico-legal report dated 26 October 2005, Dr Ellis stated that the provision of domestic assistance to the plaintiff to the extent of 6 hours per week for a period of 12 months from the date of injury would have been appropriate. Understandably, he did not define the tasks involved in that estimate as that was not his focus. 503. In his subsequent medico-legal report dated 5 February 2007, Dr Ellis thought that because there had been no improvement in the plaintiff's condition, and because his condition had deteriorated since the last assessment, he thought that domestic assistance to the extent of at least 4 hours twice per week, namely 8 hours per week, would need to continue. He reiterated that opinion in his subsequent reports that were dated 26 October 2005 and 17 March 2009. 504. In his medico-legal opinion dated 16 May 2007, Associate Professor Spira gave consideration to the plaintiff's claim for domestic assistance. Associate Professor Spira had a report from APC available for his consideration. At the time, he noted the suggestions made by the author of that report and he approved the notion that there may be circumstances where the plaintiff may require attendant care by members of his family when affected by a headache. He noted that at other times the plaintiff was capable of self-care and home handyman activities. He stated that during the times when the plaintiff suffers more significant headache he would be prevented from carrying out the home handyman component of his activities. 505. I do not read the report of Associate Professor Spira as necessarily endorsing the quantification of the recommended hours of domestic assistance to the extent suggested by Ms Laverack, nor do I consider his report to necessarily endorse the claim for past care to the extent either claimed by the plaintiff, or argued by Ms Laverack in her APC report. 506. In her 17 April 2007 report Ms Laverack approached the task of quantifying the provision of care to the plaintiff in a broad fashion spanning the period from 5 September 2000 to 17 April 2007. In respect of that period, she identified the plaintiff's need for the provision of care as follows: (a) 1 hour per week for showering and dressing; (b) 2 hours per week for administering medication, providing drinks and cleaning up after the plaintiff had vomited; (c) 2 hours per week for cleaning; (d) 2 hours per week for laundry, hanging washing and making the bed; (e) 3 hours per fortnight for mowing the lawn in summer and 3 hours per month for lawn mowing in winter; (f) 1.5 hours per week for grocery shopping; (g) 1 hour every 3 months, or 5 minutes per week on home maintenance tasks; 507. I consider the foregoing estimate, which in broad terms totals a little over 10 hours per week, to be excessive and not reflected in the evidence, particularly as Ms Laverack prefaced her remarks by stating the plaintiff was mainly independent in self-care tasks and required assistance with some home duties. 508. The difficulty in relying on Ms Laverack's time estimates for proof of the plaintiff's claim is that this evidence conflicts with the evidence given concerning the plaintiff's own activities of mowing the lawn, albeit that he takes longer to do it. Further, the estimate provided by Ms Laverack, is not supported by the plaintiff's evidence and that of his wife concerning their division of labour relating to domestic tasks. 509. I consider that there is some force in the defendant's submission concerning inclusion in the mix of tasks involving the provision of assistance, namely, activities such as housework as well as outdoor tasks needs to be accommodated as there is some force in that submission. For example, the plaintiff has conceded that he attends to lawn mowing and car maintenance activities. I infer from these matters that he is also capable of carrying out aspects of his allotted share of housework and any required outdoor tasks. There are matters that call for a discounting of the claim for the value of the care provided. 510. I therefore conclude that Ms Laverack's estimate represents an overstatement. I therefore do not accept her estimate in respect of the period to 17 April 2007, as her report does not provide the means by which to discern, other than by impermissible guesswork, the extent to which the 10 hours per week she had put forward, should be reasonably trimmed back. 511. Further, her report does not provide a reasonable means for determining if, once the argued allowance of 10 hours per week is trimmed back to a more realistic estimate, the remaining analysed hours exceed the statutory threshold of 6 hours per week. For quantification purposes, proof of this component of the claim is mandatory and resolution of the issue merely by speculation or inference without specific supporting evidence is impermissible. 512. Whilst the process of inference can in some cases be employed to guard against injustice where to award nothing for such services would be unfair to the injured person, in the context of the policy behind the legislative framework in which this case has to be assessed, that framework requires that the plaintiff has to discharge the onus of proof for an award of damages of this kind. Without specific evidence on the issue to enable an assessment, it is not for the court to engage in unwarranted speculation as to whether or not the statutory threshold required by s 128 of the Act has been met : Luxton v Vines [1952] HCA 19 at [8]; (1952) 85 CLR 352 at p 358. 513. In her report dated 27 June 2007 Ms Barbuto argues that the plaintiff's need for care, both past and future, amounts to about 1.5 hours per week. Accordingly, this report is of no assistance to the plaintiff in seeking to discharge the onus of proof of a claim for 6 hours or more of care per week. 514. This review of the evidence in support of the claim for past domestic assistance reveals there are difficulties of proof that lie in the path of this claim. 515. This analysis leads me to conclude that in respect of the period between the date of his injury on 5 September 2000 and 26 October 2005 which was the date on which Dr Ellis provided his first opinion, the plaintiff has failed to provide the requisite proof of his claim that, as a result of the effects of his injuries, he required domestic care services for 6 hours per week for more than 6 months. 516. Whilst I accept that the plaintiff has periodically suffered from debilitating headaches in that period, I see no satisfactory evidence that establishes that he had in fact received domestic assistance of the level required by s 128(3) of the MAC Act before 26 October 2005, which was the time when Dr Ellis first gave consideration to the problem at his first consultation with the plaintiff. On the state of the evidence in this case I do not consider it appropriate to apply the opinion of Dr Ellis retrospectively when the tasks for assistance are not defined in his report. 517. In some cases, in the absence of direct proof, this type of evidentiary difficulty may be overcome by drawing appropriate inferences from the evidence of the party receiving the assistance, as well as from witnesses who have provided assistance, even though the precise number of hours involved have not been recorded and cannot be counted. 518. However, in this case, in the light of the credit findings I have made concerning the reliability of the evidence of the plaintiff, and having regard to my analysis of the evidence given by his wife as to the extent to which it has been proven that past domestic care services were provided, I do not consider this to be a case where it is appropriate to draw such inferences. Accordingly, in respect of the period between 6 September 2000 and 26 October 2005, I find that the plaintiff has failed to discharge the evidentiary onus of satisfying the requirements of s 128(3) of the MAC Act for proof of that component of his claim. 519. In respect of the period from 26 October 2005 until the commencement of the trial, on the basis of the assessment and opinion of Dr Ellis, which was to a degree approved in principle by Associate Professor Spira, and on the basis of a downward adjustment of the estimate by Ms Laverack of the number of hours per week required by the plaintiff as a result of his injury based on the domestic assistance, I find that the plaintiff is entitled to damages for past domestic assistance provided to him by members of his family, predominantly his wife, at the rate of 6 hours per week. I have arrived at that downward adjustment as a result of a broad assessment of the opinion of Dr Ellis in conjunction with a cautious consideration of the tasks described by the plaintiff, his wife and Ms Laverack. 520. In arriving at this conclusion I have not ignored the opinion of Dr Ellis to the effect that after his second report he increased his recommendation from 6 hours per week to 8 hours per week. I have discounted that 8 hour estimate to 6 hours per week to reflect the fact that Dr Ellis has in part based his opinion on the statements made to him by the plaintiff. I consider that in view of the need to be cautious in accepting the evidence of the plaintiff and his wife as to the assistance tasks described by them, the estimate given by Dr Ellis should be discounted from 8 hours per week to 6 hours per week consistent with a conservative approach that is fair to both the plaintiff and the defendant. 521. The calculation required by s 128(4) of the MAC Act for 6 hours per week is set out in the tabulation comprising the Appendix to these reasons. The amount revealed by that tabulation is $24,230. I therefore assess the plaintiff's entitlement to damages for past domestic assistance in the amount of $24,230. Future domestic assistance 522. Consistent with my findings in respect of the plaintiff's entitlement to damages for past domestic assistance, I am satisfied that since 26 October 2005, the plaintiff's need for past assistance has continued until the present time, such that an assessment of the plaintiff's future need for such domestic assistance is required. 523. On the basis of my already outlined analysis of the expert evidence on domestic assistance issues, I am satisfied that the plaintiff's need for such services will continue indefinitely in respect of his migraine headaches and associated problems. This finding requires some qualification because of the plaintiff's long-standing pre-existing chronic back condition. That is a matter that should be accommodated by a future discount on account of adverse vicissitudes. 524. The plaintiff's primary submission is for a claim for 15 hours of domestic assistance per week at a cost of about $23 per hour or $345 per week, projected over a claimed lifespan of 31 years on the 5 per cent tables (x 883.8) which yields the amount of $287,661. That calculation is based on an averaged s 128 hourly rate, and from that point of view, could be seen to be a conservative method of costing. 525. Although the plaintiff makes an alternative claim based on the commercial rates identified by APC, namely, $44 per hour, I consider the rate applicable under s 128 of the MAC Act to be appropriate in this case because the care in question is of an intermittent non-commercial nature provided by family members. The current s 128(4) rate is $23.48 per hour. 526. The evidentiary basis upon which these claims are advanced is said to be the failure of the plaintiff's condition to ameliorate, despite numerous modalities of treatment, including by Professor Lance, over the 8 years since the date of injury. 527. I have already rejected the claim for 10 – 15 hours per week in respect of the claim for past care. I do not see any sound reason in the evidence for departing from the allowance of 6 hours per week in assessing the cost of the plaintiff's future care needs. I consider this allowance is justified by the plaintiff's ongoing frequent an debilitating headaches. There is no evidence that the required level of care or assistance will increase. 528. For the reasons I have outlined in respect of my analysis of the claim for past domestic care, I do not accept the estimate of the plaintiff concerning his need for future domestic care. The basis for this conclusion are the antecedent findings as to credit that I have already recorded. Similarly, for the reasons I have already outlined in respect of the claim for past domestic care, I consider that the undifferentiated description by Mrs McLennan, concerning the plaintiff's needs for domestic care cannot be accepted at face value because that claim has inter-mingled within it, items of claim that are not recoverable for the reasons already stated in the analysis of the claim for past care. 529. In weighing the appropriate allowance of hours for future domestic assistance I have had regard to the opinion of Ms Barbuto who has suggested the provision of 1.25 hours per week of care for dishwashing, bringing clothes in from the clothesline at times when the plaintiff feels unwell. In my view that report provides an unacceptable estimate of the plaintiff's needs. I take this view for a number of reasons. 530. First, the estimate of 1.25 hours per week is well below what Dr Ellis considers to be reasonable. Secondly, I consider the medical views of Dr Ellis, as adjusted to 6 hours per week, to be more informative than the occupational therapy views of Ms Barbuto. Thirdly, I consider that Ms Barbuto's views have been unduly influenced by pejorative matters she has selectively cited from the plaintiff's medical records and as such, I consider that her opinion is adversely affected by unfairly stated credit based conclusions which the plaintiff had no opportunity to deal with. A prime example of this issue is Ms Barbuto's attempt to highlight her views on inconsistencies in the historical data. One such matter was the irrelevant reference to the opinion of a decades old innuendo from the plaintiff's military file suggesting that on a particular occasion it was thought he might have been "swinging the lead" when in fact he had quite a serious back injury : Mason v Demasi; Container Terminals Australia Ltd v Huseyin. Fourthly, I consider Ms Barbuto's estimate of the plaintiff's need for domestic assistance to be manifestly inadequate having regard to the tasks she described in her allowance, whilst at the same time not providing a balanced discussion as to why she made no time allowances for the matters claimed by the plaintiff to base a need for assistance. 531. For the foregoing reasons, I reject the opinions of Ms Barbuto in this case as having no probative value to the issue calling for decision. 532. Accordingly, based on the opinion of Dr Ellis and aspects of the opinion of Ms Laverack, as well as aspects of the evidence of the plaintiff, I consider that the proper amount for damages for future domestic assistance to be an indefinite allowance of 6 hours per week over the remainder of the plaintiff's probable life span, at the rate of $23.48 per hour, which on the 5 per cent multiplier tables (x 737.8), yields an amount of $103,941. 533. I consider that this amount has to be discounted on account of the plaintiff's chronic pre-existing back condition. There are some competing considerations that need to be weighed in this regard. 534. On the one hand the plaintiff had a chronic back condition that has limited and will continue to limit his activities. The inference is open that as he ages, the restrictions caused by his back condition will not lessen, but rather, will increase, thereby further limiting his ability to undertake physically active tasks around the home, including aspects of self care. 535. On the other hand, the injury in question has caused the plaintiff to become more sedentary, put on more weight and thereby contribute to his back problem. In that sense, the effects of the injury, being a material contributing cause of ongoing back pain, arguably, should not mandate a discount on future damages. I consider that position to be unrealistic as the plaintiff had a serious pre-existing back problem which had the ever-present potential to cause him to suffer significant problems, including in association with activity. 536. Having regard to the plaintiff's pre-existing back condition, which undoubtedly affects his ability to perform a full range of physically dextrous activities and duties, and given the obvious difficulty in seeking an accurate differentiation of the injury related need for domestic assistance, as distinct from the pre-existing incapacity and the potential for that pre-existing capacity to either intermittently restrict or to progressively further restrict the plaintiff's domestic activities, I consider that a greater than usual discount for possible adverse vicissitudes is required. 537. In these circumstances, I consider the appropriate discount on account of possible adverse vicissitudes to be a factor of 25 per cent. Accordingly, applying a discount of 25 per cent to the sum of $103,941, this yields the amount of $77,955. I therefore assess the plaintiff's claim for damages for future domestic assistance in the sum of $77,955. Future out-of-pocket expenses 538. The plaintiff makes a claim of $3000 per annum to cover the cost of future out-of-pocket expenses for his probable future treatment needs over the remainder of his probable life span. The submitted projection of this sum over the plaintiff's remaining lifespan is the equivalent to the amount of $48,103. 539. The sum of $3000 per annum is the equivalent of $57.69 per week. The projection of $57.69 per week at 5 per cent over 24 years (x 737.8) yields the adjusted submission of the plaintiff for future-out-of-pocket expenses to be in the amount of $42,563. 540. The plaintiff submitted that the amount claimed is justified based on the following components from within the evidence of Dr Lorentz: (a) General practitioner consultations /assessments every two months at $50 per visit. This is the equivalent of $300 per annum; (b) Neurological assessments twice a year at $200 per assessment. This is the equivalent of $400 per annum; (c) Medications at $28 per month. This is the equivalent of $336 per annum; (d) Botulinum toxin treatment 3-4 times per annum at $600 per treatment. This is the equivalent of between $1800 and $2400 per annum; (e) The total of these amounts is in the range $2836 to $3436 per annum or between $54.53 per week to $66.07 per week. 541. This foregoing analysis is broadly equivalent to $3000 per annum. The plaintiff points to the 7 March 2009 report of Dr Ellis who has estimated the plaintiff's ongoing treatment costs to be approximately $3000 per annum. It has also been submitted that the report of Dr Maguire suggests the need for counselling for depression to assist with adjustment to the disability of his headaches : Exhibit "10". The plaintiff submits that an additional allowance should be made on account of this factor. This seems a reasonable approach since Dr Tablante's letter of 30 March 2008 to Dr Granot indicated the plaintiff was suffering from reactive depression, as did his letter dated 8 February 2007, indicating the plaintiff's problem with depression was not an isolated event: Exhibit "Y" and Exhibit "A", page 7. 542. The defendant has submitted that the plaintiff should not receive an award for future treatment expenses as the plaintiff claims to have derived no benefit from such treatment. The defendant also points to the fact that the plaintiff has an ongoing entitlement to have his treatment expenses met by virtue of his workers' compensation claim : s 60A of the Workers' Compensation Act 1987. The defendant also points to the fact that the actual cost of the plaintiff's treatment to date has been significantly less than the claimed $3000 per annum. 543. I consider the defendant's submission on the issue of future treatment expenses to be flawed for several reasons. 544. First, the fact that the plaintiff has not derived much benefit from past attempts at treatment is not to the point. The question for analysis is the extent and likely cost of the plaintiff's reasonable need for treatment. The answer to that question is to be found in the analysis of the medical evidence, in conjunction with the plaintiff's duty to mitigate by seeking treatment. In my view this provides the justification for an award of damages to meet the cost of such treatment. 545. Secondly, the submission to the effect that the plaintiff has workers' compensation rights, including the right to have his reasonable treatment expenses met, does not enable a third party tortfeasor to escape liability for damages. Section 60A of the WC Act does not in my view exclude such sums for a damages award under the MAC Act. 546. Thirdly, I consider that when assessing an entitlement to damages for future treatment it is inappropriate to make a comparison between the recommended costs for future treatment and the extent of treatment received to date. These are entirely separate questions and the first does not properly provide the basis for estimating the plaintiff's future need and entitlement for treatment. The comparison the defendant sought to make is not equivalent. The issue under consideration here is the reasonable and probable cost of the plaintiff's future treatment needs, not an assessment of what those treatment needs should be, based on the cost of any past incidence of treatment actually provided. 547. The defendant has submitted that a general lump sum allowance of $5000 should be adequate compensation for the plaintiff's future treatment needs. I regard that sum as being manifestly inadequate having regard to the opinions on future treatment needs as expressed by Dr Lorentz, Dr Ellis and Dr Maguire, whom I accept. 548. I consider the combined formulations by Dr Lorentz, Dr Ellis and Dr Maguire to be generally reasonable, with one exception. 549. The plaintiff makes a claim for the cost of Botulinum toxin treatment of migraines by injection as was suggested by Dr Lorentz. Without intending any criticism whatsoever of Dr Lorentz, the plaintiff has left the evidence on this issue in an entirely speculative state. Dr Lorentz put the suggestion for this treatment forward on the basis that "there is some evidence" it "may be beneficial". Dr Lorentz stated that the plaintiff "may have to undergo special treatment for his headaches". Again, without criticism of Dr Lorentz, this evidence does not satisfy the requisite test for proof of the need for such expenditure. Dr Lorentz indicated the cost of such treatment would be about $2400 per annum. This is the equivalent of $46.15 per week or the projected amount of $33,311. Since the recommendation by Dr Lorentz for Botulinum injection treatment was not followed up by further written or oral evidence to explain or justify the amount claimed, as it easily could have been, on the state in which the evidence has been left I do not accept that component of the claim. 550. On this analysis I consider that the appropriate sum to be allowed for the plaintiff's reasonable future treatment needs should be an amount of $19.92 per week. The projection of $19.92 per week at 5 per cent over 24 years (x 737.8) yields an amount of $14,696. To this sum I add an allowance of $6000 for the arthroscopic subacromial decompressive acromioplasty procedure which Dr Ellis stated was likely to be required because of the evidence of traumatic capsulitis affecting the plaintiff's right shoulder. I therefore assess the plaintiff's entitlement to damages for future out-of-pocket expenses in the sum of $20,696. Past out-of-pocket expenses 551. The plaintiff makes a claim for out-of-pocket expenses in the amount of $11,223.80. 552. These claimed expenses are documented and have already been paid by the workers' compensation insurer and by Medicare. The defendant agrees with the arithmetic total of these claimed expenses but does not concede that the claimed expenses have been reasonably incurred as a consequence of any injuries for which the plaintiff claims. Alternatively, the defendant conceded that any award for out-of-pocket expenses should be limited to $617.70 which related to the time the plaintiff started his stint of work with Woolworths in the months following his injury. 553. The plaintiff submits that the reasoning behind the defendant's stance concerning the documented expenses is difficult to discern as the defendant has called no evidence concerning challenges to specific items of the claimed expenditure that would provide a rational basis for disputing particular items of the plaintiff's claim for out-of-pocket expenses. However, that is not the test. It is for the plaintiff to prove the quantum of his claim. 554. In this regard, the plaintiff points to the evidence of Associate Professor Spira acknowledging that the treatment the plaintiff has received seems to have been reasonable. I infer from that evidence, and the fact that payments have been made by authorities that are accountable for their expenses, namely a workers' compensation insurer and Medicare, that the amounts claimed have been netted before payment and assessed as having been properly incurred. I therefore accept the plaintiff's submission on the claim for out-of-pocket-expenses paid by the workers' compensation insurer and by Medicare, subject to an adjustment to deduct an identified amount of $210, in respect of a non-attendance fee at a medical examination. This reveals a reduced amount of $11,183.92. 555. In addition to this amount, the plaintiff makes a claim for the cost of pharmaceutical expenses he has incurred over the years. This component of the claim is undocumented. That of itself is not necessarily a bar to a claim of this nature being made. However, the state in which the evidence has been left does not enable me to reasonably determine whether the plaintiff has actually incurred such additional amounts. The evidence does not disclose whether the plaintiff claims for gap payments for pharmaceutical costs not paid by an insurer, or for amounts not covered by a pharmaceutical safety net scheme. 556. In some cases evidence is called identifying the nature of such additional expenditure in order to reasonably base an estimate of the probable cost of such items. In this case the plaintiff seeks an inference in order to base an estimate. In view of the credit findings I have made, without some form of reliable corroborative evidence, that is other than from the plaintiff or Mrs McLennan, from which I could reasonably draw the inference sought, I am not prepared to accept this additional aspect of the plaintiff's claim. 557. I therefore assess the plaintiff's claim for out-of-pocket expenses in the sum of $11,183.92. Summary of damages assessment 558. My assessment of the plaintiff's entitlement to damages is summarised as follows: (a) Past loss of earnings $258,000 (b) Fox v Wood $61,276 (c) Future loss of earning capacity $145,845 (d) Past loss of superannuation benefits $28,380 (e) Future loss of superannuation benefits $16,042 (f) Past domestic assistance $24,230 (g) Future domestic assistance $77,955 (h) Future out-of-pocket expenses $20,696 (i) Past out-of-pocket expenses $11,183 Total $643,607 H. DISPOSITION AND ORDERS Disposition 559. I have determined the contentious liability issues in the plaintiff's favour. I have assessed the plaintiff's entitlement to damages in the sum of $643,607. The plaintiff is entitled to a verdict and judgment in his favour in the assessed amount, together with an order for costs Orders 560. I make the following orders: (a) Verdict and judgment for the plaintiff in the sum of $643,607; (b) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (c) The exhibits may be returned; (d) Liberty to apply on 7 days notice if further orders are required. APPENDIX WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT FOR 6 HOURS RATE RATE 1. 26.10.2005 to 18.11.2005 03.28 $874.60 $21.87 $430.40 2. 19.11.2005 to 17.02.2006 12.85 $878.10 $21.95 $1692.34 3. 18.02.2006 to 19.05.2006 12.85 $868.90 $21.72 $1674.61 4. 20.05.2006 to 18.08.2006 12.85 $884.00 $22.10 $1703.91 5. 19.08.2006 to 17.11.2006 12.85 $892.30 $22.31 $1720.10 6. 18.11.2006 to 17.02.2007 13.00 $916.10 $22.90 $1786.20 7. 18.02.2007 to 18.05.2007 12.71 $918.90 $22.97 $1751.69 8. 19.05.2007 to 17.08.2007 12.85 $929.70 $23.24 $1791.80 9. 18.08.2007 to 16.11.2007 12.85 $929.30 $23.23 $1791.03 10. 17.11.2007 to 15.02.2008 12.85 $937.80 $23.45 $1807.99 11. 16.02.2008 to 16.05.2008 12.71 $921.60 $23.04 $1757.03 12. 17.05.2008 to 15.08.2008 12.85 $933.50 $23.34 $1799.51 13. 16.08.2008 to 21.11.2008 13.85 $938.50 $23.46 $1949.52 14. 22.11.2008 to 20.02.2009 12.85 $946.40 $23.66 $1824.18 15. 21.02.2009 to 30.03.2009 05.28 $939.00 $23.48 $743.84 $24230.15 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.